Osborne: Landlords may be liable for tenant-on-tenant harassment

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By Katie R. Osborne

Some attorneys may be familiar with and can competently advise their clients regarding the federal and state causes of action for hostile work environment. However, there is a similar, lesser-known cause of action for discrimination in the housing context known as “hostile housing environment” that warrants attention in light of a fairly recent opinion by the 7th Circuit Court of Appeals clarifying its scope.

The 7th Circuit first recognized a cause of action for hostile housing environment sex discrimination in DiCenso v. Cisneros, 96 F.3d 1004 (7th Cir. 1996). In DiCenso, the court applied the Title VII standard for hostile work environment to housing discrimination claims, holding that a landlord can be liable to its tenant for sex discrimination, including sexual harassment, “when the offensive behavior unreasonably interferes with [the tenant’s] use and enjoyment of the premises.” Id. at 1008. As in the work context, sex-based harassment in the housing context places an emphasis on the frequency of the offensive behavior, such that isolated incidents may not have sufficient severity to create liability. Id.

DiCenso remained the seminal case for hostile housing environment claims in this circuit for 22 years, until Aug. 27, 2018, when the 7th Circuit decided Wetzel v. Glen St. Andrew Living Community, LLC, 901 F. 3d 856 (7th Cir. 2018). Wetzel involved the claim of Marsha Wetzel, an openly gay female who lived at Glen St. Andrew Living Community (“St. Andrew”), a residential community for older adults. Shortly after moving to St. Andrew, Wetzel had allegedly been openly and repeatedly harassed by other residents because of her sexual orientation. Wetzel routinely reported the verbal and physical abuse she sustained from other residents to the staff at St. Andrew, but the harassment continued and escalated in severity. Id. at 859-60.

Wetzel ultimately filed suit against the entities that owned and operated St. Andrew in the Northern District of Illinois, alleging, in part, that the defendants violated the Fair Housing Act by failing to ensure a non-discriminatory living environment and retaliating against her for reporting the sex-based harassment. The defendants moved for dismissal on the grounds that the Fair Housing Act did not create liability against a landlord for failing to stop tenant-on-tenant harassment unless the landlord’s failure to act arose out of the discrimination. The district court granted the defendants’ motion to dismiss for failure to state a claim upon which relief can be granted. Wetzel appealed, and the matter came before the 7th Circuit. Id.

The issue before the court was one of first impression: whether a landlord could be held liable for failing to stop known tenant-on-tenant harassment when that harassment was based on a protected status, in this case, sex. The court clarified the framework for hostile housing environment claims. To prove a hostile housing environment claim, a plaintiff must show: (1) he/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) there is a basis for imputing liability to the defendant. Id. at 861-62.

After concluding the plaintiff had established the first two elements, the court turned to the crucial element: whether there was a basis for imputing liability on the landlord. Because the Fair Housing Act does not address who may be liable for sex-based discrimination, the court turned to other, analogous anti-discrimination statutes for guidance. The court found most analogous the United States Supreme Court’s treatment of Title IX of the Education Amendments of 1972 in Davis v. Monroe County Board of Education, 526 U.S. 629, 645 (1999), in which the Supreme Court held that a school district could be held liable for failing to respond when one of the students under its authority had engaged in known acts of student-on-student sexual harassment, since the school district “exercised substantial control over both the harasser and the premises on which the misconduct took place.”

The courtcourt adopted this reasoning in Wetzel, reversing the decision of the district court and holding that the Fair Housing Act:

“Not only [creates] liability when a landlord intentionally discriminates against a tenant based on a protected characteristic; [but] also 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.”

The court further held that St. Andrew had objectively retaliated against Wetzel by relegating her to a smaller, less desirable dining room and depriving her of access to common areas and amenities, access to which she had specifically been granted by her lease agreement. Despite its holdings, the Wetzel court clarified that a landlord is not liable for all tenant-on-tenant harassment, but rather the landlord has a duty not to permit known harassment on protected grounds. Id. at 863-66.

The Wetzel decision expanded the scope of federal hostile housing environment claims, and its reach likely extends beyond the federal level. Indiana, like most states, has enacted its own version of the Fair Housing Act, codified at Ind. Code §§ 22-9.5-1-1 et seq. Though not identical to the federal Fair Housing Act, the Indiana Fair Housing Act “borrows heavily” from it, specifically stating that its purpose is to “provide rights and remedies substantially equivalent to those granted under federal law.” Ind. Code § 22-9.5-1-1. Indiana’s courts “look to federal case law for guidance” when interpreting Indiana’s civil rights statutes and generally do not interpret the state’s civil rights laws more narrowly than their federal counterparts. Thus, Indiana state courts, if given the opportunity, will likely find that a cause of action exists for hostile housing environment under the Indiana Fair Housing Act. State, Civil Rights Comm’n v. Cnty. Line Park, Inc., 738 N.E.2d 1044, 1048 (Ind. 2000) (citing Ind. Civil Rights Comm’n v. Alder, 714 N.E.2d 632, 636 (Ind. 1999)). Tenants and landlords should, therefore, be aware of the scope of their respective rights and duties under both acts.•

Katie R. Osborne is an associate at Riley Bennett Egloff in Indianapolis. Opinions expressed are those of the author.

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