HUD Proposes Fair Housing Harassment Rule

On October 21, HUD published proposed amendments to its fair housing regulations, intending to protect individuals who experience harassment in housing. The courts and HUD have long considered harassment based on race, color, national origin, religion, sex, family status, and disability to be prohibited under the Fair Housing Act. The proposed rule would add definitions of the terms “quid pro quo” (“this for that”) harassment and “hostile environment” harassment to the existing regulation, provide examples of such harassment, specify how HUD would evaluate complaints, and clarify standards for direct liability.

In 1989, HUD issued fair housing regulations at 24 CFR part 100 that generally addressed discriminatory conduct in housing. Those regulations include examples of discriminatory housing practices that have been interpreted to cover quid pro quo sexual harassment and hostile environmental harassment in general, but do not define quid pro quo or hostile environment harassment. On November 13, 2000, HUD published a proposed rule, which was never finalized, that pertained only to sexual harassment. The October 21, 2015 proposed rule is not based solely on sex; rather, it is based on all of the “protected characteristics” (also known as protected classes) under the Fair Housing Act – race, color, national origin, religion, sex, family status, and disability.

Quid pro quo harassment occurs when a person is subjected to an unwelcome request or demand because of the person’s protected characteristic, and going along with the request or demand is either explicitly or implicitly made a condition related to the person’s housing. The proposed rule says that claims of quid pro quo harassment are most typically associated with sex, but may be established on the basis of protected characteristics other than sex. For example, quid pro quo harassment occurs when a housing provider conditions a tenant’s continued housing on the tenant submitting to unwelcome requests for sexual favors.

Hostile environment harassment would be defined to occur when, because of a protected characteristic, a person is subjected to unwelcome conduct that is so severe or pervasive that it interferes with or deprives the victim of her or his right to use and enjoy the housing. Whether a hostile environment has been created would require an assessment of the “totality of the circumstances,” which would include the nature of the conduct; the context in which the conduct took place; the severity, scope, frequency, duration, and location of the incident(s); and the relationship of the persons involved. Assessing the context would involve considering factors such as whether the harassment was in or around the home; whether the harassment was accomplished by use of special privilege by the perpetrator, such as gaining entry to a home through the landlord-tenant relationship; whether a threat was involved; and whether the conduct was likely to or did cause anxiety, fear, or hardship.

As with other discriminatory housing practices prohibited by the Fair Housing Act, any person who claims to have been injured or believes someone else will be injured as a result of quid pro quo or hostile environment harassment is an “aggrieved person” under the Fair Housing Act. For example, children may be aggrieved by harassment directed at their parents because the children may lose their home.

The proposed rule would describe unwelcome conduct to include written, verbal, or other conduct, in addition to physical contact. The forms of unwelcome conduct include threatening imagery such as a swastika or cross burning; damaging property; physical assault; threatening physical harm to an individual, a family member, an assistance animal, or a pet; or impeding the physical access of a person with a mobility impairment. Unwelcome conduct could include taunting related to a person’s disability, or exhibiting hostility toward someone who does not act in a manner that fits gender-based stereotypes.

Finally, the proposed rule intends to clarify standards for liability based on traditional legal principles of tort liability. Under the proposed rule, a person would be directly liable for failing to take prompt action to correct and end a discriminatory housing practice by that person’s employee or agent when the person should have known of the discriminatory conduct. A person would also be directly liable for failing to take prompt action to correct and end harassment by a third party when the person knew or should have known of the harassment, for example a management company staff person who knew of a resident harassing another resident.

When announcing the new rule, HUD Secretary Julián Castro stated, "A home should be a refuge where every woman and man deserves to live without the threat of violence or harassment. The rule HUD is proposing is designed to better protect victims of harassment by offering greater clarity for how to handle a claim against an abuser."

The proposed rule is at http://www.gpo.gov/fdsys/pkg/FR-2015-10-21/pdf/2015-26587.pdf