Lawsuit: Landlord May be Liable for Tenant-on-Tenant Harassment
By: Gregory P. Kult
The U.S. Court of Appeals for the Seventh Circuit recently ruled that a landlord may be liable under the federal Fair Housing Act (FHA) when it has actual notice of tenant-on-tenant harassment based on a protected class and fails to take reasonable steps within its control to stop that harassment. The case is Wetzel v. Glen St. Andrew Living Community, LLC, 901 F.3d 856 (7th Cir. 2018).
Resident’s Claims and Landlord’s Response
Wetzel claimed that, upon her arrival at Glen St. Andrew Living Community, other residents physically and verbally abused her because she is lesbian. She repeatedly asked St. Andrew staff to help her. Staff responded by limiting her use of common areas and facilities and trying to build a case to evict her. More specific allegations follow (remember that Wetzel’s allegations have not yet been proven).
St. Andrew is a residential community for older adults. Wetzel’s tenancy is governed by a Tenant’s Agreement. She has a private apartment, is guaranteed three daily meals served in a common area, and has access to a community room and laundry facilities. The Tenant’s Agreement conditions tenancy on refraining from activity that unreasonably interferes with the peaceful use and enjoyment of the community by other tenants or that is a direct threat to the health or safety of others. The Tenant’s Agreement also requires compliance with a Tenant’s Handbook, which St. Andrew may amend. A tenant who breaches the Tenant’s Agreement may be evicted. Also, the tenant must reimburse St. Andrew for the attorneys’ fees it incurs because of the breach.
Wetzel spoke openly about her sexual orientation. Over a 15-month period, other tenants verbally and physically harassed her. The harassment included threats, slurs, and physical violence. Wetzel reported the harassment to St. Andrew management several times. Their response was apathetic, and they questioned Wetzel’s honesty. They retaliated against Wetzel by depriving her of access to areas specifically protected in the Tenant’s Agreement, and they falsely accused her of smoking in her room.
Wetzel sued St. Andrew under the FHA, claiming that St. Andrew failed to ensure a non-discriminatory living environment and retaliated against her for complaining. St. Andrew asked a federal district court to dismiss the case, arguing that the FHA cannot apply because Wetzel alleged no facts to suggest that St. Andrew acted (or failed to act) with an intent to discriminate against her. The district court agreed and dismissed the case. The Court of Appeals reversed and ruled that the case should continue, holding that the FHA “creates liability against a landlord that has actual notice of tenant-on-tenant harassment based on a protected status, yet chooses not to take any reasonable steps within its control to stop that harassment.”
Portions of the Court of Appeals’ ruling follow:
- The FHA prohibits a hostile housing environment, that is, discriminatory harassment that unreasonably interferes with the use or enjoyment of a home.
- “A hostile housing environment claim requires a plaintiff to show that (1) she endured unwelcome harassment based on a protected characteristic; (2) the harassment was severe or pervasive enough to interfere with the terms, conditions, or privileges of her residency, or in the provision of services or facilities; and (3) that there is a basis for imputing liability to the defendant.”
- In the Seventh Circuit, which includes Indiana, discrimination based on sexual orientation qualifies as discrimination based on sex under the FHA. In other words, sexual orientation is a protected characteristic under the FHA.
- The harassment described by Wetzel was severe and pervasive enough to interfere with her enjoyment of her dwelling, as it involved, over a period of 15 months, “threats, slurs, derisive comments about her family, taunts about a deadly massacre, physical violence, and spit.”
- Noting that the FHA itself does not provide a test for landlord liability in this context, the Court looked to U.S. Supreme Court cases interpreting analogous federal anti-discrimination laws. After considering Title VII of the Civil Rights Act of 1964 (a federal employment discrimination law) and Title IX of the Education Amendments of 1972 (which seeks in part to eliminate sex discrimination in education), the Court concluded that St. Andrew could be liable for violating the FHA if it deliberately remained indifferent to Wetzel’s reports of harassment by other tenants based on her sexual orientation.
What the Landlord Could Have Done
The Court clarified that it is not imposing a general duty on landlords to protect tenants from discriminatory harassment. It ruled that a landlord’s duty not to discriminate under the FHA includes a duty to take reasonable steps within its control to stop harassment based on a protected characteristic it knows about. The Court noted that, with Wetzel’s complaints, St. Andrew could have:
- Reminded tenants accused of harassment of the potential for eviction and payment of St. Andrews’ attorney fees under the Tenant Agreement;
- Updated the Tenant Handbook with clear anti-harassment and anti-abuse provisions; and/or
- Suspended privileges for tenants who violate the anti-harassment policies to use common areas.
What to Do Now
Landlords should review tenant agreements and policies to determine how they wish to address harassment or other forms of discrimination based on protected classes. Employees should be trained so they know how to respond if a tenant complains of such conduct.
Gregory P. Kult is a Partner at Wooden McLaughlin, LLP.