80 FR 63720 - Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT Federal Register Volume 80, Issue 203 (October 21, 2015)
Federal Register Volume 80, Issue 203 (October 21, 2015)
| Page Range | 63720-63731 | |
| FR Document | 2015-26587 |
[Federal Register Volume 80, Number 203 (Wednesday, October 21, 2015)] [Proposed Rules] [Pages 63720-63731] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-26587] [[Page 63720]] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT 24 CFR Part 100 [Docket No. FR-5248-P-01] RIN 2529-AA94 Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act AGENCY: Office of the Assistant Secretary for Fair Housing and Equal Opportunity, HUD. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: Through this rule, HUD proposes to amend its fair housing regulations to formalize standards for use in investigations and adjudications involving alleged harassment on the basis of race, color, religion, national origin, sex, familial status or disability under the Fair Housing Act. The proposed standards would specify how HUD would evaluate complaints of quid pro quo (``this for that'') harassment and hostile environment harassment and provide for uniform treatment of Fair Housing Act claims raising such allegations in the federal courts. This proposed rule defines ``quid pro quo'' and ``hostile environment harassment,'' as prohibited under the Fair Housing Act, and adds illustrations of discriminatory housing practices that constitute such harassment. In addition, the proposed rule clarifies the operation of traditional principles of direct and vicarious liability under the Fair Housing Act. DATES: Comment Due Date: December 21, 2015. ADDRESSES: Interested persons are invited to submit comments regarding this proposed rule to the Regulations Division, Office of General Counsel, 451 7th Street SW., Room 10276, Department of Housing and Urban Development, Washington, DC 20410-0500. Communications must refer to the above docket number and title. There are two methods for submitting public comments. All submissions must refer to the above docket number and title. 1. Submission of Comments by Mail. Comments may be submitted by mail to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500. 2. Electronic Submission of Comments. Interested persons may submit comments electronically through the Federal eRulemaking Portal at www.regulations.gov. HUD strongly encourages commenters to submit comments electronically. Electronic submission of comments allows the commenter maximum time to prepare and submit a comment, ensures timely receipt by HUD, and enables HUD to make them immediately available to the public. Comments submitted electronically through the www.regulations.gov Web site can be viewed by other commenters and interested members of the public. Commenters should follow the instructions provided on that site to submit comments electronically. Note: To receive consideration as public comments, comments must be submitted through one of the two methods specified above. Again, all submissions must refer to the docket number and title of the rule. No Facsimile Comments. Facsimile (fax) comments are not acceptable. Public Inspection of Public Comments. All properly submitted comments and communications submitted to HUD will be available for public inspection and copying between 8 a.m. and 5 p.m. weekdays at the above address. Due to security measures at the HUD Headquarters building, an advance appointment to review the public comments must be scheduled by calling the Regulations Division at 202-708-3055 (this is not a toll-free number). Individuals who are deaf, are hard of hearing, or have speech impairments may access this number through TTY by calling the Federal Relay Service at 800-877-8339. Copies of all comments submitted are available for inspection and downloading at www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Lynn Grosso, Acting Deputy Assistant Secretary for Enforcement and Programs, Office of Fair Housing and Equal Opportunity, Department of Housing and Urban Development, 451 Seventh Street SW., Room 5204, Washington, DC 20410-2000; telephone number 202-402-5361 (this is not a toll-free number). Persons with hearing or speech impairments may contact this number via TTY by calling the toll-free Federal Relay Service at 800-877-8339. SUPPLEMENTARY INFORMATION: I. Executive Summary A. Purpose of the Regulatory Action Need for the Regulation. A regulation is needed to formalize the standards for investigations and adjudications under the Fair Housing Act (Fair Housing Act or Act) involving alleged harassment. Both HUD and the courts have long recognized that the Fair Housing Act prohibits harassment in housing and housing-related transactions because of race, color, religion, sex, national origin, disability \1\ and familial status, just as Title VII of the Civil Rights Act (42 U.S.C. 2000e et se.) prohibits such harassment in employment. However, to date, no standards have been formalized for assessing claims of harassment under the Fair Housing Act. Courts have often applied standards first adopted under Title VII to evaluate claims of harassment under the Fair Housing Act, but such standards are not always the most suitable for assessing claims of harassment in housing discrimination cases given the differences between harassment in the workplace and harassment in or around one's home. Therefore, this rule proposes to formalize standards determined to be appropriate for evaluating claims of quid pro quo and hostile environment harassment in the housing context and provides some examples of their application. --------------------------------------------------------------------------- \1\ This rule uses the term ``disability'' to refer to what the Fair Housing Act and its implementing regulations refer to as a ``handicap.'' Both terms have the same legal meaning. See Bragdon v. Abbott, 524 U.S. 624, 631 (1998). --------------------------------------------------------------------------- In addition to formalizing standards for assessing claims of harassment under the Fair Housing Act, a regulation is needed to clarify when housing providers and other covered entities or individuals may be held directly or vicariously liable under the Act for illegal harassment or other discriminatory housing practices. HUD proposes to set forth by regulation how these traditional liability standards apply in the housing context because, in HUD's experience, there is significant misunderstanding among public and private housing providers as to the circumstances under which they will be subject to liability under the Fair Housing Act for discriminatory housing practices undertaken by others. How the Rule Meets the Need. This proposed rule meets the need described above by formalizing and providing uniform standards for evaluating complaints of quid pro quo and hostile environment harassment under the Fair Housing Act. The rule does so by defining ``quid pro quo'' and ``hostile environment harassment'' as conduct prohibited under the Act, describing the types of conduct that may establish a claim of either type of harassment, and specifying the factors to be considered when evaluating whether particular conduct creates a hostile environment in violation of the Act. Such standards would apply both in administrative adjudications under the Act and in Fair Housing Act cases brought in federal and state courts. This proposed rule also [[Page 63721]] meets the need for regulatory action by adding to HUD's existing Fair Housing Act regulations illustrations of discriminatory housing practices that constitute illegal quid pro quo and hostile environment harassment. By establishing consistent standards for evaluating claims of quid pro quo and hostile environment harassment, this proposed rule would provide guidance to providers of housing or housing-related services seeking to ensure that their properties or businesses are free of unlawful harassment. The rule also strives to provide clarity to victims of harassment and their representatives as to how to assess potential claims of illegal harassment under the Act. Finally, this proposed regulation describes direct and vicarious liability under the Fair Housing Act, thereby providing both aggrieved persons and housing providers with guidance as to when a party may be held liable for specific discriminatory acts or practices. Legal Authority for the Regulation. The legal authority for this regulation is found in the Fair Housing Act. Specifically, section 808(a) of the Act gives the Secretary of HUD the ``authority and responsibility for administering this Act.'' 42 U.S.C. 3608(a). In addition, section 815 of the Act provides that ``[t]he Secretary may make rules (including rules for the collection, maintenance, and analysis of appropriate data) to carry out this title. The Secretary shall give public notice and opportunity for comment with respect to all rules made under this section.'' 42 U.S.C. 3614a. HUD also has general rulemaking authority, under the Department of Housing and Urban Development Act, to make such rules and regulations as may be necessary to carry out its functions, powers, and duties. See 42 U.S.C. 3535(d). B. Summary of Major Provisions This rule proposes to codify through regulation the principles that quid pro quo and hostile environment harassment on the basis of race, color, national origin, religion, sex, disability or familial status (``protected characteristic'') violate one or more provisions of the Fair Housing Act. As noted above, the proposed rule would define ``quid pro quo'' and ``hostile environment'' harassment under the Fair Housing Act, add illustrations of prohibited ``quid pro quo'' and ``hostile environment'' harassment, and address how the traditional standards for direct and vicarious liability operate in the Fair Housing Act context, including for claims of harassment. As proposed to be defined, ``quid pro quo harassment'' occurs when a person is subjected to an unwelcome request or demand because of the person's protected characteristic and submission to the request or demand is, either explicitly or implicitly, made a condition related to the person's housing. A person's conduct may constitute quid pro quo harassment even where the victim acquiesces or submits to the unwelcome request or demand. As proposed to be defined, ``hostile environment harassment'' occurs when, because of a protected characteristic, a person is subjected to unwelcome conduct that is sufficiently severe or pervasive such that it interferes with or deprives the victim of his or her right to use and enjoy the housing or to exercise other rights protected by the Act. The proposed rule further explains that whether a hostile environment has been created requires an assessment of the totality of the circumstances, which includes, but is not limited to, the nature of the conduct; the context in which the conduct occurred; the severity, scope, frequency, duration, and location of the incident(s); and the relationships of the persons involved. For purposes of clarity and guidance, the proposed rule would add to HUD's existing Fair Housing Act regulations examples of prohibited quid pro quo and hostile environment harassment under the Act. The proposed rule also would describe ``direct liability'' and ``vicarious liability'' as applied to all violations under the Act, not solely harassment. The standards for both types of liability incorporated into the proposed rule follow well-established common law tort and agency principles and do not subject respondents or defendants to enhanced liability for violations of the Act. Under such standards, a person is directly liable for his or her own discriminatory housing practices and, in certain circumstances, is directly liable for actions taken by others, including agents, when the person knew or should have known of the discriminatory conduct and failed to take prompt corrective action that ends it. The proposed rule would also clarify that direct liability for the actions of non-agents occurs only when a person fails to fulfill a duty to take prompt action to correct and end a non-agent's discriminatory conduct, of which the person knew or should have known. In contrast to direct liability for the conduct of another, a person may be vicariously liable for the conduct of his or her agents regardless of whether the person knew of or intended the wrongful conduct or was negligent in preventing the conduct from occurring.\2\ Vicarious liability occurs when the discriminatory actions of the agent are taken within the scope of the agency relationship, or are committed outside the scope of the agency relationship but the agent was aided in the commission of such acts by the existence of the agency relationship. To clarify the distinction between these two forms of liability--direct and vicarious--without codifying specific common law liability standards, the proposed rule simply adds a provision stating that a person may be vicariously liable for the discriminatory acts of his or her agent. This provision is consistent with the holding of Meyer v. Holley, 537 U.S. 280, 285-289 (2003) that traditional principles of agency law apply in fair housing cases.\3\ --------------------------------------------------------------------------- \2\ An agency relationship is created by contract or by law. Generally, an agency relationship is an arrangement in which one entity or person (the principal) appoints another (the agent) to act on its behalf. However, this proposed rule does not purport to define what constitutes an agency relationship. \3\ See also, e.g., Boswell v. Gumbaytay, 2009 WL 1515872, *3 (M.D. Ala. 2009) (discussing vicarious liability of property management companies); Glover v. Jones, 522 F. Supp. 2d 496, 506-08 (W.D.N.Y. 2007) (property management company can be vicariously liable for sexual harassment); Williams v. Poretsky Mgmt., 955 F. Supp. 490, 496 (D. Md. 1996) (rental company may be liable for employee's sexual harassment of tenant). --------------------------------------------------------------------------- C. Costs and Benefits Because the rule does not add any new forms of liability under the Act, but rather formalizes clear, consistent, nationwide standards for evaluating harassment cases under the Fair Housing Act, the rule adds no additional costs to housing providers and others engaged in housing transactions. Rather, the rule will assist in ensuring compliance with the Act by defining quid pro quo and hostile environment harassment that violates the Act and by specifying traditional tort and agency law standards for assessing direct and vicarious liability, consistent with Supreme Court precedent. Articulating clear standards enables entities subject to the Act's prohibitions and persons protected by its terms to understand the types of conduct that constitute actionable quid pro quo and hostile environment harassment under the Act. This should facilitate more effective training to avoid discriminatory harassment in housing and should decrease the need for protracted litigation to resolve disputed claims. II. Background Title VIII of the Civil Rights Act of 1968, as amended (the Fair Housing [[Page 63722]] Act), prohibits discrimination in the availability and enjoyment of housing and housing-related services, facilities, transactions and brokerage businesses because of race, color, national origin, religion, sex, disability and familial status. 42 U.S.C. 3601-19. The Act contains broad prohibitions against discrimination because of a protected characteristic. See 42 U.S.C. 3604, 3605, 3606 and 3617. These provisions prohibit, among other things, discriminatory statements, refusals to rent or sell, denying access to services, setting different terms and conditions, refusing to make reasonable modifications and accommodations, discriminating in residential real estate transactions, and retaliation. In 1989, HUD promulgated fair housing regulations at 24 CFR part 100 that address discriminatory conduct in housing generally. The 1989 regulations include examples of discriminatory housing practices that have been interpreted to cover quid pro quo sexual harassment and hostile environment harassment generally. Section 100.65(b)(5) identifies, as an example of unlawful conduct, denying or limiting housing-related services or facilities because a person refused to provide sexual favors. Section 100.400(c)(2) offers as an example of illegal conduct ``. . . interfering with persons in their enjoyment of a dwelling because of race, color, religion, sex, disability, familial status, or national origin of such persons, or of visitors or associates of such persons.'' The 1989 regulations do not, however, define quid pro quo or hostile environment harassment, specify standards for examining such claims, or provide illustrations of other types of quid pro quo or hostile environment harassment prohibited by the Act. Nor do the 1989 regulations discuss liability standards for prohibited harassment or other discriminatory housing practices. On November 13, 2000, HUD published a proposed rule entitled ``Proposed Fair Housing Act Regulations Amendment Standards Governing Sexual Harassment Cases'' (65 FR 67666) seeking comment on standards to be used in evaluating sexual harassment complaints. HUD never issued final regulations pursuant to that proposed rule. Because this proposed rule addresses harassment more broadly, based on any characteristic protected by the Act and not solely because of sex, this proposed rule is not a continuation of the 2000 rulemaking. Over time, forms of harassment that violate the civil rights laws have coalesced into two legal doctrines--quid pro quo and hostile environment. Although HUD and the courts have recognized that the Fair Housing Act prohibits harassment because of race or color,\4\ disability,\5\ religion,\6\ national origin,\7\ familial status,\8\ and sex,\9\ the doctrines of quid pro quo and hostile environment harassment are not well developed under the Fair Housing Act. --------------------------------------------------------------------------- \4\ See, e.g., Smith v. Mission Assoc. Ltd. P'ship, 225 F. Supp. 2d 1293, 1298-99 (D. Kan. 2002) (42 U.S.C. 3604(b)); HUD v. Tucker, 2002 WL 31018606, *3-4 (HUD ALJ 2002) (42 U.S.C. 3604(a) and (b)). \5\ See, e.g., Neudecker v. Boisclair Corp., 351 F. 3d 361, 364 (8th Cir. 2003) (42 U.S.C. 3604(f)(2)). \6\ See, e.g., Bloch v. Frischholz, 587 F. 3d 771, 787 (7th Cir. 2009) (42 U.S.C. 3604, 3617). \7\ See, e.g., Effendi v. Amber Fields Homeowners Assoc., 2011 U.S. Dist. Lexis 35265, *1 (N.D. Ill. 2011) (42 U.S.C. 3604(b) and 3617); Texas v. Crest Asset Mgmt., 85 F. Supp. 722, 736 (S.D. TX 2000) (42 U.S.C. 3604(a) and (b), 3617). \8\ See, e.g., Bischoff v. Brittain, 2014 U.S. Dist. LEXIS 145945, *13-14, *17 (E.D. Cal. 2014) (3604(b)); United States v. M. Westland Co., 1995 U.S. Dist. LEXIS 22466, *4 (C.D. Cal. 1995) (Fair Housing Act provision not specified). \9\ See, e.g., Quigley v. Winter, 598 F. 3d 938, 946 (8th Cir. 2010) (42 U.S.C. 3617); Krueger v. Cuomo, 115 F. 3d 487, 491 (7th Cir. 1997) (42 U.S.C. 3604, 3617); Honce v. Vigil, 1 F. 3d 1085, 1088 (10th Cir. 1993) (42 U.S.C. 3604(b)); Shellhammer v. Lewallen, 770 F. 2d 167 (6th Cir. 1985) (sexual harassment under the Fair Housing Act in general). --------------------------------------------------------------------------- To date, when deciding harassment cases, courts have often looked to case law decided under Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000 et se.) (Title VII), which prohibits employment discrimination because of race, color, religion, sex and national origin.\10\ But the home and the workplace are significantly different environments such that strict reliance on Title VII case law is not always appropriate. One's home is a place of privacy, security, and refuge (or should be), and harassment that occurs in or around one's home can be far more intrusive, violative, and threatening than harassment in the more public environment of one's work place.\11\ Moreover, as discussed below, the Supreme Court has historically recognized that individuals have heightened rights within the home for privacy and freedom from unwelcome speech, among other things.\12\ --------------------------------------------------------------------------- \10\ See, e.g., Honce v. Vigil, 1 F. 3d 1085, 1088 (10th Cir. 1993); Shellhammer v. Lewallen, 770 F. 2d 167 (6th Cir. 1985); Glover v. Jones, 522 F. Supp. 2d 496, 503 (W.D.N.Y. 2007); Beliveau v. Caras, 873 F. Supp. 1393, 1396 (C.D. Cal. 1995); see also Neudecker v. Boisclair Corp., 351 F. 3d 361, 364 (8th Cir. 2003) (applying Title VII concepts to find hostile environment based on disability violated Act). Unlike Title VII, Title VIII also includes disability and familial status among its protected characteristics. \11\ See, e.g., Quigley v. Winter, 598 F. 3d 938, 947 (8th Cir. 2010) (emphasizing that defendant's harassing conduct was made ``even more egregious'' by the fact that it occurred in plaintiff's home, ``a place where [she] was entitled to feel safe and secure and need not flee.''); Salisbury v. Hickman, 974 F. Supp. 2d 1282, 1292 (E.D. Cal. 2013) (``[c]ourts have recognized that harassment in one's own home is particularly egregious and is a factor that must be considered in determining the seriousness of the alleged harassment''); Williams v. Poretsky Management, 955 F. Supp. 490, 498 (D. Md. 1996) (noting sexual harassment in the home more severe than in workplace); Beliveau v. Caras, 873 F. Supp. 1393, 1398 (C.D. Cal. 1995) (describing home as place where one should be safe and not vulnerable to sexual harassment); D. Benjamin Barros, Home As a Legal Concept, 46 Santa Clara L. Rev. 255, 277-82 (2006) (discussing legal concept of home as source of security, liberty and privacy which justifies favored legal status in many circumstances); Nicole A. Forkenbrock Lindemyer, Article, Sexual Harassment on the Second Shift: The Misfit Application of Title VII Employment Standards to Title VIII Housing Cases, 18 Law & Ineq. 351, 368-80 (2000) (noting that transporting of Title VII workplace standards for sexual harassment into Fair Housing Act cases of residential sexual harassment ignores important distinctions between the two settings); Michelle Adams, Knowing Your Place: Theorizing Sexual Harassment at Home, 40 Ariz. L. Rev. 17, 21-28 (1998) (describing destabilizing effect of sexual harassment in the home). \12\ See e.g. Frisby v. Schultz, 487 U.S. 474, 484 (1988) (``[w]e have repeatedly held that individuals are not required to welcome unwanted speech into their own homes and that the government may protect this freedom''). --------------------------------------------------------------------------- Therefore, this proposed rule would provide regulations to address specifically harassment in one's home and would make clear the differences between quid pro quo and hostile environment harassment in the home and in the work place. While Title VII and Fair Housing Act case law contain many similar concepts, this proposed regulation describes the appropriate analytical framework for harassment claims under the Fair Housing Act. The proposed rule addresses only quid pro quo and hostile environment harassment, and not conduct generically referred to as harassment that, for different reasons, may violate section 818 or other provisions of the Act. For example, a racially hostile statement by a housing provider to a tenant could indicate a discriminatory preference in violation of section 804(c) of the Act, or it could evidence intent to deny housing or discriminate in the terms or conditions of housing under sections 804(a) or 804(b), even if the statement does not create a hostile environment or establish a quid pro quo. Section 818, which makes it unlawful to ``coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of'' rights protected by the Act, or on account of a person having aided others in exercising or enjoying rights protected by the Act, could be violated by conduct that creates a quid pro quo or hostile environment, or by other conduct that constitutes retaliation or another form of coercion, intimidation, threats, or interference because of a protected characteristic.\13\ Section 818 [[Page 63723]] prohibits quid pro quo or hostile environment harassment, but is not limited to quid pro quo or hostile environment claims. In addition, the same discriminatory conduct could violate more than one provision of the Act.\14\ --------------------------------------------------------------------------- \13\ A violation of section 818 may be established by the standards for quid pro quo or hostile environment harassment set out in the rule or by the elements of a section 818 violation based on other types of unlawful coercion, intimidation, threats, or interference. The elements of a section 818 violation based on these other types of unlawful conduct mirror its language: (i) Plaintiff or complainant exercised or enjoyed a right guaranteed by 42 U.S.C. 3603-3606; (2) defendant's or respondent's conduct constituted coercion, intimidation, a threat, or interference; and (3) a causal connection exists between the exercise or enjoyment of a right and defendant's or respondent's conduct. See, e.g., Bloch v. Frischholz, 587 F. 3d 771, 783 (7th Cir. 2009); Hood v. Midwest Sav. Bank, 95 Fed. Appx. 768, 779 (6th Cir. 2004); Nguyen v. Patek, 2014 U.S. Dist. LEXIS 147295, *7-8 (N.D. Ill. 2014) (denying motion to dismiss where Vietnamese-American plaintiffs alleged white neighbors interfered with enjoyment of their housing rights by subjecting them to pattern of race and national origin harassment); Wells v. Rhodes, 928 F. Supp. 2d 920, 933 (S.D. OH. 2013) (granting plaintiffs' motion for summary judgment because a reasonable jury could conclude that ``burning a cross on Plaintiffs' front lawn, with `KKK will make you pay' and the N-word written on it, is certainly interference (or perhaps more accurately a threat or intimidation) within the broad meaning of Sec. 3617''); Ohana v. 180 Prospect Place Realty, 996 F. Supp. 238, 243 (E.D.N.Y. 1998) (denying defendants' motion to dismiss where defendants interfered with plaintiffs' quietude by making racial and anti-Jewish slurs and epithets, threats of bodily harm, and noise disturbances). See also Robert G. Schwemm, Neighbor-on-Neighbor Harassment: Does the Fair Housing Act Make a Federal Case Out of It?, 61 Case W. Res. L. Rev. 865 (2011). \14\ See 24 CFR 100.50(a). --------------------------------------------------------------------------- In sum, this proposed rule would provide standards that are uniformly applicable to claims of quid pro quo and hostile environment harassment under the Fair Housing Act, regardless of the section of the Act that is alleged to have been violated. These standards would be useful to victims of harassment as well as housing providers seeking to ensure their properties are free of illegal harassment. The proposed rule also provides HUD investigators and administrative law judges, other government agencies, and courts with the appropriate standards to be applied to claims of quid pro quo and hostile environment harassment in the housing context. III. This Proposed Rule This proposed rule would amend 24 CFR part 100 to establish a new subpart H, entitled ``Quid Pro Quo and Hostile Environment Harassment,'' which would define ``quid pro quo'' and ``hostile environment harassment'' under the Fair Housing Act. This proposed rule would also add new illustrations of prohibited harassment throughout part 100 by amending existing Sec. Sec. 100.60, 100.65, 100.80, 100.90, 100.120, 100.130, and 100.135, and a new Sec. 100.7, addressing how the traditional standards for direct and vicarious liability operate in the Fair Housing Act context, including for claims of harassment. A. Quid Pro Quo and Hostile Environment Harassment The proposed rule establishes within proposed Subpart H a new Sec. 100.600, entitled ``Quid Pro Quo and Hostile Environment Harassment,'' which addresses what conduct constitutes these types of harassment under the Fair Housing Act. This section states that quid pro quo harassment and hostile environment harassment on the basis of race, color, national origin, religion, sex, disability, or familial status violate one or more of the prohibitions against discrimination found in sections 804, 805, 806 and 818 of the Fair Housing Act. As with other discriminatory housing practices prohibited by the Act, any person who claims to have been injured or believes such person will be injured by prohibited harassment is an aggrieved person under the Act, even if that person is not directly targeted by the harassment.\15\ For example, children may be aggrieved by harassment directed at their parents because the children may lose their housing. Similarly, a person is aggrieved if that person is denied or delayed in receiving a housing-related opportunity or benefit because another received the benefit. If, for example, a property manager awards an apartment to an applicant in exchange for sexual favors, the other applicants who were denied the apartment are aggrieved persons.\16\ --------------------------------------------------------------------------- \15\ 42 U.S.C. 3602(i); see also 24 CFR 100.20. \16\ See, e.g., Fair Hous. Council v. Penasquitos Casablanca Owner's Ass'n, 381 Fed. Appx. 674 (9th Cir. 2010) (holding that minor children need not be the targets of sexual harassment directed at their mother but need only suffer ``actual injury as a result of the defendant's conduct'' to establish standing) (quoting Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 103 n.9 (1979)); Shellhammer v. Lewallen, 770 F. 2d 167 (6th Cir. 1985) (upholding a finding of discrimination in favor of plaintiffs, wife and husband, who had been evicted after wife rebuffed defendant landlord's sexual advances); Grieger v. Sheets, 689 F. Supp. 835 (N.D. Ill. 1988) (upholding both hostile environment and quid pro quo sexual harassment claims made by plaintiffs, wife and husband, where: landlord made sexual advances to the wife, landlord threatened to shoot the husband after he confronted the landlord, and landlord refused to make promised repairs after wife rebuffed landlord's advances). Cf. 29 CFR 1604.11(g) (EEOC regulation providing that ``[w]here employment opportunities or benefits are granted because of an individual's submission to the employer's sexual advances or requests for sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who were qualified for but denied that employment opportunity or benefit.''). --------------------------------------------------------------------------- 1. Quid Pro Quo Harassment Paragraph (a)(1) of new Sec. 100.600 would address quid pro quo harassment under the Fair Housing Act. Paragraph (a)(1) provides that quid pro quo harassment occurs when a person is subjected to an unwelcome request or demand because of race, color, religion, sex, national origin, disability, or familial status, and submission to the request or demand is, either explicitly or implicitly, made a condition related to his or her housing. Claims of quid pro quo harassment may be established on the basis of protected characteristics other than sex. The theory, however, has most typically been associated with sex. For example, quid pro quo harassment occurs when a housing provider conditions a tenant's continued housing on the tenant's submission to unwelcome requests for sexual favors.\17\ Similarly, conditioning the receipt of privileges or services in connection with housing or conditioning access to residential real estate-related transactions on acquiescence to unwelcome requests or demands for sexual favors is illegal quid pro quo harassment.\18\ A person's conduct may constitute quid pro quo harassment even where the victim acquiesces or submits to the unwelcome request or demand. For example, if a housing manager demands sexual favors under threat of eviction and the resident acquiesces in order to keep her housing, quid pro quo harassment has occurred.\19\ Conversely, a person's conduct may constitute quid pro quo harassment where the person takes or threatens to take an action that adversely affects the victim because the victim has refused to acquiesce or submit to the unwelcome demand.\20\ --------------------------------------------------------------------------- \17\ See, e.g., Woods v. Foster, 884 F. Supp. 1169, 1175 (N.D. Ill. 1995) (shelter resident submitted to manager's demands for sex in exchange for retaining her housing); cf United States v. Koch, 352 F. Supp. 2d 970, 981-83 (D. Neb. 2004) (in hostile environment case, some tenants submitted to sexual demands of landlord in order to preserve their housing). \18\ See, e.g., Boswell v. Gumbaytay, 2009 WL 1515872, *5 (M.D. Ala. 2009) (conditioning rent amount and repairs to the dwelling on whether sexual favors are granted); Grieger v. Sheets, 689 F. Supp. 835 (N.D. Ill. 1988) (conditioning tenancy and repairs to dwelling on sexual favors from tenant). \19\ See, e.g., cases cited at n. 17, supra. \20\ See, e.g., Krueger v. Cuomo, 115 F. 3d 487, 490 (7th Cir. 1997) (landlord evicted tenant after she rebuffed his advances and filed a housing discrimination claim against him); Miles v. Gilray, 2012 U.S.Dist. LEXIS 90941 at *2, *7 (W.D. N.Y. 2012) (mobile home park operator served termination notice when plaintiffs rebuffed sexual advances); HUD v. Kogut, 1995 HUD ALJ LEXIS 52. *39 (HUD ALJ 1995) (property manager evicted tenant after she rebuffed his sexual advances). --------------------------------------------------------------------------- [[Page 63724]] 2. Hostile Environment Harassment Paragraph (a)(2) of proposed new Sec. 100.600 addresses hostile environment harassment under the Fair Housing Act. Paragraph (a)(2) provides that hostile environment harassment occurs when unwelcome conduct because of race, color, national origin, religion, sex, disability or familial status, is sufficiently severe or pervasive as to create an environment that unreasonably interferes with the availability, sale, rental, use, or enjoyment of a dwelling, the provision or enjoyment of facilities or services in connection therewith, or the availability or terms of residential real estate- related transactions.\21\ It is well recognized that claims of hostile environment harassment should be evaluated from the perspective of a reasonable person in the aggrieved person's position.\22\ --------------------------------------------------------------------------- \21\ See, e.g., Quigley v. Winter, 598 F. 3d 938, 946 (8th Cir. 2010) (sex); Neudecker v. Boisclair Corp., 351 F. 3d 361, 364 (8th Cir. 2003) (disability); Krueger v. Cuomo, 115 F. 3d 487, 491 (7th Cir. 1997) (sex); Honce v. Vigil, 1 F. 3d 1085, 1088 (10th Cir. 1993) (sex); Smith v. Mission Assoc. Ltd. P'ship, 225 F. Supp. 2d 1293, 1298-99 (D. Kan. 2002) (race). \22\ See, e.g., Williams v. Poretsky Mgmt., 955 F. Supp. 490, 497 (D. Md. 1996) (in hostile environment sexual harassment case under the Act, noting that ``[w]hether a reasonable person would have been detrimentally affected by the harassment to which [plaintiff was] subjected is quintessentially a question of fact.'') (emphasis added) (quotations omitted); Beliveau v. Caras, 873 F. Supp. 1393, 1397-98 (C.D. Cal. 1995) (adopting ``reasonable woman standard'' in hostile environment sexual harassment case under the Act and observing that ``women remain disproportionately vulnerable to rape and sexual assault, which can and often does shape women's interpretations of words or behavior of a sexual nature, particularly if unsolicited or occurring in an inappropriate context.''). See also Burlington Northern and Santa Fe Ry. v. White, 548 U.S. 53, 68-9 (2006) (using ``reasonable employee'' standard in Title VII case); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21- 22 (1993) (applying an objective and subjective reasonable person standard). --------------------------------------------------------------------------- Establishing hostile environment harassment requires a showing that: A person was subjected to unwelcome spoken, written or physical conduct; the conduct was because of a protected characteristic; and the conduct was, considering the totality of circumstances, sufficiently severe or pervasive that it unreasonably interfered with or deprived the victim of his or her right to use and enjoy the housing or to exercise other rights protected by the Act. a. Totality of the Circumstances Proposed Sec. 100.600(a)(2)(i), entitled ``Totality of the circumstances,'' specifies that whether hostile environment harassment exists depends upon the totality of the circumstances. Proposed Sec. 100.600(a)(2)(i)(A) provides that the factors to be considered in determining whether a hostile environment has been created include, but are not limited to, the nature of the conduct; the context in which the conduct occurred; the severity, scope, frequency, duration, and location of the incident(s); and the relationships of the persons involved.\23\ Assessment of the context in which the conduct occurred involves consideration of such factors as whether the harassment was in or around the home; whether the harassment was accomplished by use of a special privilege of the perpetrator (e.g., using a passkey or gaining entry by reason of the landlord-tenant relationship); whether a threat was involved; and whether the conduct was likely to or did cause anxiety, fear or hardship. --------------------------------------------------------------------------- \23\ See, e.g., Hall v. Meadowood, 7 Fed. Appx. 687, 689 (9th Cir. 2001) (describing circumstances to be considered in hostile environment case as including frequency of offensive conduct; severity; whether it involves threats, humiliation or ``mere offensive utterance;'' and whether it unreasonably interferes living conditions); see also Harris, 510 U.S. at 23 (factors to consider when determining whether a work environment is hostile under Title VII may include ``the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance''). --------------------------------------------------------------------------- In considering whether the totality of the circumstances evidences hostile environment harassment, it is particularly important to consider the place where the conduct occurred. Often in a fair housing case the harassment will occur in or around the home, which should be a haven of privacy, safety and security. The Supreme Court has repeatedly recognized that heightened rights exist within the home for, among other things, privacy and freedom from intrusive speech.\24\ For example, in a case decided under the Equal Protection Clause, the Court described the sanctity of the home as follows: --------------------------------------------------------------------------- \24\ See, e.g., Fla. Bar v. Went For It, Inc., 515 U.S. 618, 625 (1995) (describing home as place to ``avoid intrusions''); O'Connor v. Ortega, 480 U.S. 709, 724 (1987) (holding reasonableness standard is proper for workplace searches because employee's expectation of privacy is much less than when they are at home); Cohen v. California, 403 U.S. 15, 21-22 (1971) (``[T]his court has recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue . . . [Regarding the] claim to a recognizable privacy interest . . ., surely there is nothing like the interest in being free from unwanted expression in the confines of one's own home.''). Preserving the sanctity of the home, the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits, is surely an important value. Our decisions reflect no lack of solicitude for the right of an individual ``to be let alone'' in the privacy of the home, ``sometimes the last citadel of the tired, the weary, and the sick.'' The State's interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.\25\ --------------------------------------------------------------------------- \25\ Carey v. Brown, 447 U.S. 455, 471 (1980) (quoting Gregory v. City of Chicago, 394 U.S. 111, 125 (1969) (Black, J., concurring)) When harassment occurs in the workplace, the victim can escape to his home. In contrast, when harassment occurs in and around the home, the victim has little opportunity to escape it short of moving or staying away from the home--neither of which should be required. As one court noted in a sexual harassment case under the Act, the home is ``a place where [one is] entitled to feel safe and secure and need not flee.'' \26\ Thus, the nature and frequency of harassing conduct needed to establish employment discrimination under Title VII does not necessarily transfer to cases under the Fair Housing Act. Instead, the sanctity of the home must be considered in making the totality of the circumstances assessment. Thus, while Title VII and the Fair Housing Act regulations proposed by this rule use similar terms, such as ``totality of the circumstances'' and ``sufficiently severe or pervasive,'' the same or similar conduct may result in a violation of the Fair Housing Act even though it may not violate Title VII. --------------------------------------------------------------------------- \26\ Quigley v. Winter, 598 F. 3d 938, 947 (8th Cir. 2010) (sexual harassment violation of Act). --------------------------------------------------------------------------- Proposed Sec. 100.600(a)(2)(i)(B) provides that the absence of psychological or physical harm is not dispositive in determining whether hostile environment harassment has occurred. Evidence of such harm is but one of many factors to be considered in the totality of circumstances. However, the severity of psychological or physical harm may be considered in determining the proper amount of any damages to which an aggrieved person may be entitled.\27\ --------------------------------------------------------------------------- \27\ See, e.g., Harris, 510 U.S. at 23 (noting that effect on victim's psychological well-being is relevant to determining whether she ``found the environment abusive'' but absence of psychological harm is not dispositive in determining whether harassment occurred). --------------------------------------------------------------------------- 3. Type of Conduct Prohibited quid pro quo harassment and hostile environment harassment require unwelcome conduct, and proposed Sec. 100.600(b) explains that the unwelcome conduct can be written, verbal, or other conduct and does not require physical contact. The unwelcome conduct may come in many forms, such as using threatening imagery (e.g., cross burning or swastika); damaging property; physical assault; [[Page 63725]] threatening physical harm to an individual, family member, assistance animal or pet; or impeding the physical access of a person with a mobility impairment. The unwelcome conduct could be spoken or written, such as requests for sexual favors. It may include gestures, signs, and images directed at the aggrieved persons. It may include the use of racial, religious or ethnic epithets, derogatory statements or expressions of a sexual nature, taunting or teasing related to a person's disability, or threatening statements. In addition, the unwelcome conduct may be communicated to the targeted individual in direct and indirect ways. For example, the unwelcome conduct may involve the use of email, text messages, or social media. As is the case with other prohibited conduct under the Act, an individual violates the Act so long as the quid pro quo or hostile environment harassment is because of a protected characteristic, even if he or she shares the same protected characteristic as the targeted person. For example, in sexual harassment claims, an individual violates the Act by harassing a person of the same sex or by harassing both men and women, so long as the unwelcome conduct is because of sex. Similarly, a person violates the Act by harassing a person of the same race or color if the unwelcome conduct is because of race or color. With respect to sexual harassment, harassing conduct need not be motivated by sexual desire in order to support a finding of illegal discrimination. Sexually harassing conduct must occur ``because of sex,'' which can be shown by, for example, conduct motivated by hostility toward persons of one sex; conduct that occurs because a person acts in a manner that conflicts with gender-based stereotypes of how persons of a particular sex should act; or conduct motivated by sexual desire or control. 4. Number of Incidents Proposed Sec. 100.600(c) provides that a single incident because of race, color, religion, sex, familial status, national origin or disability can constitute an illegal quid pro quo, or, if sufficiently severe, a hostile environment in violation of the Act.\28\ --------------------------------------------------------------------------- \28\ See, e,g., Quigley v. Winter, 598 F. 3d 938 (8th Cir. 2010) (holding that a single instance of quid pro quo violated the Act where landlord implied that the return of a rent deposit depended on seeing plaintiff's nude body or receiving a sexual favor); Doe v. Ore Duckworth, 2013 U.S. Dist. LEXIS 113287, *12 (E.D. La. Aug. 12, 2013) (holding that touching of an intimate area of a plaintiff's body is conduct that can be sufficiently severe to create a hostile housing environment in violation of the Act, ``even if it is an isolated incident''); Beliveau v. Caras, 873 F. Supp. 1393, 1398 (C.D. Cal. 1995) (stating that a single incident of sexual touching that would constitute sexual battery under state law, ``would support a [hostile environment] sexual harassment claim under the federal Fair Housing Act.''); see also cases cited at note 11, supra, and accompanying text (explaining that harassment that occurs in or around one's home is especially intrusive, violative, and threatening); cf. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (U.S. 1998) (noting that ``isolated incidents [of harassment] (unless extremely serious) will not amount to discriminatory changes in the `terms and conditions of employment' '' constituting a hostile environment) (citations omitted; --------------------------------------------------------------------------- B. Illustrations--Subparts B, C, and F The proposed rule would add illustrations of quid pro quo and hostile environment harassment to existing Sec. Sec. 100.60, 100.65, 100.80, 100.90, 100.120, 100.130, and 100.135. In Sec. 100.60, entitled ``Unlawful refusal to sell or rent or to negotiate for the sale or rental,'' the proposed rule would add the following paragraphs as illustrations of prohibited quid pro quo and hostile environment harassment under the Fair Housing Act: Conditioning the availability of a dwelling, including the price, qualification criteria, or standards or procedures for securing a dwelling, on a person's response to harassment because of race, color, religion, sex, familial status, national origin, or disability; subjecting a person to harassment because of race, color, religion, sex, familial status, national origin, or disability that causes the person to vacate a dwelling or abandon efforts to secure the dwelling. Conditioning the ``availability'' of a dwelling means the initial or continued availability of a dwelling, or both. In Sec. 100.65, entitled ``Discrimination in terms, conditions, and privileges and in services and facilities,'' the proposed rule would add the following paragraph as an illustration of prohibited quid pro quo and hostile environment harassment under the Fair Housing Act: Conditioning the terms, conditions, or privileges relating to the sale or rental of a dwelling or denying or limiting the services or facilities in connection with a dwelling on a person's response to harassment because of race, color, religion, sex, familial status, national origin, or disability; subjecting a person to harassment because of race, color, religion, sex, disability, familial status, or national origin that has the effect of imposing different terms, conditions, or privileges relating to the sale or rental of a dwelling or denying or limiting service or facilities in connection with the sale or rental of a dwelling. In Sec. 100.80, entitled ``Discriminatory representation on the availability of dwellings,'' the proposed rule would add the following paragraph as an illustration of a prohibited quid pro quo harassment under the Fair Housing Act: Representing to an applicant that a unit is unavailable because of the applicant's response to a request for a sexual favor or other harassment because of race, color, religion, sex, familial status, national origin, or disability. In Sec. 100.90, entitled ``Discrimination in the provision of brokerage services,'' the proposed rule would add the following paragraphs as illustrations of prohibited quid pro quo and hostile environment under the Fair Housing Act: Conditioning access to brokerage services on a person's response to harassment because of race, color, religion, sex, familial status, national origin, or disability; subjecting a person to harassment because of race, color, religion, sex, familial status, national origin, or disability that has the effect of discouraging or denying access to brokerage services. In Sec. 100.120, entitled ``Discrimination in the making of loans and in the provision of other financial services,'' the proposed rule would add the following paragraphs as illustrations of prohibited quid pro quo and hostile environment harassment under the Fair Housing Act: Conditioning the availability of a loan or other financial assistance that is or will be secured by a dwelling on a person's response to harassment because of race, color, religion, sex, familial status, national origin, or disability; subjecting a person to harassment because of race, color, religion, sex, familial status, national origin, or disability that affects the availability of a loan or other financial assistance that is or will be secured by a dwelling. In Sec. 100.130, entitled ``Discrimination in the terms and conditions for making available loans or other financial assistance,'' the proposed rule would add the following paragraphs as illustrations of prohibited quid pro quo and hostile environment harassment under the Fair Housing Act: Conditioning the aspect of a loan or other financial assistance to be provided with respect to a dwelling, or the terms or conditions thereof, on a person's response to harassment because of race, color, religion, sex, familial status, national origin, or disability; subjecting a person to harassment because race, color, religion, sex, familial status, national origin, or disability that has the effect of imposing different terms or conditions for the availability of such loans or other financial assistance. In Sec. 100.135, entitled ``Unlawful practices in the selling, brokering, or appraising of residential real property,'' [[Page 63726]] the proposed rule would add the following paragraph regarding prohibited quid pro quo harassment under the Fair Housing Act: Conditioning the terms of an appraisal of residential real property in connection with the sale, rental, or financing of a dwelling on a person's response to harassment because of race, color, religion, sex, familial status, national origin, or disability. The proposed rule would not add an additional example of quid pro quo or hostile environment harassment to Sec. 100.400, entitled ``Prohibited Interference, Coercion or Intimidation,'' because existing Sec. 100.400(c)(2) already encompasses both in identifying as an example of conduct made unlawful by section 818: ``Threatening, intimidating or interfering with persons in their enjoyment of a dwelling because of the race, color, religion, sex, handicap, familial status, or national origin of such persons, or of visitors or associates of such persons.'' C. Establishing Liability for Discriminatory Housing Practices This proposed rule would add new Sec. 100.7 to subpart A (General), entitled ``Liability for Discriminatory Housing Practices.'' This proposed rule is intended to clarify standards for liability under this part, based on traditional principles of tort liability, and not to impose any new legal obligations or create or define new agency relationships or duties of care.\29\ --------------------------------------------------------------------------- \29\ See Meyer v. Holley, 537 U.S. at 282, 287 (applying ``traditional agency principles'' and ``ordinary background principles'' of tort liability to Fair Housing Act claim); see also, e.g., Restatement (Third) of Agency section 7.05 (``A principal . . . is subject to liability for harm to a third party caused by [an] agent's conduct if the harm was caused by the principal's negligence in selecting, training, supervising, or otherwise controlling the agent.''). --------------------------------------------------------------------------- 1. Direct Liability Proposed paragraph (a) of Sec. 100.7 identifies direct liability under the Act. New Sec. 100.7(a)(1)(i) proposes that a person is liable for his or her own discriminatory housing practices. New Sec. Sec. 100.7(a)(1)(ii) and (a)(1)(iii) describe direct liability grounded in negligence. New Sec. 100.7(a)(1)(ii) proposes that a person is directly liable for failing to take prompt action to correct and end a discriminatory housing practice by that person's employee or agent where the person knew or should have known of the discriminatory conduct. New Sec. 100.7(a)(1)(iii) proposes that a person is directly liable for failing to fulfill a duty to take prompt action to correct and end a discriminatory housing practice by a third-party (i.e., a non-agent) when the person knew or should have known of the discriminatory conduct. New Sec. 100.7(a)(1)(iii) also proposes that a housing provider's duty to take prompt action to correct and end a discriminatory housing practice by a third-party can derive from an obligation to the aggrieved person created by contract or lease (including bylaws or other rules of a homeowners association, condominium or cooperative), or by federal, state or local law.\30\ --------------------------------------------------------------------------- \30\ See, e.g., Reeves v. Carrollsburg Condo. Unit Owners Ass'n., 1997 U.S. Dist. LEXIS 21762, *26 (D.D.C. 1997) (denying association's motion for summary judgment because association knew or should have known of resident's harassment of plaintiff and had a duty to enforce its bylaws, including sanctions and litigation, yet failed to do so); see also infra note 32 and accompanying text). --------------------------------------------------------------------------- With respect to a person's direct liability for the actions of an agent, Sec. 100.7(a)(1)(ii) recognizes that a principal who knows or should have known that his or her agent has engaged in or is engaging in unlawful conduct and allows it to continue is complicit in or has ratified the discrimination.\31\ With respect to direct liability for the conduct of a non-agent, Sec. 100.7(a)(1)(iii) codifies the traditional principle of liability, and HUD's longstanding position, that a person is directly liable under the Act for harassment perpetrated by non-agents if the person knew or should have known of the harassment, had a duty to take prompt action to correct and end the harassment, and failed to do so or took action that he or she knew or should have known would be unsuccessful in ending the harassment.\32\ This liability arises when, for example, a person, including a management company, homeowner's association, condominium association, or cooperative, knew or should have known that a resident was harassing another resident, and yet did not take prompt action to correct and end it, while having a duty to do so. As recognized by Sec. 100.7(a)(1)(iii), this duty may be created, for example, by a lease or other contract under which a housing provider is legally obligated to exercise reasonable care to protect residents' safety and curtail unlawful conduct in areas under the housing provider's control, or by federal, state or local laws requiring the same. --------------------------------------------------------------------------- \31\ See, e.g., United States v. Balistrieri, 981 F. 2d 916, 930 (7th Cir. 1992) (owner liable for agent's racially discriminatory rental practices of which he knew and failed to stop); Heights Community Congress v. Hilltop Realty, Inc., 774 F. 2d 135, 141, (6th Cir. 1985) (realty firm that knew of fair housing violations by its agents and failed to take corrective action were liable); Richards v. Bono, 2005 U.S. Dist. LEXIS 43585, *32 (M.D. Fla. 2005) (wife/co- owner who knew of husband's sexual harassment yet failed to stop it liable for that violation); United States v. Veal, 365 F. Supp 2d 1034, 1041 (W.D. Mo. 2004) (same). \32\ See, e.g., Neudecker v. Boisclair Corp., 351 F. 3d 361, 364 (8th Cir. 2003) (owner may be liable for acts of tenants and management's children after failing to respond to plaintiff's complaints of harassment); Fahnbulleh v. GFZ Realty, LLC, 795 F. Supp. 2d 360, 364-65 (D. Md. 2011) (denying landlord's motion to dismiss because the Act imposes no categorical rule against landlord liability for tenant-on-tenant harassment); Wilstein v. San Tropai Condo. Master Ass'n, 1999 U.S. Dist. LEXIS 7031, *28-33 (N.D. Ill. Apr. 21, 1999) (rejecting condo association's argument that it had no duty to stop harassment of plaintiff by other residents and holding that association could be liable where evidence indicated that association knew of the harassment and bylaws authorized the association to regulate such conduct); Reeves v. Carrollsburg Condo. Unit Owners Ass'n, 1997 U.S. Dist. LEXIS 21762, * 26 (D.D.C. 1997) (condo association that knew of harassment by resident but failed to take corrective actions may violate Act); see also. Bradley v. Carydale Enterprises, 707 F. Supp. 217 (E.D. Va. 1989) (finding that owners and managers' failure to address one tenant's racial harassment of a neighboring tenant states a claim under 42 U.S.C. 1981, 1982); Freeman v. Dal-Tile Corp., 750 F. 3d 413, 422-23 (4th Cir. 2014) (holding that ``an employer is liable under Title VII for third parties creating a hostile work environment if the employer knew or should have known of the harassment and failed to take prompt remedial action reasonably calculated to end [it].'') (4th Cir. 2014) (internal quotation marks and citations omitted); Galdamez v. Potter, 415 F. 3d 1015, 1022 (9th Cir. 2005) (``An employer may be held liable for the actionable third-party harassment of its employees where it ratifies or condones the conduct by failing to investigate and remedy it after learning of it.''). --------------------------------------------------------------------------- A principal ``should have known'' about the illegal discrimination of the principal's agent when the principal is found to have had knowledge from which a reasonable person would conclude that the agent was discriminating.\33\ For example, if a housing provider's male maintenance worker enters female tenants' units without notice using a passkey, and enters their bedrooms or bathrooms while they are changing or showering and exposes himself, and the tenants complain about this conduct to the manager, the manager has reason to know that unlawful discrimination may be occurring. If the manager conveys this information to the owner, and neither the owner nor the manager takes any corrective action, they are both liable for violating the Act. In that case, [[Page 63727]] the principal is liable as if the principal had committed the illegal act.\34\ --------------------------------------------------------------------------- \33\ The ``knew or should have known'' concept of liability is well-established in civil rights and tort law. As the Supreme Court has recognized, fair housing actions are essentially tort actions. See Meyer v. Holley, 537 U.S. 280, 285 (2003) (citing Curtis v. Loether, 415 U.S. 189, 195-96 (1974)); see also Fahnbulleh v. GZF Realty, LLC, 795 F. Supp. 2d 360, 363 (D. Md. 2011) (quoting Williams v. Poretsky Mgmt., 955 F. Supp. 490, 496 (D. Md. 1996)) (``[c]onduct is imputable to a landlord, if the landlord knew or should have known of the harassment and took no effectual action to correct the situation.''). \34\ See, e.g., Fahnbulleh, 795 F. Supp. 2d at 360, 363; Williams v. Poretsky Mgmt., 955 F. Supp. 490, 496 (D. Md. 1996). --------------------------------------------------------------------------- Similarly, an apartment owner ``should have known'' of tenant harassment by another tenant when the owner had knowledge from which a reasonable person would conclude that the harassment was occurring. It is important to note, however, that not every quarrel among neighbors amounts to a violation of the Fair Housing Act.\35\ --------------------------------------------------------------------------- \35\ See, e.g., Bloch v. Frischholz, 587 F. 3d 771, 783 (7th Cir. 2009) (quoting Halprin v. Prairie Single Family Homes of Dearborn Park Ass'n, 388 F. 3d 327, 330 (7th Cir. 2004) (noting that interference under Sec. 818 ``is more than a `quarrel among neighbors' ''); Sporn v. Ocean Colony Condominium Assn, 173 F. Supp. 2d 244, 251-52 (D.N.J. 2001) (noting that section 818 ``does not [ ] impose a code of civility'' on neighbors); United States v. Weisz, 914 F. Supp. 1050, 1054-55 (S.D.N.Y. 1996) (holding that allegations that Jewish neighbor harassed complainants because of their religion were ``nothing more than a series of skirmishes in an unfortunate war between neighbors''). But see Ohana v. 180 Prospect Place, 996 F. Supp. 238, 243 (E.D.N.Y. 1998) (neighbors who intentionally intrude upon quietude of another's home may violate Act). --------------------------------------------------------------------------- Proposed Sec. 100.7(a)(2) provides that corrective actions must be effective in ending the discrimination, but may not injure the aggrieved persons.\36\ For example, corrective actions appropriate for a housing provider to utilize to stop tenant-on-tenant harassment might include verbal and written warnings; enforcing lease provisions to move, evict, or otherwise sanction tenants who harass or permit guests to harass; issuing no-trespass orders or reporting conduct to the police; and establishing an anti-harassment policy and complaint procedures, depending on the nature, frequency, and severity of the harassment, and the size and authority of the provider. When the perpetrator is an employee of the housing provider, corrective actions might include training, warnings, or reprimands; termination or other sanctions; and reports to the police. The housing provider should follow up with the victim of the harassment after the corrective action is taken to ensure that it was effective. If the housing provider knows or should have known that the corrective action was ineffective, the provider has a duty to take additional corrective actions. --------------------------------------------------------------------------- \36\ See, e.g., Miller v. Towne Oaks East Apartments, 797 F. Supp. 557, 562 (E.D. Tex.1992) (finding landlord liable for violating Act by evicting both harasser and victim of harassment instead of only harasser). --------------------------------------------------------------------------- 2. Vicarious Liability Proposed paragraph (b) of Sec. 100.7 provides that a person is vicariously liable for the discriminatory housing practices of his or her agents or employees, as specified by agency law. This provision is consistent with the holding of Meyer v. Holley, 537 U.S. 280, 285-289 (2003) that traditional principles of agency law apply in fair housing cases. Under well-established principles of agency law, a principal is vicariously liable for the actions of his or her agents taken within the scope of their relationship or employment, as well as for actions committed outside the scope of the relationship or employment when the agent is aided in the commission of such acts by the existence of the agency relationship.\37\ Unlike direct liability, someone may be vicariously liable for the acts of an agent regardless of whether the person knew of or intended the wrongful conduct or was negligent in preventing it from occurring. In determining whether a principal is vicariously liable, an agent's responsibilities, duties, and functions must be carefully examined to determine whether an agency relationship exists, and also whether the conduct was within the scope of the agency relationship or aided by the existence of the agency relationship.\38\ --------------------------------------------------------------------------- \37\ See Meyer, 537 U.S. at 285 (``[T]raditional vicarious liability rules . . . make principals or employers vicariously liable for acts of their agents or employees in the scope of their authority or employment.''); Glover v. Jones, 522 F. Supp. 2d 496, 507 (W.D.N.Y. 2007) (holding that ``a property owner may be vicariously liable under the Fair Housing Act for the actions of an employee even when they are outside the scope of employment . . . if the employee was aided in accomplishing the tort by the existence of the agency relation.'') (quoting Mack v. Otis Elevator Co., 326 F. 3d 116, 123 (2d Cir. 2003) (internal quotation marks omitted); see also Boswell v. GumBayTay, No. 2:07-CV-135-WKW[WO], 2009 U.S. Dist. LEXIS 45954, *17 (M.D. Ala. June 1, 2009) (holding that vicarious liability attached to property owner where property manager's ``position essentially gave him unfettered access to communicate with and personally visit [the plaintiff]'' and he ``used his power as property manager as a vehicle through which to perpetrate his unlawful conduct by refusing repairs, raising the rent, and attempting to evict [the plaintiff] as a consequence for [her] refusal to provide sexual favors.''); Glover at 522 F. Supp. 2d at 507 (rejecting defendant property owner's motion for summary judgment on the issue of vicarious liability where evidence showed that property manager used his ``position as the de facto landlord to perpetrate FHA [harassment] violations . . . giving] him the opportunity to visit the apartment when he wanted, and enabl[ing] him to control Plaintiff's rent''); Richards v. Bono, 2005 U.S. Dist. LEXIS 43585, *30 (M.D. Fla. 2005) (holding that wife/co-owner of property could be vicariously liable for husband's harassment where husband acted as her agent and used his position as owner, property manager, and maintenance supervisor to subject the plaintiff to sexual harassment by using a key to enter plaintiff's apartment and threatening plaintiff with eviction). \38\ See, e.g, United States v. Hylton, 590 Fed. Appx. 13, 17 (2d Cir. 2014); Cleveland v. Caplaw Enters., 448 F. 3d 518, 522 (2d Cir. 2006); Alexander v. Riga, 208 F. 3d 419, 430-33 (3d Cir. 2000); Jankowski Lee & Assocs. v. Cisneros, 91 F. 3d 891, 896-97 (7th Cir. 1996); Cabrera v. Jakabovitz, 24 F. 3d 372, 388 (2d Cir. 1994); City of Chicago v. Matchmaker Real Estate Sales Center, 982 F. 2d 1086, 1096-98 (7th Cir. 1992); United States v. Balistrieri, 981 F. 2d 916, 930 (7th Cir. 1992); Walker v. Crigler, 976 F. 2d 900, 903-05 (4th Cir. 1992); Hamilton v. Svatik, 779 F. 2d 383, 388 (7th Cir. 1985); Marr v. Rife, 503F. 2d 735, 741 (6th Cir. 1974); United States v. Prach, 2005 WL 1950018 *4 (E.D. Wa. 2005); Richards v. Bono, 2005 WL 1065141 *7 (M.D. Fla. 2005); United States v. Veal, 365 F. Supp. 2d 1034, 1041 (W.D. Mo. 2004); United States v. Habersham Props., 319 F. Supp. 2d 1366,1375 (N.D. Ga. 2003); United States v. Garden Homes Mgmt., 156 F. Supp. 2d 413, 424-25 (D.N.J. 2001); Beliveau v. Caras, 873 F. Supp. 1393, 1400-01 (C.D. Cal. 1995). --------------------------------------------------------------------------- As provided in new Sec. 100.600(a)(2)(ii), the proposed rule would not extend to the Fair Housing Act the judicially-created Title VII affirmative defense to an employer's vicarious liability for hostile environment harassment committed by a supervisory employee. The Title VII affirmative defense permits an employer to avoid vicarious liability for such harassment by showing that (1) the employer exercised reasonable care to prevent and correct promptly the supervisor's harassing behavior, including implementing a policy to prevent and correct instances of sexual harassment and procedures for training and complaint filing; and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to otherwise avoid harm.\39\ The Title VII affirmative defense applies only where the supervisor's hostile environment harassment did not involve a tangible employment action, e.g., hiring, firing, demotion, undesirable reassignment, or other actions resulting in a significant change in employment status. --------------------------------------------------------------------------- \39\ See EEOC Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, http://www.eeoc.gov/policy/docs/harassment.html. See also Vance v. Ball State, 133 S. Ct. 2434, 2439 (2013); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 806-08 (1998). --------------------------------------------------------------------------- Noting that common-law principles of agency liability ``may not be transferable in all their particulars to Title VII,'' \40\ the Supreme Court fashioned this defense to employer liability in order to ``adapt agency concepts to the practical objectives of Title VII.'' \41\ Specifically, the Court adopted the defense ``[i]n order to accommodate the agency principles of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII's equally basic policies of encouraging forethought by employers and saving action by objecting employees.'' \42\ The [[Page 63728]] Court reasoned that limiting employer liability would ``effect Congress' intention to promote conciliation rather than litigation in the Title VII context and the EEOC's policy of encouraging the development of grievance procedures [by employers].'' \43\ --------------------------------------------------------------------------- \40\ Ellerth, 524 U.S. at 755 (internal quotations omitted) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 72 (1986)). \41\ Faragher, 524 U.S. at 802.n3. \42\ Ellerth, 524 U.S. at 764. \43\ Id. (internal citations omitted). --------------------------------------------------------------------------- The Title VII affirmative defense is not appropriately applied to harassment in the housing context because the Fair Housing Act simply follows traditional principles of vicarious liability.\44\ But even if the Fair Housing Act did authorize policy-driven adaptations of agency principles in some circumstances, the significant difference between the enforcement policies of Title VII and the Fair Housing Act make the affirmative defense to employer liability neither relevant nor appropriate to apply to liability under the Fair Housing Act. Most notably, employees are required to exhaust their administrative remedies before proceeding to court under Title VII,\45\ whereas the Fair Housing Act has no exhaustion requirement. Nothing in the Act requires victims of housing discrimination, before filing a civil action, to file an administrative complaint with HUD or to await HUD's authorization to initiate a lawsuit. Rather, the Fair Housing Act ``provide[s] all victims of [housing discrimination] two alternative mechanisms by which to seek redress: Immediate suit in federal district [or state] court, or a simple, inexpensive, informal conciliation procedure, to be followed by litigation should conciliation efforts fail.'' \46\ Even where a fair housing complainant chooses to file an administrative complaint with HUD, the complainant need not wait for HUD to act but rather may simultaneously initiate a lawsuit in federal or state court.\47\ --------------------------------------------------------------------------- \44\ See Meyer, 537 U.S. at 285. \45\ See 42 U.S.C. 2000e-5(f)(1). \46\ Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 104 (1979) (emphasis added); see also 42 U.S.C. 3610, 3613. \47\ See 42 U.S.C. 3613(a)(2)-(3). --------------------------------------------------------------------------- Nor do the specific, practical concerns that led the Court to adopt the affirmative defense to vicarious liability for certain employment relationships arise in the housing context. In adopting the affirmative defense under Title VII, the Supreme Court distinguished between workplace harassment perpetrated by supervisors, which is often facilitated by the supervisor's agency relationship with the employer, and harassment perpetrated by co-workers, which is not similarly facilitated.\48\ While the Court recognized that a supervisor's harassing conduct ``in [a] sense . . . is always aided by the agency relation'' because of his or her power and authority in the workplace,\49\ the Court also noted that it is ``less obvious'' that a supervisor is aided by the agency relationship where the supervisor creates a hostile environment that does not involve a tangible employment action.\50\ The Court was concerned that to hold employers vicariously liable for hostile environment harassment by a supervisor that did not involve a tangible employment action \51\ would undermine the traditional distinction between employer liability for harassment by a supervisor, for which employers typically are held vicariously liable, and employer liability for co-worker harassment, for which employers are typically liable under a negligence theory.\52\ To avoid this result, the Court drew a hard line separating two categories of supervisor harassment: (1) Those involving a tangible employment action, where the supervisory function is clear and manifest, and thus the tort plainly aided by the agency relationship; and (2) those not involving a tangible employment action, where the supervisors' harassment is less distinguishable from harassment by non-supervisory co-workers.\53\ The Court held that where hostile environment harassment by a supervisor does not result in a tangible employment action, employers can raise the negligence-based affirmative defense to vicarious liability described above. --------------------------------------------------------------------------- \48\ See Ellerth, 524 U.S. at 763-65; Faragher, 524 U.S. at 801- 03. \49\ Ellerth, 524 U.S. at 763. \50\ Id. (observing that ``there are acts of harassment a supervisor might commit . . . where the supervisor's status makes little difference.''); see also id. at 761 (defining a ``tangible employment action'' as ``a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits''). \51\ With respect to harassment involving a tangible employment action, the Court held that ``When a supervisor makes a tangible employment decision, there is assurance the injury could not have been inflicted absent the agency relation. Id. at 761-62. Thus, the Court concluded, ``a tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer.'' Id. at 762. \52\ See id. at 760 (expressing concern that ``an employer would be subject to vicarious liability not only for all supervisor harassment, but also for all co-worker harassment.''); see also id. (citing the ``knows or should have known'' negligence standard of liability for cases of harassment between ``fellow employees'' established by 29 CFR 1604.11(d)). \53\ See Ellerth, 524 U.S. at 762-63. --------------------------------------------------------------------------- But the concerns that led the Supreme Court to distinguish workplace harassment by a supervisor from that by a fellow employee do not extend to the housing context where supervisory status of a housing provider's agent plays a far less significant role in facilitating harassment.\54\ While workplace harassment may be perpetrated by an agent who has no authority over the terms or conditions of the victim's employment (e.g., by a co-worker) such that the harassment is not aided by the perpetrator's agency relationship with the employer, harassment of a homeseeker or tenant by an agent of a housing provider does involve an agent who has authority over terms or conditions of the homeseeker's or tenant's housing or housing-related services.\55\ Whether the perpetrator is a property manager, a mortgage loan officer, a realtor, or a management company's maintenance person, a housing provider's agent holds an unmistakable position of power and control over the victimized homeseeker or resident. For example, a property manager can recommend (or sometimes even initiate) the eviction of a harassment victim or refuse to renew a victim's lease, while a maintenance person may withhold repairs to a victim's apartment or may access the victim's apartment without proper notice or justification. Likewise, a realtor can refuse to show a home to or present a purchase offer from a harassment victim, while a loan officer might reject a victim's mortgage application or alter the loan terms being offered. Thus, unlike in the employment arena, an agent who harasses residents or homeseekers is aided by his agency relationship with the housing provider, whether or not a tangible housing action results.\56\ For this reason, the Title VII affirmative defense is not relevant to the effective resolution of fair housing disputes. Significantly, we are unaware of any court having extended the Title VII affirmative defense to fair housing claims. --------------------------------------------------------------------------- \54\ Cf. Arguello v. Conoco, Inc., 207 F. 3d 803, 810 (5th Cir. 2000) (holding that the Title VII affirmative defense does not apply to harassment claims under 42 U.S.C. 1981 and Title II of the Civil Rights Act of 1964, 42 U.S.C. 2000a). \55\ Cf. id. at 810 (noting that racially derogatory remarks and other discrimination directed at plaintiff-customers by non- supervisory employee ``was just as harmful as if the discriminatory acts had been committed by one of [defendant-employer's] supervisory employees''). \56\ See, e.g, Salisbury v. Hickman, 974 F. Supp. 2d 1282, 1293 (E.D. Cal. 2013) (noting that ``Mr. Crimi's ability [as the on-site property manager] to influence Ms. Salisbury's well-being . . . adds yet another degree of severity to Mr. Crimi's [harassing] conduct. This reality exists even if Mr. Crimi did not engage in any quid pro quo sexual harassment.''). --------------------------------------------------------------------------- Instead, the affirmative defense would add additional burdens that are incompatible with the broad protections and streamlined enforcement mechanisms afforded by the Fair [[Page 63729]] Housing Act. Requiring victims of hostile environment harassment to complain to their housing provider or risk forfeiting their ability to obtain relief under the Fair Housing Act would unduly burden the large proportion of tenants who have little to no contact with their housing providers except through an onsite building manager or maintenance person who may be the very agent responsible for the harassment. Moreover, in HUD's experience, particularly in addressing instances of sexual harassment, tenants who are victims of sexual harassment by the landlord's agent are especially vulnerable. A housing provider's liability for such conduct should not be made contingent upon a tenant's ability to avail herself of a complaint process--even an adequate complaint procedure--established by the housing provider. While the risk of retaliation attendant to reporting harassment is serious in the employment context, such risk is even graver in the residential context. Victims of harassment by a landlord's agent not only risk eviction, a particularly severe consequence for low-income tenants whose affordable housing options are limited, they may also suffer physical harm to themselves or their family members in retaliation for filing a grievance. In the most egregious circumstances, an agent may abuse the power conferred by his agency relationship to gain access to a victim's home and inflict violence upon the victim after the victim has reported harassment. In HUD's view, a victim of hostile environment harassment should not be forced to choose between the risk of retaliation and the risk of losing his or her right to hold a housing provider liable for the acts of its agents. While Title VII and the Fair Housing Act share a common goal of eliminating discrimination in their respective spheres, the mechanisms for doing so are fundamentally different. In addition, as discussed above, one's workplace and one's home are very different places, with the latter having substantial expectations of privacy, security and safety. Individuals have a justified expectation of freedom from unwelcome conduct in the home.\57\ The home is ``a place where [one is] entitled to feel safe and secure and need not flee.'' \58\ To adopt Title VII's affirmative defense under the Fair Housing Act would be to ignore these important rights and the distinction between the home and public places, and the differences in the enforcement regimes of the two statutes. --------------------------------------------------------------------------- \57\ Frisby, at 484. \58\ Quigley v. Winter, 598 F. 3d 938, 947 (8th Cir. 2010) (sexual harassment violation of Act). --------------------------------------------------------------------------- IV. Findings and Certifications Regulatory Review--Executive Orders 12866 and 13563 Under Executive Order 12866 (Regulatory Planning and Review), a determination must be made whether a regulatory action is significant and therefore, subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the order. Executive Order 13563 (Improving Regulations and Regulatory Review) directs executive agencies to analyze regulations that are ``outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned. Executive Order 13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. This rule was determined to be a ``significant regulatory action'' as defined in section 3(f) of Executive Order (although not an economically significant regulatory action, as provided under section 3(f)(1) of the Executive Order). This rule establishes uniform standards for use in investigations and processing cases involving harassment and liability under the Fair Housing Act. As has been discussed in the preamble to this rule, in establishing such standards, HUD is exercising its rulemaking authority to bring uniformity, clarity, and certainty to an area of legal practice. The docket file for this rule is available for public inspection between the hours of 8 a.m. and 5 p.m. weekdays in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, Room 10276, 451 7th Street SW., Washington, DC 20410-0500. Due to security measures at the HUD Headquarters building, please schedule an appointment to review the docket file by calling the Regulations Division at 202-708-3055 (this is not a toll-free number). Persons with hearing or speech impairments may access the above telephone number via TTY by calling the toll-free Federal Relay Service at 800-877-8339. Environmental Impact This rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern or regulate, real property acquisition, disposition, leasing, rehabilitation, alteration, demolition or new construction, or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. This rule is limited to the procedures governing fair housing enforcement. Accordingly, under 24 CFR 50.19(c)(3), this rule is categorically excluded from environmental review under the National Environmental Policy Act (42 U.S.C. 4321). Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 4321, et seq.) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The proposed rule establishes standards for evaluating claims of harassment and liability under the Fair Housing Act. The scope of the rule is procedural, and the regulatory changes do not establish any substantive regulatory burdens on small entities. Accordingly, the undersigned certifies that this rule will not have a significant economic impact on a substantial number of small entities. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. This proposed rule does not impose any federal mandates on any state, local, or tribal governments or the private sector within the meaning of UMRA. Executive Order 13132, Federalism Executive Order 13132 (entitled ``Federalism'') prohibits an agency from publishing any rule that has federalism implications if the rule either (1) imposes substantial, direct compliance costs on state and local governments, and is not required by statute, or (2) preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This rule would not have federalism implications and would not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order. [[Page 63730]] Catalogue of Federal Domestic Assistance The Catalogue of Federal Domestic Assistance Number for the equal opportunity in housing program is 14.400. List of Subjects in 24 CFR Part 100 Aged, Fair housing, Individuals with disabilities, Mortgages, Reporting and recordkeeping requirements. Accordingly, for the reasons stated in the preamble, HUD proposes to amend 24 CFR part 100 to read as follows: PART 100--DISCRIMINATORY CONDUCT UNDER THE FAIR HOUSING ACT 0 1. The authority citation for 24 CFR part 100 continues to read as follows: Authority: 42 U.S.C. 3535(d), 3600-3620. 0 2. Add Sec. 100.7 to read as follows: Sec. 100.7 Liability for discriminatory housing practices. (a) Direct liability. (1) A person is directly liable for: (i) The person's own conduct that results in a discriminatory housing practice. (ii) Failing to take prompt action to correct and end a discriminatory housing practice by that person's employee or agent, where the person knew or should have known of the discriminatory conduct. (iii) Failing to fulfill a duty to take prompt action to correct and end a discriminatory housing practice by a third-party, where the person knew or should have known of the discriminatory conduct. The duty to take prompt action to correct and end a discriminatory housing practice by a third-party can derive from an obligation to the aggrieved person created by contract or lease (including bylaws or other rules of a homeowners association, condominium or cooperative), or by federal, state or local law. (2) For purposes of determining liability under paragraphs (a)(1)(ii) and (iii) of this section, prompt action to correct and end the discriminatory housing practice may not include any action that penalizes or harms the aggrieved person, such as eviction of the aggrieved person. (b) Vicarious liability. A person is vicariously liable for a discriminatory housing practice by the person's agent or employee, regardless of whether the person knew or should have known of the conduct that resulted in a discriminatory housing practice, consistent with agency law. 0 3. In Sec. 100.60, add paragraphs (b)(6) and (7) to read as follows: Sec. 100.60 Unlawful refusal to sell or rent or to negotiate for the sale or rental. * * * * * (b) * * * (6) Conditioning the availability of a dwelling, including the price, qualification criteria, or standards or procedures for securing the dwelling, on a person's response to harassment because of race, color, religion, sex, handicap, familial status, or national origin. (7) Subjecting a person to harassment because of race, color, religion, sex, handicap, familial status, or national origin that causes the person to vacate a dwelling or abandon efforts to secure the dwelling. 0 4. In Sec. 100.65, add paragraphs (b)(6) and (7) to read as follows: Sec. 100.65 Discrimination in terms, conditions and privileges and in services and facilities. * * * * * (b) * * * (6) Conditioning the terms, conditions, or privileges relating to the sale or rental of a dwelling, or denying or limiting the services or facilities in connection therewith, on a person's response to harassment because of race, color, religion, sex, handicap, familial status, or national origin. (7) Subjecting a person to harassment because of race, color, religion, sex, handicap, familial status, or national origin that has the effect of imposing different terms, conditions, or privileges relating to the sale or rental of a dwelling or denying or limiting service or facilities in connection with the sale or rental of a dwelling. 0 5. In Sec. 100.80, add paragraph (b)(6) to read as follows: Sec. 100.80 Discriminatory representation on the availability of dwellings. * * * * * (b) * * * (6) Representing to an applicant that a unit is unavailable because of the applicant's response to a request for a sexual favor or other harassment because of race, color, religion, sex, handicap, familial status, or national origin. 0 6. In Sec. 100.90, add paragraphs (b)(5) and (6) to read as follows: Sec. 100.90 Discrimination in the provision of brokerage services. * * * * * (b) * * * (5) Conditioning access to brokerage services on a person's response to harassment because of race, color, religion, sex, handicap, familial status, or national origin. (6) Subjecting a person to harassment because of race, color, religion, sex, handicap, familial status, or national origin that has the effect of discouraging or denying access to brokerage services. 0 7. In Sec. 100.120, add paragraphs (b)(3) and (4) to read as follows: Sec. 100.120 Discrimination in the making of loans and in the provision of other financial assistance. * * * * * (b) * * * (3) Conditioning the availability of a loan or other financial assistance on a person's response to harassment because of race, color, religion, sex, handicap, familial status, or national origin. (4) Subjecting a person to harassment because of race, color, religion, sex, handicap, familial status, or national origin that affects the availability of a loan or other financial assistance. 0 8. In Sec. 100.130, add paragraphs (b)(4) and (5) to read as follows: Sec. 100.130 Discrimination in the terms and conditions for making available loans or other financial assistance. * * * * * (b) * * * (4) Conditioning the aspect of a loan or other financial assistance to be provided with respect to a dwelling, or the terms or conditions thereof, on a person's response to harassment because of race, color, religion, sex, handicap, familial status, or national origin. (5) Subjecting a person to harassment because of race, color, religion, sex, handicap, familial status, or national origin that has the effect of imposing different terms or conditions for the availability of such loans or other financial assistance. 0 9. In Sec. 100.135, revise paragraph (d) to read as follows: Sec. 100.135 Unlawful practices in the selling, brokering, or appraising of residential real property. * * * * * (d) Practices which are unlawful under this section include, but are not limited to: (1) Using an appraisal of residential real property in connection with the sale, rental, or financing of any dwelling where the person knows or reasonably should know that the appraisal improperly takes into consideration race, color, religion, sex, handicap, familial status, or national origin. (2) Conditioning the terms of an appraisal of residential real property in connection with the sale, rental, or [[Page 63731]] financing of a dwelling on a person's response to harassment because of race, color, religion, sex, handicap, familial status, or national origin. 0 10. Add subpart H, consisting of Sec. 100.600, to read as follows: Subpart H-- Quid Pro Quo and Hostile Environment Harassment Sec. 100.600 Quid pro quo and hostile environment harassment. (a) General. Quid pro quo and hostile environment harassment because of race, color, religion, sex, familial status, national origin or handicap may violate sections 804, 805, 806 or 818 of the Act, depending on the conduct. The same conduct may violate one or more of these provisions. (1) Quid pro quo harassment. Quid pro quo harassment refers to an unwelcome request or demand to engage in conduct where submission to the request or demand, either explicitly or implicitly, is made a condition related to: The sale, rental or availability of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision of services or facilities in connection therewith; or the availability, terms, or conditions of a residential real estate-related transaction. An unwelcome request or demand may constitute quid pro quo harassment even if a person acquiesces in the unwelcome request or demand. (2) Hostile environment harassment. Hostile environment harassment refers to unwelcome conduct that is sufficiently severe or pervasive as to interfere with: the availability, sale, rental, or use or enjoyment of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision or enjoyment of services or facilities in connection therewith; or the availability, terms, or conditions of a residential real estate-related transaction. Hostile environment harassment does not require a change in the economic benefits, terms, or conditions of the dwelling or housing-related services or facilities, or of the residential real-estate transaction. (i) Totality of the circumstances. Whether hostile environment harassment exists depends upon the totality of the circumstances. (A) Factors to be considered to determine whether hostile environment harassment exists include, but are not limited to, the nature of the conduct, the context in which the incident(s) occurred, the severity, scope, frequency, duration, and location of the conduct, and the relationships of the persons involved. (B) Evidence of psychological or physical harm is relevant in determining whether a hostile environment was created, as well as the amount of damages to which an aggrieved person may be entitled. However, neither psychological nor physical harm must be demonstrated to prove that a hostile environment exists. (ii) Title VII affirmative defense. The affirmative defense to an employer's vicarious liability for hostile environment harassment by a supervisor under Title VII of the Civil Rights Act of 1964 does not apply to cases brought pursuant to the Fair Housing Act. (b) Type of conduct. Harassment can be written, verbal, or other conduct, and does not require physical contact. (c) Number of incidents. A single incident of harassment because of race, color, religion, sex, familial status, national origin, or handicap may constitute a discriminatory housing practice, where the incident is severe, or evidences a quid pro quo. Dated: September 28, 2015. Gustavo Velasquez, Assistant Secretary for Fair Housing and Equal Opportunity. [FR Doc. 2015-26587 Filed 10-20-15; 8:45 am] BILLING CODE 4210-67-P
![63720 Federal Register / Vol. 80, No. 203 / Wednesday, October 21, 2015 / Proposed Rules
DEPARTMENT OF HOUSING AND encourages commenters to submit housing-related transactions because of
URBAN DEVELOPMENT comments electronically. Electronic race, color, religion, sex, national origin,
submission of comments allows the disability 1 and familial status, just as
24 CFR Part 100 commenter maximum time to prepare Title VII of the Civil Rights Act (42
[Docket No. FR–5248–P–01] and submit a comment, ensures timely U.S.C. 2000e et se.) prohibits such
receipt by HUD, and enables HUD to harassment in employment. However, to
RIN 2529–AA94 make them immediately available to the date, no standards have been formalized
public. Comments submitted for assessing claims of harassment
Quid Pro Quo and Hostile Environment electronically through the under the Fair Housing Act. Courts have
Harassment and Liability for www.regulations.gov Web site can be often applied standards first adopted
Discriminatory Housing Practices viewed by other commenters and under Title VII to evaluate claims of
Under the Fair Housing Act interested members of the public. harassment under the Fair Housing Act,
AGENCY: Office of the Assistant Commenters should follow the but such standards are not always the
Secretary for Fair Housing and Equal instructions provided on that site to most suitable for assessing claims of
Opportunity, HUD. submit comments electronically. harassment in housing discrimination
ACTION: Proposed rule. Note: To receive consideration as public
cases given the differences between
comments, comments must be submitted harassment in the workplace and
SUMMARY: Through this rule, HUD through one of the two methods specified harassment in or around one’s home.
proposes to amend its fair housing above. Again, all submissions must refer to Therefore, this rule proposes to
regulations to formalize standards for the docket number and title of the rule. formalize standards determined to be
use in investigations and adjudications appropriate for evaluating claims of
No Facsimile Comments. Facsimile
involving alleged harassment on the quid pro quo and hostile environment
(fax) comments are not acceptable.
basis of race, color, religion, national harassment in the housing context and
Public Inspection of Public
origin, sex, familial status or disability provides some examples of their
Comments. All properly submitted
under the Fair Housing Act. The application.
comments and communications In addition to formalizing standards
proposed standards would specify how submitted to HUD will be available for
HUD would evaluate complaints of quid for assessing claims of harassment
public inspection and copying between under the Fair Housing Act, a regulation
pro quo (‘‘this for that’’) harassment and 8 a.m. and 5 p.m. weekdays at the above
hostile environment harassment and is needed to clarify when housing
address. Due to security measures at the providers and other covered entities or
provide for uniform treatment of Fair HUD Headquarters building, an advance
Housing Act claims raising such individuals may be held directly or
appointment to review the public vicariously liable under the Act for
allegations in the federal courts. This comments must be scheduled by calling
proposed rule defines ‘‘quid pro quo’’ illegal harassment or other
the Regulations Division at 202–708– discriminatory housing practices. HUD
and ‘‘hostile environment harassment,’’ 3055 (this is not a toll-free number).
as prohibited under the Fair Housing proposes to set forth by regulation how
Individuals who are deaf, are hard of these traditional liability standards
Act, and adds illustrations of hearing, or have speech impairments
discriminatory housing practices that apply in the housing context because, in
may access this number through TTY by HUD’s experience, there is significant
constitute such harassment. In addition, calling the Federal Relay Service at 800–
the proposed rule clarifies the operation misunderstanding among public and
877–8339. Copies of all comments private housing providers as to the
of traditional principles of direct and submitted are available for inspection
vicarious liability under the Fair circumstances under which they will be
and downloading at subject to liability under the Fair
Housing Act. www.regulations.gov. Housing Act for discriminatory housing
DATES: Comment Due Date: December
FOR FURTHER INFORMATION CONTACT: practices undertaken by others.
21, 2015. How the Rule Meets the Need. This
Lynn Grosso, Acting Deputy Assistant
ADDRESSES: Interested persons are Secretary for Enforcement and proposed rule meets the need described
invited to submit comments regarding Programs, Office of Fair Housing and above by formalizing and providing
this proposed rule to the Regulations Equal Opportunity, Department of uniform standards for evaluating
Division, Office of General Counsel, 451 Housing and Urban Development, 451 complaints of quid pro quo and hostile
7th Street SW., Room 10276, Seventh Street SW., Room 5204, environment harassment under the Fair
Department of Housing and Urban Washington, DC 20410–2000; telephone Housing Act. The rule does so by
Development, Washington, DC 20410– number 202–402–5361 (this is not a toll- defining ‘‘quid pro quo’’ and ‘‘hostile
0500. Communications must refer to the free number). Persons with hearing or environment harassment’’ as conduct
above docket number and title. There speech impairments may contact this prohibited under the Act, describing the
are two methods for submitting public number via TTY by calling the toll-free types of conduct that may establish a
comments. All submissions must refer Federal Relay Service at 800–877–8339. claim of either type of harassment, and
to the above docket number and title. specifying the factors to be considered
SUPPLEMENTARY INFORMATION:
1. Submission of Comments by Mail. when evaluating whether particular
Comments may be submitted by mail to I. Executive Summary conduct creates a hostile environment
the Regulations Division, Office of in violation of the Act. Such standards
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
General Counsel, Department of A. Purpose of the Regulatory Action would apply both in administrative
Housing and Urban Development, 451 Need for the Regulation. A regulation adjudications under the Act and in Fair
7th Street SW., Room 10276, is needed to formalize the standards for Housing Act cases brought in federal
Washington, DC 20410–0500. investigations and adjudications under and state courts. This proposed rule also
2. Electronic Submission of the Fair Housing Act (Fair Housing Act
Comments. Interested persons may or Act) involving alleged harassment. 1 This rule uses the term ‘‘disability’’ to refer to
submit comments electronically through Both HUD and the courts have long what the Fair Housing Act and its implementing
regulations refer to as a ‘‘handicap.’’ Both terms
the Federal eRulemaking Portal at recognized that the Fair Housing Act have the same legal meaning. See Bragdon v.
www.regulations.gov. HUD strongly prohibits harassment in housing and Abbott, 524 U.S. 624, 631 (1998).
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![Federal Register / Vol. 80, No. 203 / Wednesday, October 21, 2015 / Proposed Rules 63721
meets the need for regulatory action by is subjected to an unwelcome request or preventing the conduct from occurring.2
adding to HUD’s existing Fair Housing demand because of the person’s Vicarious liability occurs when the
Act regulations illustrations of protected characteristic and submission discriminatory actions of the agent are
discriminatory housing practices that to the request or demand is, either taken within the scope of the agency
constitute illegal quid pro quo and explicitly or implicitly, made a relationship, or are committed outside
hostile environment harassment. By condition related to the person’s the scope of the agency relationship but
establishing consistent standards for housing. A person’s conduct may the agent was aided in the commission
evaluating claims of quid pro quo and constitute quid pro quo harassment of such acts by the existence of the
hostile environment harassment, this even where the victim acquiesces or agency relationship. To clarify the
proposed rule would provide guidance submits to the unwelcome request or distinction between these two forms of
to providers of housing or housing- demand. liability—direct and vicarious—without
related services seeking to ensure that As proposed to be defined, ‘‘hostile codifying specific common law liability
their properties or businesses are free of environment harassment’’ occurs when, standards, the proposed rule simply
unlawful harassment. The rule also because of a protected characteristic, a adds a provision stating that a person
strives to provide clarity to victims of person is subjected to unwelcome may be vicariously liable for the
harassment and their representatives as conduct that is sufficiently severe or discriminatory acts of his or her agent.
to how to assess potential claims of pervasive such that it interferes with or This provision is consistent with the
illegal harassment under the Act. deprives the victim of his or her right to holding of Meyer v. Holley, 537 U.S.
Finally, this proposed regulation use and enjoy the housing or to exercise 280, 285–289 (2003) that traditional
describes direct and vicarious liability other rights protected by the Act. The principles of agency law apply in fair
under the Fair Housing Act, thereby proposed rule further explains that housing cases.3
providing both aggrieved persons and whether a hostile environment has been C. Costs and Benefits
housing providers with guidance as to created requires an assessment of the
when a party may be held liable for totality of the circumstances, which Because the rule does not add any
specific discriminatory acts or practices. includes, but is not limited to, the new forms of liability under the Act, but
Legal Authority for the Regulation. nature of the conduct; the context in rather formalizes clear, consistent,
The legal authority for this regulation is which the conduct occurred; the nationwide standards for evaluating
found in the Fair Housing Act. severity, scope, frequency, duration, and harassment cases under the Fair
Specifically, section 808(a) of the Act location of the incident(s); and the Housing Act, the rule adds no
gives the Secretary of HUD the additional costs to housing providers
relationships of the persons involved.
‘‘authority and responsibility for and others engaged in housing
For purposes of clarity and guidance,
administering this Act.’’ 42 U.S.C. transactions. Rather, the rule will assist
the proposed rule would add to HUD’s
3608(a). In addition, section 815 of the in ensuring compliance with the Act by
existing Fair Housing Act regulations
Act provides that ‘‘[t]he Secretary may defining quid pro quo and hostile
examples of prohibited quid pro quo
make rules (including rules for the environment harassment that violates
and hostile environment harassment
collection, maintenance, and analysis of the Act and by specifying traditional
under the Act.
appropriate data) to carry out this title. tort and agency law standards for
The proposed rule also would
The Secretary shall give public notice assessing direct and vicarious liability,
describe ‘‘direct liability’’ and
and opportunity for comment with consistent with Supreme Court
‘‘vicarious liability’’ as applied to all precedent. Articulating clear standards
respect to all rules made under this
violations under the Act, not solely enables entities subject to the Act’s
section.’’ 42 U.S.C. 3614a. HUD also has
harassment. The standards for both prohibitions and persons protected by
general rulemaking authority, under the
types of liability incorporated into the its terms to understand the types of
Department of Housing and Urban
proposed rule follow well-established conduct that constitute actionable quid
Development Act, to make such rules
common law tort and agency principles pro quo and hostile environment
and regulations as may be necessary to
and do not subject respondents or harassment under the Act. This should
carry out its functions, powers, and
defendants to enhanced liability for facilitate more effective training to avoid
duties. See 42 U.S.C. 3535(d).
violations of the Act. Under such discriminatory harassment in housing
B. Summary of Major Provisions standards, a person is directly liable for and should decrease the need for
This rule proposes to codify through his or her own discriminatory housing protracted litigation to resolve disputed
regulation the principles that quid pro practices and, in certain circumstances, claims.
quo and hostile environment is directly liable for actions taken by
others, including agents, when the II. Background
harassment on the basis of race, color,
national origin, religion, sex, disability person knew or should have known of Title VIII of the Civil Rights Act of
or familial status (‘‘protected the discriminatory conduct and failed to 1968, as amended (the Fair Housing
characteristic’’) violate one or more take prompt corrective action that ends
provisions of the Fair Housing Act. As it. The proposed rule would also clarify 2 An agency relationship is created by contract or
noted above, the proposed rule would that direct liability for the actions of by law. Generally, an agency relationship is an
non-agents occurs only when a person arrangement in which one entity or person (the
define ‘‘quid pro quo’’ and ‘‘hostile principal) appoints another (the agent) to act on its
environment’’ harassment under the fails to fulfill a duty to take prompt
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
behalf. However, this proposed rule does not
Fair Housing Act, add illustrations of action to correct and end a non-agent’s purport to define what constitutes an agency
prohibited ‘‘quid pro quo’’ and ‘‘hostile discriminatory conduct, of which the relationship.
3 See also, e.g., Boswell v. Gumbaytay, 2009 WL
environment’’ harassment, and address person knew or should have known.
1515872, *3 (M.D. Ala. 2009) (discussing vicarious
how the traditional standards for direct In contrast to direct liability for the liability of property management companies);
and vicarious liability operate in the conduct of another, a person may be Glover v. Jones, 522 F. Supp. 2d 496, 506–08
Fair Housing Act context, including for vicariously liable for the conduct of his (W.D.N.Y. 2007) (property management company
or her agents regardless of whether the can be vicariously liable for sexual harassment);
claims of harassment. Williams v. Poretsky Mgmt., 955 F. Supp. 490, 496
As proposed to be defined, ‘‘quid pro person knew of or intended the (D. Md. 1996) (rental company may be liable for
quo harassment’’ occurs when a person wrongful conduct or was negligent in employee’s sexual harassment of tenant).
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![63722 Federal Register / Vol. 80, No. 203 / Wednesday, October 21, 2015 / Proposed Rules
Act), prohibits discrimination in the recognized that the Fair Housing Act Moreover, as discussed below, the
availability and enjoyment of housing prohibits harassment because of race or Supreme Court has historically
and housing-related services, facilities, color,4 disability,5 religion,6 national recognized that individuals have
transactions and brokerage businesses origin,7 familial status,8 and sex,9 the heightened rights within the home for
because of race, color, national origin, doctrines of quid pro quo and hostile privacy and freedom from unwelcome
religion, sex, disability and familial environment harassment are not well speech, among other things.12
status. 42 U.S.C. 3601–19. The Act developed under the Fair Housing Act. Therefore, this proposed rule would
contains broad prohibitions against To date, when deciding harassment provide regulations to address
discrimination because of a protected cases, courts have often looked to case specifically harassment in one’s home
characteristic. See 42 U.S.C. 3604, 3605, law decided under Title VII of the Civil and would make clear the differences
3606 and 3617. These provisions Rights Act of 1964 (42 U.S.C. 2000 et between quid pro quo and hostile
prohibit, among other things, se.) (Title VII), which prohibits environment harassment in the home
discriminatory statements, refusals to employment discrimination because of and in the work place. While Title VII
rent or sell, denying access to services, race, color, religion, sex and national and Fair Housing Act case law contain
setting different terms and conditions, origin.10 But the home and the many similar concepts, this proposed
refusing to make reasonable workplace are significantly different regulation describes the appropriate
modifications and accommodations, environments such that strict reliance analytical framework for harassment
discriminating in residential real estate on Title VII case law is not always claims under the Fair Housing Act.
transactions, and retaliation. appropriate. One’s home is a place of The proposed rule addresses only
In 1989, HUD promulgated fair privacy, security, and refuge (or should quid pro quo and hostile environment
housing regulations at 24 CFR part 100 be), and harassment that occurs in or harassment, and not conduct generically
that address discriminatory conduct in around one’s home can be far more referred to as harassment that, for
housing generally. The 1989 regulations intrusive, violative, and threatening different reasons, may violate section
include examples of discriminatory than harassment in the more public 818 or other provisions of the Act. For
housing practices that have been environment of one’s work place.11 example, a racially hostile statement by
interpreted to cover quid pro quo sexual a housing provider to a tenant could
harassment and hostile environment 4 See, e.g., Smith v. Mission Assoc. Ltd. P’ship, indicate a discriminatory preference in
harassment generally. Section 225 F. Supp. 2d 1293, 1298–99 (D. Kan. 2002) (42 violation of section 804(c) of the Act, or
U.S.C. 3604(b)); HUD v. Tucker, 2002 WL it could evidence intent to deny housing
100.65(b)(5) identifies, as an example of 31018606, *3–4 (HUD ALJ 2002) (42 U.S.C. 3604(a)
unlawful conduct, denying or limiting and (b)). or discriminate in the terms or
housing-related services or facilities 5 See, e.g., Neudecker v. Boisclair Corp., 351 F. 3d conditions of housing under sections
because a person refused to provide 361, 364 (8th Cir. 2003) (42 U.S.C. 3604(f)(2)). 804(a) or 804(b), even if the statement
sexual favors. Section 100.400(c)(2) 6 See, e.g., Bloch v. Frischholz, 587 F. 3d 771, 787
does not create a hostile environment or
offers as an example of illegal conduct (7th Cir. 2009) (42 U.S.C. 3604, 3617). establish a quid pro quo. Section 818,
7 See, e.g., Effendi v. Amber Fields Homeowners
‘‘. . . interfering with persons in their which makes it unlawful to ‘‘coerce,
Assoc., 2011 U.S. Dist. Lexis 35265, *1 (N.D. Ill.
enjoyment of a dwelling because of race, 2011) (42 U.S.C. 3604(b) and 3617); Texas v. Crest intimidate, threaten, or interfere with
color, religion, sex, disability, familial Asset Mgmt., 85 F. Supp. 722, 736 (S.D. TX 2000) any person in the exercise or enjoyment
status, or national origin of such (42 U.S.C. 3604(a) and (b), 3617). of’’ rights protected by the Act, or on
8 See, e.g., Bischoff v. Brittain, 2014 U.S. Dist.
persons, or of visitors or associates of account of a person having aided others
LEXIS 145945, *13–14, *17 (E.D. Cal. 2014)
such persons.’’ The 1989 regulations do (3604(b)); United States v. M. Westland Co., 1995
in exercising or enjoying rights
not, however, define quid pro quo or U.S. Dist. LEXIS 22466, *4 (C.D. Cal. 1995) (Fair protected by the Act, could be violated
hostile environment harassment, specify Housing Act provision not specified). by conduct that creates a quid pro quo
standards for examining such claims, or 9 See, e.g., Quigley v. Winter, 598 F. 3d 938, 946
or hostile environment, or by other
provide illustrations of other types of (8th Cir. 2010) (42 U.S.C. 3617); Krueger v. Cuomo, conduct that constitutes retaliation or
115 F. 3d 487, 491 (7th Cir. 1997) (42 U.S.C. 3604,
quid pro quo or hostile environment 3617); Honce v. Vigil, 1 F. 3d 1085, 1088 (10th Cir.
another form of coercion, intimidation,
harassment prohibited by the Act. Nor 1993) (42 U.S.C. 3604(b)); Shellhammer v. Lewallen, threats, or interference because of a
do the 1989 regulations discuss liability 770 F. 2d 167 (6th Cir. 1985) (sexual harassment protected characteristic.13 Section 818
standards for prohibited harassment or under the Fair Housing Act in general).
10 See, e.g., Honce v. Vigil, 1 F. 3d 1085, 1088
other discriminatory housing practices. (10th Cir. 1993); Shellhammer v. Lewallen, 770 F.
home as place where one should be safe and not
On November 13, 2000, HUD vulnerable to sexual harassment); D. Benjamin
2d 167 (6th Cir. 1985); Glover v. Jones, 522 F. Supp. Barros, Home As a Legal Concept, 46 Santa Clara
published a proposed rule entitled 2d 496, 503 (W.D.N.Y. 2007); Beliveau v. Caras, 873 L. Rev. 255, 277–82 (2006) (discussing legal concept
‘‘Proposed Fair Housing Act Regulations F. Supp. 1393, 1396 (C.D. Cal. 1995); see also of home as source of security, liberty and privacy
Amendment Standards Governing Neudecker v. Boisclair Corp., 351 F. 3d 361, 364 which justifies favored legal status in many
(8th Cir. 2003) (applying Title VII concepts to find circumstances); Nicole A. Forkenbrock Lindemyer,
Sexual Harassment Cases’’ (65 FR hostile environment based on disability violated Article, Sexual Harassment on the Second Shift:
67666) seeking comment on standards Act). Unlike Title VII, Title VIII also includes The Misfit Application of Title VII Employment
to be used in evaluating sexual disability and familial status among its protected Standards to Title VIII Housing Cases, 18 Law &
harassment complaints. HUD never characteristics. Ineq. 351, 368–80 (2000) (noting that transporting
11 See, e.g., Quigley v. Winter, 598 F. 3d 938, 947 of Title VII workplace standards for sexual
issued final regulations pursuant to that harassment into Fair Housing Act cases of
(8th Cir. 2010) (emphasizing that defendant’s
proposed rule. Because this proposed harassing conduct was made ‘‘even more egregious’’ residential sexual harassment ignores important
rule addresses harassment more
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by the fact that it occurred in plaintiff’s home, ‘‘a distinctions between the two settings); Michelle
broadly, based on any characteristic place where [she] was entitled to feel safe and Adams, Knowing Your Place: Theorizing Sexual
secure and need not flee.’’); Salisbury v. Hickman, Harassment at Home, 40 Ariz. L. Rev. 17, 21–28
protected by the Act and not solely (1998) (describing destabilizing effect of sexual
974 F. Supp. 2d 1282, 1292 (E.D. Cal. 2013)
because of sex, this proposed rule is not (‘‘[c]ourts have recognized that harassment in one’s harassment in the home).
a continuation of the 2000 rulemaking. own home is particularly egregious and is a factor 12 See e.g. Frisby v. Schultz, 487 U.S. 474, 484
Over time, forms of harassment that that must be considered in determining the (1988) (‘‘[w]e have repeatedly held that individuals
violate the civil rights laws have seriousness of the alleged harassment’’); Williams v. are not required to welcome unwanted speech into
Poretsky Management, 955 F. Supp. 490, 498 (D. their own homes and that the government may
coalesced into two legal doctrines—quid Md. 1996) (noting sexual harassment in the home protect this freedom’’).
pro quo and hostile environment. more severe than in workplace); Beliveau v. Caras, 13 A violation of section 818 may be established
Although HUD and the courts have 873 F. Supp. 1393, 1398 (C.D. Cal. 1995) (describing by the standards for quid pro quo or hostile
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prohibits quid pro quo or hostile existing §§ 100.60, 100.65, 100.80, 1. Quid Pro Quo Harassment
environment harassment, but is not 100.90, 100.120, 100.130, and 100.135,
limited to quid pro quo or hostile and a new § 100.7, addressing how the Paragraph (a)(1) of new § 100.600
environment claims. In addition, the traditional standards for direct and would address quid pro quo harassment
same discriminatory conduct could vicarious liability operate in the Fair under the Fair Housing Act. Paragraph
violate more than one provision of the Housing Act context, including for (a)(1) provides that quid pro quo
Act.14 claims of harassment. harassment occurs when a person is
In sum, this proposed rule would subjected to an unwelcome request or
provide standards that are uniformly A. Quid Pro Quo and Hostile demand because of race, color, religion,
applicable to claims of quid pro quo and Environment Harassment sex, national origin, disability, or
hostile environment harassment under The proposed rule establishes within familial status, and submission to the
the Fair Housing Act, regardless of the proposed Subpart H a new § 100.600, request or demand is, either explicitly
section of the Act that is alleged to have entitled ‘‘Quid Pro Quo and Hostile or implicitly, made a condition related
been violated. These standards would Environment Harassment,’’ which to his or her housing.
be useful to victims of harassment as addresses what conduct constitutes Claims of quid pro quo harassment
well as housing providers seeking to these types of harassment under the Fair may be established on the basis of
ensure their properties are free of illegal Housing Act. This section states that protected characteristics other than sex.
harassment. The proposed rule also quid pro quo harassment and hostile The theory, however, has most typically
provides HUD investigators and environment harassment on the basis of been associated with sex. For example,
administrative law judges, other race, color, national origin, religion, sex, quid pro quo harassment occurs when a
government agencies, and courts with disability, or familial status violate one housing provider conditions a tenant’s
the appropriate standards to be applied or more of the prohibitions against continued housing on the tenant’s
to claims of quid pro quo and hostile discrimination found in sections 804, submission to unwelcome requests for
environment harassment in the housing 805, 806 and 818 of the Fair Housing sexual favors.17 Similarly, conditioning
context. Act. the receipt of privileges or services in
As with other discriminatory housing connection with housing or
III. This Proposed Rule practices prohibited by the Act, any conditioning access to residential real
This proposed rule would amend 24 person who claims to have been injured estate-related transactions on
CFR part 100 to establish a new subpart or believes such person will be injured acquiescence to unwelcome requests or
H, entitled ‘‘Quid Pro Quo and Hostile by prohibited harassment is an demands for sexual favors is illegal quid
Environment Harassment,’’ which aggrieved person under the Act, even if pro quo harassment.18 A person’s
would define ‘‘quid pro quo’’ and that person is not directly targeted by conduct may constitute quid pro quo
‘‘hostile environment harassment’’ the harassment.15 For example, children harassment even where the victim
under the Fair Housing Act. This may be aggrieved by harassment acquiesces or submits to the unwelcome
proposed rule would also add new directed at their parents because the request or demand. For example, if a
illustrations of prohibited harassment children may lose their housing. housing manager demands sexual favors
throughout part 100 by amending Similarly, a person is aggrieved if that under threat of eviction and the resident
person is denied or delayed in receiving acquiesces in order to keep her housing,
environment harassment set out in the rule or by a housing-related opportunity or benefit quid pro quo harassment has
the elements of a section 818 violation based on because another received the benefit. If, occurred.19 Conversely, a person’s
other types of unlawful coercion, intimidation, for example, a property manager awards
threats, or interference. The elements of a section conduct may constitute quid pro quo
818 violation based on these other types of an apartment to an applicant in harassment where the person takes or
unlawful conduct mirror its language: (i) Plaintiff or exchange for sexual favors, the other
threatens to take an action that
complainant exercised or enjoyed a right applicants who were denied the
guaranteed by 42 U.S.C. 3603–3606; (2) defendant’s adversely affects the victim because the
apartment are aggrieved persons.16
or respondent’s conduct constituted coercion, victim has refused to acquiesce or
intimidation, a threat, or interference; and (3) a
15 42
submit to the unwelcome demand.20
causal connection exists between the exercise or U.S.C. 3602(i); see also 24 CFR 100.20.
16 See, e.g., Fair Hous. Council v. Penasquitos
enjoyment of a right and defendant’s or
Casablanca Owner’s Ass’n, 381 Fed. Appx. 674 (9th 17 See, e.g., Woods v. Foster, 884 F. Supp. 1169,
respondent’s conduct. See, e.g., Bloch v. Frischholz,
587 F. 3d 771, 783 (7th Cir. 2009); Hood v. Midwest Cir. 2010) (holding that minor children need not be 1175 (N.D. Ill. 1995) (shelter resident submitted to
Sav. Bank, 95 Fed. Appx. 768, 779 (6th Cir. 2004); the targets of sexual harassment directed at their manager’s demands for sex in exchange for
Nguyen v. Patek, 2014 U.S. Dist. LEXIS 147295, *7– mother but need only suffer ‘‘actual injury as a retaining her housing); cf United States v. Koch, 352
8 (N.D. Ill. 2014) (denying motion to dismiss where result of the defendant’s conduct’’ to establish F. Supp. 2d 970, 981–83 (D. Neb. 2004) (in hostile
Vietnamese-American plaintiffs alleged white standing) (quoting Gladstone Realtors v. Village of environment case, some tenants submitted to sexual
neighbors interfered with enjoyment of their Bellwood, 441 U.S. 91, 103 n.9 (1979)); demands of landlord in order to preserve their
housing rights by subjecting them to pattern of race Shellhammer v. Lewallen, 770 F. 2d 167 (6th Cir. housing).
and national origin harassment); Wells v. Rhodes, 1985) (upholding a finding of discrimination in 18 See, e.g., Boswell v. Gumbaytay, 2009 WL
favor of plaintiffs, wife and husband, who had been 1515872, *5 (M.D. Ala. 2009) (conditioning rent
928 F. Supp. 2d 920, 933 (S.D. OH. 2013) (granting
evicted after wife rebuffed defendant landlord’s amount and repairs to the dwelling on whether
plaintiffs’ motion for summary judgment because a
sexual advances); Grieger v. Sheets, 689 F. Supp. sexual favors are granted); Grieger v. Sheets, 689 F.
reasonable jury could conclude that ‘‘burning a
835 (N.D. Ill. 1988) (upholding both hostile Supp. 835 (N.D. Ill. 1988) (conditioning tenancy
cross on Plaintiffs’ front lawn, with ‘KKK will make
environment and quid pro quo sexual harassment and repairs to dwelling on sexual favors from
you pay’ and the N-word written on it, is certainly claims made by plaintiffs, wife and husband,
tenant).
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interference (or perhaps more accurately a threat or where: landlord made sexual advances to the wife,
intimidation) within the broad meaning of § 3617’’); 19 See, e.g., cases cited at n. 17, supra.
landlord threatened to shoot the husband after he
Ohana v. 180 Prospect Place Realty, 996 F. Supp. confronted the landlord, and landlord refused to
20 See, e.g., Krueger v. Cuomo, 115 F. 3d 487, 490
238, 243 (E.D.N.Y. 1998) (denying defendants’ make promised repairs after wife rebuffed (7th Cir. 1997) (landlord evicted tenant after she
motion to dismiss where defendants interfered with landlord’s advances). Cf. 29 CFR 1604.11(g) (EEOC rebuffed his advances and filed a housing
plaintiffs’ quietude by making racial and anti- regulation providing that ‘‘[w]here employment discrimination claim against him); Miles v. Gilray,
Jewish slurs and epithets, threats of bodily harm, opportunities or benefits are granted because of an 2012 U.S.Dist. LEXIS 90941 at *2, *7 (W.D. N.Y.
and noise disturbances). See also Robert G. individual’s submission to the employer’s sexual 2012) (mobile home park operator served
Schwemm, Neighbor-on-Neighbor Harassment: advances or requests for sexual favors, the employer termination notice when plaintiffs rebuffed sexual
Does the Fair Housing Act Make a Federal Case Out may be held liable for unlawful sex discrimination advances); HUD v. Kogut, 1995 HUD ALJ LEXIS 52.
of It?, 61 Case W. Res. L. Rev. 865 (2011). against other persons who were qualified for but *39 (HUD ALJ 1995) (property manager evicted
14 See 24 CFR 100.50(a). denied that employment opportunity or benefit.’’). tenant after she rebuffed his sexual advances).
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2. Hostile Environment Harassment that the factors to be considered in in the privacy of the home, ‘‘sometimes the
determining whether a hostile last citadel of the tired, the weary, and the
Paragraph (a)(2) of proposed new sick.’’ The State’s interest in protecting the
§ 100.600 addresses hostile environment environment has been created include,
well-being, tranquility, and privacy of the
harassment under the Fair Housing Act. but are not limited to, the nature of the
home is certainly of the highest order in a
Paragraph (a)(2) provides that hostile conduct; the context in which the free and civilized society.25
environment harassment occurs when conduct occurred; the severity, scope,
frequency, duration, and location of the When harassment occurs in the
unwelcome conduct because of race, workplace, the victim can escape to his
color, national origin, religion, sex, incident(s); and the relationships of the
persons involved.23 Assessment of the home. In contrast, when harassment
disability or familial status, is occurs in and around the home, the
sufficiently severe or pervasive as to context in which the conduct occurred
involves consideration of such factors as victim has little opportunity to escape it
create an environment that short of moving or staying away from
unreasonably interferes with the whether the harassment was in or
around the home; whether the the home—neither of which should be
availability, sale, rental, use, or required. As one court noted in a sexual
enjoyment of a dwelling, the provision harassment was accomplished by use of
a special privilege of the perpetrator harassment case under the Act, the
or enjoyment of facilities or services in home is ‘‘a place where [one is] entitled
connection therewith, or the availability (e.g., using a passkey or gaining entry by
reason of the landlord-tenant to feel safe and secure and need not
or terms of residential real estate-related flee.’’ 26 Thus, the nature and frequency
transactions.21 It is well recognized that relationship); whether a threat was
involved; and whether the conduct was of harassing conduct needed to establish
claims of hostile environment employment discrimination under Title
harassment should be evaluated from likely to or did cause anxiety, fear or
hardship. VII does not necessarily transfer to cases
the perspective of a reasonable person under the Fair Housing Act. Instead, the
In considering whether the totality of
in the aggrieved person’s position.22 sanctity of the home must be considered
Establishing hostile environment the circumstances evidences hostile
environment harassment, it is in making the totality of the
harassment requires a showing that: A circumstances assessment. Thus, while
particularly important to consider the
person was subjected to unwelcome Title VII and the Fair Housing Act
place where the conduct occurred.
spoken, written or physical conduct; the regulations proposed by this rule use
Often in a fair housing case the
conduct was because of a protected similar terms, such as ‘‘totality of the
harassment will occur in or around the
characteristic; and the conduct was, circumstances’’ and ‘‘sufficiently severe
home, which should be a haven of
considering the totality of or pervasive,’’ the same or similar
privacy, safety and security. The
circumstances, sufficiently severe or conduct may result in a violation of the
Supreme Court has repeatedly
pervasive that it unreasonably interfered Fair Housing Act even though it may
recognized that heightened rights exist
with or deprived the victim of his or her not violate Title VII.
within the home for, among other
right to use and enjoy the housing or to Proposed § 100.600(a)(2)(i)(B)
things, privacy and freedom from
exercise other rights protected by the intrusive speech.24 For example, in a provides that the absence of
Act. case decided under the Equal Protection psychological or physical harm is not
a. Totality of the Circumstances Clause, the Court described the sanctity dispositive in determining whether
of the home as follows: hostile environment harassment has
Proposed § 100.600(a)(2)(i), entitled occurred. Evidence of such harm is but
‘‘Totality of the circumstances,’’ Preserving the sanctity of the home, the
one of many factors to be considered in
specifies that whether hostile one retreat to which men and women can
repair to escape from the tribulations of their the totality of circumstances. However,
environment harassment exists depends the severity of psychological or physical
daily pursuits, is surely an important value.
upon the totality of the circumstances. Our decisions reflect no lack of solicitude for harm may be considered in determining
Proposed § 100.600(a)(2)(i)(A) provides the right of an individual ‘‘to be let alone’’ the proper amount of any damages to
which an aggrieved person may be
21 See, e.g., Quigley v. Winter, 598 F. 3d 938, 946
(8th Cir. 2010) (sex); Neudecker v. Boisclair Corp.,
23 See, e.g., Hall v. Meadowood, 7 Fed. Appx. 687,
entitled.27
689 (9th Cir. 2001) (describing circumstances to be
351 F. 3d 361, 364 (8th Cir. 2003) (disability); considered in hostile environment case as including 3. Type of Conduct
Krueger v. Cuomo, 115 F. 3d 487, 491 (7th Cir. frequency of offensive conduct; severity; whether it
1997) (sex); Honce v. Vigil, 1 F. 3d 1085, 1088 (10th involves threats, humiliation or ‘‘mere offensive Prohibited quid pro quo harassment
Cir. 1993) (sex); Smith v. Mission Assoc. Ltd. P’ship, utterance;’’ and whether it unreasonably interferes and hostile environment harassment
225 F. Supp. 2d 1293, 1298–99 (D. Kan. 2002)
(race).
living conditions); see also Harris, 510 U.S. at 23 require unwelcome conduct, and
(factors to consider when determining whether a proposed § 100.600(b) explains that the
22 See, e.g., Williams v. Poretsky Mgmt., 955 F.
work environment is hostile under Title VII may
Supp. 490, 497 (D. Md. 1996) (in hostile include ‘‘the frequency of the discriminatory unwelcome conduct can be written,
environment sexual harassment case under the Act, conduct; its severity; whether it is physically verbal, or other conduct and does not
noting that ‘‘[w]hether a reasonable person would threatening or humiliating, or a mere offensive require physical contact. The
have been detrimentally affected by the harassment utterance; and whether it unreasonably interferes
to which [plaintiff was] subjected is with an employee’s work performance’’).
unwelcome conduct may come in many
quintessentially a question of fact.’’) (emphasis 24 See, e.g., Fla. Bar v. Went For It, Inc., 515 U.S. forms, such as using threatening
added) (quotations omitted); Beliveau v. Caras, 873 618, 625 (1995) (describing home as place to ‘‘avoid imagery (e.g., cross burning or swastika);
F. Supp. 1393, 1397–98 (C.D. Cal. 1995) (adopting intrusions’’); O’Connor v. Ortega, 480 U.S. 709, 724 damaging property; physical assault;
‘‘reasonable woman standard’’ in hostile (1987) (holding reasonableness standard is proper
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
environment sexual harassment case under the Act for workplace searches because employee’s 25 Carey v. Brown, 447 U.S. 455, 471 (1980)
and observing that ‘‘women remain expectation of privacy is much less than when they
disproportionately vulnerable to rape and sexual are at home); Cohen v. California, 403 U.S. 15, 21– (quoting Gregory v. City of Chicago, 394 U.S. 111,
assault, which can and often does shape women’s 22 (1971) (‘‘[T]his court has recognized that 125 (1969) (Black, J., concurring))
26 Quigley v. Winter, 598 F. 3d 938, 947 (8th Cir.
interpretations of words or behavior of a sexual government may properly act in many situations to
nature, particularly if unsolicited or occurring in an prohibit intrusion into the privacy of the home of 2010) (sexual harassment violation of Act).
inappropriate context.’’). See also Burlington 27 See, e.g., Harris, 510 U.S. at 23 (noting that
unwelcome views and ideas which cannot be
Northern and Santa Fe Ry. v. White, 548 U.S. 53, totally banned from the public dialogue . . . effect on victim’s psychological well-being is
68–9 (2006) (using ‘‘reasonable employee’’ standard [Regarding the] claim to a recognizable privacy relevant to determining whether she ‘‘found the
in Title VII case); Harris v. Forklift Systems, Inc., interest . . ., surely there is nothing like the interest environment abusive’’ but absence of psychological
510 U.S. 17, 21–22 (1993) (applying an objective in being free from unwanted expression in the harm is not dispositive in determining whether
and subjective reasonable person standard). confines of one’s own home.’’). harassment occurred).
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threatening physical harm to an B. Illustrations—Subparts B, C, and F add the following paragraph as an
individual, family member, assistance The proposed rule would add illustration of a prohibited quid pro quo
animal or pet; or impeding the physical illustrations of quid pro quo and hostile harassment under the Fair Housing Act:
access of a person with a mobility environment harassment to existing Representing to an applicant that a unit
impairment. The unwelcome conduct §§ 100.60, 100.65, 100.80, 100.90, is unavailable because of the applicant’s
could be spoken or written, such as 100.120, 100.130, and 100.135. response to a request for a sexual favor
requests for sexual favors. It may In § 100.60, entitled ‘‘Unlawful refusal or other harassment because of race,
include gestures, signs, and images to sell or rent or to negotiate for the sale color, religion, sex, familial status,
directed at the aggrieved persons. It may or rental,’’ the proposed rule would add national origin, or disability.
include the use of racial, religious or the following paragraphs as illustrations In § 100.90, entitled ‘‘Discrimination
ethnic epithets, derogatory statements or of prohibited quid pro quo and hostile in the provision of brokerage services,’’
expressions of a sexual nature, taunting environment harassment under the Fair the proposed rule would add the
or teasing related to a person’s Housing Act: Conditioning the following paragraphs as illustrations of
disability, or threatening statements. In availability of a dwelling, including the prohibited quid pro quo and hostile
addition, the unwelcome conduct may price, qualification criteria, or standards environment under the Fair Housing
be communicated to the targeted or procedures for securing a dwelling, Act: Conditioning access to brokerage
individual in direct and indirect ways. on a person’s response to harassment services on a person’s response to
For example, the unwelcome conduct because of race, color, religion, sex, harassment because of race, color,
may involve the use of email, text familial status, national origin, or religion, sex, familial status, national
messages, or social media. disability; subjecting a person to origin, or disability; subjecting a person
As is the case with other prohibited harassment because of race, color, to harassment because of race, color,
conduct under the Act, an individual religion, sex, familial status, national religion, sex, familial status, national
violates the Act so long as the quid pro origin, or disability that causes the origin, or disability that has the effect of
quo or hostile environment harassment person to vacate a dwelling or abandon discouraging or denying access to
is because of a protected characteristic, efforts to secure the dwelling. brokerage services.
even if he or she shares the same Conditioning the ‘‘availability’’ of a In § 100.120, entitled ‘‘Discrimination
protected characteristic as the targeted dwelling means the initial or continued in the making of loans and in the
person. For example, in sexual availability of a dwelling, or both. provision of other financial services,’’
harassment claims, an individual In § 100.65, entitled ‘‘Discrimination the proposed rule would add the
violates the Act by harassing a person of in terms, conditions, and privileges and following paragraphs as illustrations of
the same sex or by harassing both men in services and facilities,’’ the proposed prohibited quid pro quo and hostile
and women, so long as the unwelcome rule would add the following paragraph environment harassment under the Fair
as an illustration of prohibited quid pro Housing Act: Conditioning the
conduct is because of sex. Similarly, a
quo and hostile environment availability of a loan or other financial
person violates the Act by harassing a
harassment under the Fair Housing Act: assistance that is or will be secured by
person of the same race or color if the
Conditioning the terms, conditions, or a dwelling on a person’s response to
unwelcome conduct is because of race
privileges relating to the sale or rental harassment because of race, color,
or color.
of a dwelling or denying or limiting the religion, sex, familial status, national
With respect to sexual harassment,
services or facilities in connection with origin, or disability; subjecting a person
harassing conduct need not be
a dwelling on a person’s response to to harassment because of race, color,
motivated by sexual desire in order to
harassment because of race, color, religion, sex, familial status, national
support a finding of illegal
religion, sex, familial status, national origin, or disability that affects the
discrimination. Sexually harassing availability of a loan or other financial
conduct must occur ‘‘because of sex,’’ origin, or disability; subjecting a person
to harassment because of race, color, assistance that is or will be secured by
which can be shown by, for example, a dwelling.
conduct motivated by hostility toward religion, sex, disability, familial status,
or national origin that has the effect of In § 100.130, entitled ‘‘Discrimination
persons of one sex; conduct that occurs in the terms and conditions for making
because a person acts in a manner that imposing different terms, conditions, or
privileges relating to the sale or rental available loans or other financial
conflicts with gender-based stereotypes assistance,’’ the proposed rule would
of how persons of a particular sex of a dwelling or denying or limiting
service or facilities in connection with add the following paragraphs as
should act; or conduct motivated by illustrations of prohibited quid pro quo
sexual desire or control. the sale or rental of a dwelling.
In § 100.80, entitled ‘‘Discriminatory and hostile environment harassment
4. Number of Incidents representation on the availability of under the Fair Housing Act:
dwellings,’’ the proposed rule would Conditioning the aspect of a loan or
Proposed § 100.600(c) provides that a other financial assistance to be provided
single incident because of race, color, with respect to a dwelling, or the terms
hostile housing environment in violation of the Act,
religion, sex, familial status, national ‘‘even if it is an isolated incident’’); Beliveau v. or conditions thereof, on a person’s
origin or disability can constitute an Caras, 873 F. Supp. 1393, 1398 (C.D. Cal. 1995) response to harassment because of race,
illegal quid pro quo, or, if sufficiently (stating that a single incident of sexual touching
color, religion, sex, familial status,
severe, a hostile environment in that would constitute sexual battery under state
national origin, or disability; subjecting
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
law, ‘‘would support a [hostile environment] sexual
violation of the Act.28 harassment claim under the federal Fair Housing a person to harassment because race,
Act.’’); see also cases cited at note 11, supra, and color, religion, sex, familial status,
28 See, e,g., Quigley v. Winter, 598 F. 3d 938 (8th
accompanying text (explaining that harassment that
Cir. 2010) (holding that a single instance of quid pro occurs in or around one’s home is especially
national origin, or disability that has the
quo violated the Act where landlord implied that intrusive, violative, and threatening); cf. Faragher v. effect of imposing different terms or
the return of a rent deposit depended on seeing City of Boca Raton, 524 U.S. 775, 788 (U.S. 1998) conditions for the availability of such
plaintiff’s nude body or receiving a sexual favor); (noting that ‘‘isolated incidents [of harassment] loans or other financial assistance.
Doe v. Ore Duckworth, 2013 U.S. Dist. LEXIS (unless extremely serious) will not amount to
113287, *12 (E.D. La. Aug. 12, 2013) (holding that discriminatory changes in the ‘terms and conditions
In § 100.135, entitled ‘‘Unlawful
touching of an intimate area of a plaintiff’s body is of employment’ ’’ constituting a hostile practices in the selling, brokering, or
conduct that can be sufficiently severe to create a environment) (citations omitted; appraising of residential real property,’’
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![63726 Federal Register / Vol. 80, No. 203 / Wednesday, October 21, 2015 / Proposed Rules
the proposed rule would add the agent) when the person knew or should arises when, for example, a person,
following paragraph regarding have known of the discriminatory including a management company,
prohibited quid pro quo harassment conduct. New § 100.7(a)(1)(iii) also homeowner’s association, condominium
under the Fair Housing Act: proposes that a housing provider’s duty association, or cooperative, knew or
Conditioning the terms of an appraisal to take prompt action to correct and end should have known that a resident was
of residential real property in a discriminatory housing practice by a harassing another resident, and yet did
connection with the sale, rental, or third-party can derive from an not take prompt action to correct and
financing of a dwelling on a person’s obligation to the aggrieved person end it, while having a duty to do so. As
response to harassment because of race, created by contract or lease (including recognized by § 100.7(a)(1)(iii), this duty
color, religion, sex, familial status, bylaws or other rules of a homeowners may be created, for example, by a lease
national origin, or disability. association, condominium or
The proposed rule would not add an or other contract under which a housing
cooperative), or by federal, state or local
additional example of quid pro quo or provider is legally obligated to exercise
law.30
hostile environment harassment to With respect to a person’s direct reasonable care to protect residents’
§ 100.400, entitled ‘‘Prohibited liability for the actions of an agent, safety and curtail unlawful conduct in
Interference, Coercion or Intimidation,’’ § 100.7(a)(1)(ii) recognizes that a areas under the housing provider’s
because existing § 100.400(c)(2) already principal who knows or should have control, or by federal, state or local laws
encompasses both in identifying as an known that his or her agent has engaged requiring the same.
example of conduct made unlawful by in or is engaging in unlawful conduct A principal ‘‘should have known’’
section 818: ‘‘Threatening, intimidating and allows it to continue is complicit in about the illegal discrimination of the
or interfering with persons in their or has ratified the discrimination.31 principal’s agent when the principal is
enjoyment of a dwelling because of the With respect to direct liability for the found to have had knowledge from
race, color, religion, sex, handicap, conduct of a non-agent, § 100.7(a)(1)(iii) which a reasonable person would
familial status, or national origin of such codifies the traditional principle of conclude that the agent was
persons, or of visitors or associates of liability, and HUD’s longstanding discriminating.33 For example, if a
such persons.’’ position, that a person is directly liable housing provider’s male maintenance
C. Establishing Liability for under the Act for harassment worker enters female tenants’ units
Discriminatory Housing Practices perpetrated by non-agents if the person without notice using a passkey, and
knew or should have known of the
This proposed rule would add new enters their bedrooms or bathrooms
harassment, had a duty to take prompt
§ 100.7 to subpart A (General), entitled while they are changing or showering
action to correct and end the
‘‘Liability for Discriminatory Housing and exposes himself, and the tenants
harassment, and failed to do so or took
Practices.’’ This proposed rule is complain about this conduct to the
action that he or she knew or should
intended to clarify standards for liability manager, the manager has reason to
have known would be unsuccessful in
under this part, based on traditional know that unlawful discrimination may
ending the harassment.32 This liability
principles of tort liability, and not to be occurring. If the manager conveys
impose any new legal obligations or 30 See, e.g., Reeves v. Carrollsburg Condo. Unit this information to the owner, and
create or define new agency Owners Ass’n., 1997 U.S. Dist. LEXIS 21762, *26 neither the owner nor the manager takes
relationships or duties of care.29 (D.D.C. 1997) (denying association’s motion for any corrective action, they are both
summary judgment because association knew or
1. Direct Liability should have known of resident’s harassment of liable for violating the Act. In that case,
plaintiff and had a duty to enforce its bylaws,
Proposed paragraph (a) of § 100.7 including sanctions and litigation, yet failed to do
identifies direct liability under the Act. association that knew of harassment by resident but
so); see also infra note 32 and accompanying text). failed to take corrective actions may violate Act);
New § 100.7(a)(1)(i) proposes that a 31 See, e.g., United States v. Balistrieri, 981 F. 2d
see also. Bradley v. Carydale Enterprises, 707 F.
person is liable for his or her own 916, 930 (7th Cir. 1992) (owner liable for agent’s Supp. 217 (E.D. Va. 1989) (finding that owners and
discriminatory housing practices. New racially discriminatory rental practices of which he managers’ failure to address one tenant’s racial
knew and failed to stop); Heights Community harassment of a neighboring tenant states a claim
§§ 100.7(a)(1)(ii) and (a)(1)(iii) describe Congress v. Hilltop Realty, Inc., 774 F. 2d 135, 141, under 42 U.S.C. 1981, 1982); Freeman v. Dal-Tile
direct liability grounded in negligence. (6th Cir. 1985) (realty firm that knew of fair housing Corp., 750 F. 3d 413, 422–23 (4th Cir. 2014)
New § 100.7(a)(1)(ii) proposes that a violations by its agents and failed to take corrective (holding that ‘‘an employer is liable under Title VII
person is directly liable for failing to action were liable); Richards v. Bono, 2005 U.S. for third parties creating a hostile work
Dist. LEXIS 43585, *32 (M.D. Fla. 2005) (wife/co-
take prompt action to correct and end a owner who knew of husband’s sexual harassment
environment if the employer knew or should have
discriminatory housing practice by that known of the harassment and failed to take prompt
yet failed to stop it liable for that violation); United
remedial action reasonably calculated to end [it].’’)
person’s employee or agent where the States v. Veal, 365 F. Supp 2d 1034, 1041 (W.D. Mo.
(4th Cir. 2014) (internal quotation marks and
person knew or should have known of 2004) (same).
32 See, e.g., Neudecker v. Boisclair Corp., 351 F.
citations omitted); Galdamez v. Potter, 415 F. 3d
the discriminatory conduct. New 1015, 1022 (9th Cir. 2005) (‘‘An employer may be
3d 361, 364 (8th Cir. 2003) (owner may be liable
§ 100.7(a)(1)(iii) proposes that a person for acts of tenants and management’s children after
held liable for the actionable third-party harassment
is directly liable for failing to fulfill a of its employees where it ratifies or condones the
failing to respond to plaintiff’s complaints of
conduct by failing to investigate and remedy it after
duty to take prompt action to correct harassment); Fahnbulleh v. GFZ Realty, LLC, 795 F.
learning of it.’’).
and end a discriminatory housing Supp. 2d 360, 364–65 (D. Md. 2011) (denying
33 The ‘‘knew or should have known’’ concept of
landlord’s motion to dismiss because the Act
practice by a third-party (i.e., a non- liability is well-established in civil rights and tort
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
imposes no categorical rule against landlord
liability for tenant-on-tenant harassment); Wilstein law. As the Supreme Court has recognized, fair
29 See Meyer v. Holley, 537 U.S. at 282, 287 v. San Tropai Condo. Master Ass’n, 1999 U.S. Dist. housing actions are essentially tort actions. See
(applying ‘‘traditional agency principles’’ and LEXIS 7031, *28–33 (N.D. Ill. Apr. 21, 1999) Meyer v. Holley, 537 U.S. 280, 285 (2003) (citing
‘‘ordinary background principles’’ of tort liability to (rejecting condo association’s argument that it had Curtis v. Loether, 415 U.S. 189, 195–96 (1974)); see
Fair Housing Act claim); see also, e.g., Restatement no duty to stop harassment of plaintiff by other also Fahnbulleh v. GZF Realty, LLC, 795 F. Supp.
(Third) of Agency section 7.05 (‘‘A principal . . . residents and holding that association could be 2d 360, 363 (D. Md. 2011) (quoting Williams v.
is subject to liability for harm to a third party liable where evidence indicated that association Poretsky Mgmt., 955 F. Supp. 490, 496 (D. Md.
caused by [an] agent’s conduct if the harm was knew of the harassment and bylaws authorized the 1996)) (‘‘[c]onduct is imputable to a landlord, if the
caused by the principal’s negligence in selecting, association to regulate such conduct); Reeves v. landlord knew or should have known of the
training, supervising, or otherwise controlling the Carrollsburg Condo. Unit Owners Ass’n, 1997 U.S. harassment and took no effectual action to correct
agent.’’). Dist. LEXIS 21762, * 26 (D.D.C. 1997) (condo the situation.’’).
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![Federal Register / Vol. 80, No. 203 / Wednesday, October 21, 2015 / Proposed Rules 63727
the principal is liable as if the principal practices of his or her agents or As provided in new
had committed the illegal act.34 employees, as specified by agency law. § 100.600(a)(2)(ii), the proposed rule
Similarly, an apartment owner This provision is consistent with the would not extend to the Fair Housing
‘‘should have known’’ of tenant holding of Meyer v. Holley, 537 U.S. Act the judicially-created Title VII
harassment by another tenant when the 280, 285–289 (2003) that traditional affirmative defense to an employer’s
owner had knowledge from which a principles of agency law apply in fair vicarious liability for hostile
reasonable person would conclude that housing cases. Under well-established environment harassment committed by
the harassment was occurring. It is principles of agency law, a principal is a supervisory employee. The Title VII
important to note, however, that not vicariously liable for the actions of his affirmative defense permits an employer
every quarrel among neighbors amounts or her agents taken within the scope of to avoid vicarious liability for such
to a violation of the Fair Housing Act.35 their relationship or employment, as harassment by showing that (1) the
Proposed § 100.7(a)(2) provides that well as for actions committed outside employer exercised reasonable care to
corrective actions must be effective in the scope of the relationship or prevent and correct promptly the
ending the discrimination, but may not employment when the agent is aided in supervisor’s harassing behavior,
injure the aggrieved persons.36 For the commission of such acts by the including implementing a policy to
example, corrective actions appropriate existence of the agency relationship.37 prevent and correct instances of sexual
for a housing provider to utilize to stop Unlike direct liability, someone may be harassment and procedures for training
tenant-on-tenant harassment might vicariously liable for the acts of an agent and complaint filing; and (2) the
include verbal and written warnings; regardless of whether the person knew employee unreasonably failed to take
enforcing lease provisions to move, of or intended the wrongful conduct or advantage of any preventative or
evict, or otherwise sanction tenants who was negligent in preventing it from corrective opportunities provided by the
harass or permit guests to harass; occurring. In determining whether a employer to otherwise avoid harm.39
issuing no-trespass orders or reporting principal is vicariously liable, an agent’s The Title VII affirmative defense applies
conduct to the police; and establishing responsibilities, duties, and functions only where the supervisor’s hostile
an anti-harassment policy and must be carefully examined to environment harassment did not
complaint procedures, depending on the determine whether an agency involve a tangible employment action,
nature, frequency, and severity of the relationship exists, and also whether the e.g., hiring, firing, demotion,
harassment, and the size and authority conduct was within the scope of the undesirable reassignment, or other
of the provider. When the perpetrator is agency relationship or aided by the actions resulting in a significant change
an employee of the housing provider, existence of the agency relationship.38 in employment status.
corrective actions might include Noting that common-law principles of
training, warnings, or reprimands; 37 See Meyer, 537 U.S. at 285 (‘‘[T]raditional
agency liability ‘‘may not be transferable
termination or other sanctions; and vicarious liability rules . . . make principals or
employers vicariously liable for acts of their agents in all their particulars to Title VII,’’ 40
reports to the police. The housing
or employees in the scope of their authority or the Supreme Court fashioned this
provider should follow up with the employment.’’); Glover v. Jones, 522 F. Supp. 2d defense to employer liability in order to
victim of the harassment after the 496, 507 (W.D.N.Y. 2007) (holding that ‘‘a property
‘‘adapt agency concepts to the practical
corrective action is taken to ensure that owner may be vicariously liable under the Fair
Housing Act for the actions of an employee even objectives of Title VII.’’ 41 Specifically,
it was effective. If the housing provider
when they are outside the scope of employment the Court adopted the defense ‘‘[i]n
knows or should have known that the . . . if the employee was aided in accomplishing order to accommodate the agency
corrective action was ineffective, the the tort by the existence of the agency relation.’’)
principles of vicarious liability for harm
provider has a duty to take additional (quoting Mack v. Otis Elevator Co., 326 F. 3d 116,
123 (2d Cir. 2003) (internal quotation marks caused by misuse of supervisory
corrective actions.
omitted); see also Boswell v. GumBayTay, No. 2:07– authority, as well as Title VII’s equally
2. Vicarious Liability CV–135–WKW[WO], 2009 U.S. Dist. LEXIS 45954, basic policies of encouraging
*17 (M.D. Ala. June 1, 2009) (holding that vicarious
Proposed paragraph (b) of § 100.7 liability attached to property owner where property forethought by employers and saving
provides that a person is vicariously manager’s ‘‘position essentially gave him unfettered action by objecting employees.’’ 42 The
access to communicate with and personally visit
liable for the discriminatory housing [the plaintiff]’’ and he ‘‘used his power as property of Chicago v. Matchmaker Real Estate Sales Center,
manager as a vehicle through which to perpetrate 982 F. 2d 1086, 1096–98 (7th Cir. 1992); United
34 See, e.g., Fahnbulleh, 795 F. Supp. 2d at 360, his unlawful conduct by refusing repairs, raising States v. Balistrieri, 981 F. 2d 916, 930 (7th Cir.
363; Williams v. Poretsky Mgmt., 955 F. Supp. 490, the rent, and attempting to evict [the plaintiff] as
1992); Walker v. Crigler, 976 F. 2d 900, 903–05 (4th
496 (D. Md. 1996). a consequence for [her] refusal to provide sexual
Cir. 1992); Hamilton v. Svatik, 779 F. 2d 383, 388
35 See, e.g., Bloch v. Frischholz, 587 F. 3d 771, favors.’’); Glover at 522 F. Supp. 2d at 507 (rejecting
(7th Cir. 1985); Marr v. Rife, 503F. 2d 735, 741 (6th
783 (7th Cir. 2009) (quoting Halprin v. Prairie defendant property owner’s motion for summary
Cir. 1974); United States v. Prach, 2005 WL
Single Family Homes of Dearborn Park Ass’n, 388 judgment on the issue of vicarious liability where
1950018 *4 (E.D. Wa. 2005); Richards v. Bono, 2005
F. 3d 327, 330 (7th Cir. 2004) (noting that evidence showed that property manager used his
WL 1065141 *7 (M.D. Fla. 2005); United States v.
interference under § 818 ‘‘is more than a ‘quarrel ‘‘position as the de facto landlord to perpetrate FHA
Veal, 365 F. Supp. 2d 1034, 1041 (W.D. Mo. 2004);
among neighbors’ ’’); Sporn v. Ocean Colony [harassment] violations . . . giving] him the
United States v. Habersham Props., 319 F. Supp. 2d
Condominium Assn, 173 F. Supp. 2d 244, 251–52 opportunity to visit the apartment when he wanted,
1366,1375 (N.D. Ga. 2003); United States v. Garden
(D.N.J. 2001) (noting that section 818 ‘‘does not [ ] and enabl[ing] him to control Plaintiff’s rent’’);
Richards v. Bono, 2005 U.S. Dist. LEXIS 43585, *30 Homes Mgmt., 156 F. Supp. 2d 413, 424–25 (D.N.J.
impose a code of civility’’ on neighbors); United
(M.D. Fla. 2005) (holding that wife/co-owner of 2001); Beliveau v. Caras, 873 F. Supp. 1393, 1400–
States v. Weisz, 914 F. Supp. 1050, 1054–55
property could be vicariously liable for husband’s 01 (C.D. Cal. 1995).
(S.D.N.Y. 1996) (holding that allegations that Jewish
39 See EEOC Enforcement Guidance on Vicarious
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
neighbor harassed complainants because of their harassment where husband acted as her agent and
religion were ‘‘nothing more than a series of used his position as owner, property manager, and Employer Liability for Unlawful Harassment by
skirmishes in an unfortunate war between maintenance supervisor to subject the plaintiff to Supervisors, http://www.eeoc.gov/policy/docs/
neighbors’’). But see Ohana v. 180 Prospect Place, sexual harassment by using a key to enter plaintiff’s harassment.html. See also Vance v. Ball State, 133
996 F. Supp. 238, 243 (E.D.N.Y. 1998) (neighbors apartment and threatening plaintiff with eviction). S. Ct. 2434, 2439 (2013); Burlington Industries, Inc.
who intentionally intrude upon quietude of 38 See, e.g, United States v. Hylton, 590 Fed. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City
another’s home may violate Act). Appx. 13, 17 (2d Cir. 2014); Cleveland v. Caplaw of Boca Raton, 524 U.S. 775, 806–08 (1998).
36 See, e.g., Miller v. Towne Oaks East 40 Ellerth, 524 U.S. at 755 (internal quotations
Enters., 448 F. 3d 518, 522 (2d Cir. 2006);
Apartments, 797 F. Supp. 557, 562 (E.D. Tex.1992) Alexander v. Riga, 208 F. 3d 419, 430–33 (3d Cir. omitted) (quoting Meritor Sav. Bank, FSB v. Vinson,
(finding landlord liable for violating Act by evicting 2000); Jankowski Lee & Assocs. v. Cisneros, 91 F. 477 U.S. 57, 72 (1986)).
41 Faragher, 524 U.S. at 802.n3.
both harasser and victim of harassment instead of 3d 891, 896–97 (7th Cir. 1996); Cabrera v.
only harasser). Jakabovitz, 24 F. 3d 372, 388 (2d Cir. 1994); City 42 Ellerth, 524 U.S. at 764.
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![63728 Federal Register / Vol. 80, No. 203 / Wednesday, October 21, 2015 / Proposed Rules
Court reasoned that limiting employer that a supervisor’s harassing conduct plays a far less significant role in
liability would ‘‘effect Congress’ ‘‘in [a] sense . . . is always aided by the facilitating harassment.54 While
intention to promote conciliation rather agency relation’’ because of his or her workplace harassment may be
than litigation in the Title VII context power and authority in the workplace,49 perpetrated by an agent who has no
and the EEOC’s policy of encouraging the Court also noted that it is ‘‘less authority over the terms or conditions of
the development of grievance obvious’’ that a supervisor is aided by the victim’s employment (e.g., by a co-
procedures [by employers].’’ 43 the agency relationship where the worker) such that the harassment is not
The Title VII affirmative defense is supervisor creates a hostile environment aided by the perpetrator’s agency
not appropriately applied to harassment that does not involve a tangible relationship with the employer,
in the housing context because the Fair employment action.50 The Court was harassment of a homeseeker or tenant by
Housing Act simply follows traditional concerned that to hold employers an agent of a housing provider does
principles of vicarious liability.44 But vicariously liable for hostile involve an agent who has authority over
even if the Fair Housing Act did environment harassment by a supervisor terms or conditions of the homeseeker’s
authorize policy-driven adaptations of that did not involve a tangible or tenant’s housing or housing-related
agency principles in some employment action 51 would undermine services.55 Whether the perpetrator is a
circumstances, the significant difference the traditional distinction between property manager, a mortgage loan
between the enforcement policies of employer liability for harassment by a officer, a realtor, or a management
Title VII and the Fair Housing Act make supervisor, for which employers company’s maintenance person, a
the affirmative defense to employer typically are held vicariously liable, and housing provider’s agent holds an
liability neither relevant nor appropriate employer liability for co-worker unmistakable position of power and
to apply to liability under the Fair harassment, for which employers are control over the victimized homeseeker
Housing Act. Most notably, employees typically liable under a negligence or resident. For example, a property
are required to exhaust their theory.52 To avoid this result, the Court manager can recommend (or sometimes
administrative remedies before drew a hard line separating two even initiate) the eviction of a
proceeding to court under Title VII,45 categories of supervisor harassment: (1) harassment victim or refuse to renew a
whereas the Fair Housing Act has no Those involving a tangible employment victim’s lease, while a maintenance
exhaustion requirement. Nothing in the action, where the supervisory function person may withhold repairs to a
Act requires victims of housing is clear and manifest, and thus the tort victim’s apartment or may access the
discrimination, before filing a civil plainly aided by the agency victim’s apartment without proper
action, to file an administrative relationship; and (2) those not involving notice or justification. Likewise, a
complaint with HUD or to await HUD’s a tangible employment action, where realtor can refuse to show a home to or
authorization to initiate a lawsuit. the supervisors’ harassment is less present a purchase offer from a
Rather, the Fair Housing Act ‘‘provide[s] distinguishable from harassment by harassment victim, while a loan officer
all victims of [housing discrimination] non-supervisory co-workers.53 The might reject a victim’s mortgage
two alternative mechanisms by which to Court held that where hostile application or alter the loan terms being
seek redress: Immediate suit in federal environment harassment by a supervisor offered. Thus, unlike in the employment
district [or state] court, or a simple, does not result in a tangible arena, an agent who harasses residents
inexpensive, informal conciliation employment action, employers can raise or homeseekers is aided by his agency
procedure, to be followed by litigation the negligence-based affirmative defense relationship with the housing provider,
should conciliation efforts fail.’’ 46 Even to vicarious liability described above. whether or not a tangible housing action
where a fair housing complainant But the concerns that led the Supreme results.56 For this reason, the Title VII
chooses to file an administrative Court to distinguish workplace affirmative defense is not relevant to the
complaint with HUD, the complainant harassment by a supervisor from that by effective resolution of fair housing
need not wait for HUD to act but rather a fellow employee do not extend to the disputes. Significantly, we are unaware
may simultaneously initiate a lawsuit in housing context where supervisory of any court having extended the Title
federal or state court.47 status of a housing provider’s agent VII affirmative defense to fair housing
Nor do the specific, practical concerns claims.
that led the Court to adopt the 49 Ellerth, 524 U.S. at 763. Instead, the affirmative defense would
affirmative defense to vicarious liability 50 Id. (observing that ‘‘there are acts of harassment add additional burdens that are
for certain employment relationships a supervisor might commit . . . where the
supervisor’s status makes little difference.’’); see incompatible with the broad protections
arise in the housing context. In adopting also id. at 761 (defining a ‘‘tangible employment and streamlined enforcement
the affirmative defense under Title VII, action’’ as ‘‘a significant change in employment mechanisms afforded by the Fair
the Supreme Court distinguished status, such as hiring, firing, failing to promote,
reassignment with significantly different
between workplace harassment responsibilities, or a decision causing a significant
54 Cf. Arguello v. Conoco, Inc., 207 F. 3d 803, 810
perpetrated by supervisors, which is change in benefits’’). (5th Cir. 2000) (holding that the Title VII affirmative
often facilitated by the supervisor’s 51 With respect to harassment involving a tangible defense does not apply to harassment claims under
42 U.S.C. 1981 and Title II of the Civil Rights Act
agency relationship with the employer, employment action, the Court held that ‘‘When a
of 1964, 42 U.S.C. 2000a).
supervisor makes a tangible employment decision,
and harassment perpetrated by co- there is assurance the injury could not have been 55 Cf. id. at 810 (noting that racially derogatory
workers, which is not similarly inflicted absent the agency relation. Id. at 761–62. remarks and other discrimination directed at
facilitated.48 While the Court recognized
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
Thus, the Court concluded, ‘‘a tangible employment plaintiff-customers by non-supervisory employee
action taken by the supervisor becomes for Title VII ‘‘was just as harmful as if the discriminatory acts
43 Id.
purposes the act of the employer.’’ Id. at 762. had been committed by one of [defendant-
(internal citations omitted).
44 See
52 See id. at 760 (expressing concern that ‘‘an employer’s] supervisory employees’’).
Meyer, 537 U.S. at 285.
45 See 42 U.S.C. 2000e–5(f)(1).
employer would be subject to vicarious liability not 56 See, e.g, Salisbury v. Hickman, 974 F. Supp. 2d
only for all supervisor harassment, but also for all 1282, 1293 (E.D. Cal. 2013) (noting that ‘‘Mr.
46 Gladstone Realtors v. Village of Bellwood, 441
co-worker harassment.’’); see also id. (citing the Crimi’s ability [as the on-site property manager] to
U.S. 91, 104 (1979) (emphasis added); see also 42 ‘‘knows or should have known’’ negligence influence Ms. Salisbury’s well-being . . . adds yet
U.S.C. 3610, 3613. standard of liability for cases of harassment another degree of severity to Mr. Crimi’s [harassing]
47 See 42 U.S.C. 3613(a)(2)–(3). between ‘‘fellow employees’’ established by 29 CFR conduct. This reality exists even if Mr. Crimi did
48 See Ellerth, 524 U.S. at 763–65; Faragher, 524 1604.11(d)). not engage in any quid pro quo sexual
U.S. at 801–03. 53 See Ellerth, 524 U.S. at 762–63. harassment.’’).
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![Federal Register / Vol. 80, No. 203 / Wednesday, October 21, 2015 / Proposed Rules 63729
Housing Act. Requiring victims of public places, and the differences in the regulate, real property acquisition,
hostile environment harassment to enforcement regimes of the two statutes. disposition, leasing, rehabilitation,
complain to their housing provider or alteration, demolition or new
IV. Findings and Certifications
risk forfeiting their ability to obtain construction, or establish, revise, or
relief under the Fair Housing Act would Regulatory Review—Executive Orders provide for standards for construction or
unduly burden the large proportion of 12866 and 13563 construction materials, manufactured
tenants who have little to no contact Under Executive Order 12866 housing, or occupancy. This rule is
with their housing providers except (Regulatory Planning and Review), a limited to the procedures governing fair
through an onsite building manager or determination must be made whether a housing enforcement. Accordingly,
maintenance person who may be the regulatory action is significant and under 24 CFR 50.19(c)(3), this rule is
very agent responsible for the therefore, subject to review by the Office categorically excluded from
harassment. Moreover, in HUD’s of Management and Budget (OMB) in environmental review under the
experience, particularly in addressing accordance with the requirements of the National Environmental Policy Act (42
instances of sexual harassment, tenants order. Executive Order 13563 U.S.C. 4321).
who are victims of sexual harassment by (Improving Regulations and Regulatory
the landlord’s agent are especially Regulatory Flexibility Act
Review) directs executive agencies to
vulnerable. A housing provider’s analyze regulations that are ‘‘outmoded, The Regulatory Flexibility Act (5
liability for such conduct should not be ineffective, insufficient, or excessively U.S.C. 4321, et seq.) generally requires
made contingent upon a tenant’s ability burdensome, and to modify, streamline, an agency to conduct a regulatory
to avail herself of a complaint process— expand, or repeal them in accordance flexibility analysis of any rule subject to
even an adequate complaint with what has been learned. Executive notice and comment rulemaking
procedure—established by the housing Order 13563 also directs that, where requirements, unless the agency certifies
provider. relevant, feasible, and consistent with that the rule will not have a significant
While the risk of retaliation attendant regulatory objectives, and to the extent economic impact on a substantial
to reporting harassment is serious in the permitted by law, agencies are to number of small entities. The proposed
employment context, such risk is even identify and consider regulatory rule establishes standards for evaluating
graver in the residential context. approaches that reduce burdens and claims of harassment and liability under
Victims of harassment by a landlord’s maintain flexibility and freedom of the Fair Housing Act. The scope of the
agent not only risk eviction, a choice for the public. This rule was rule is procedural, and the regulatory
particularly severe consequence for low- determined to be a ‘‘significant changes do not establish any substantive
income tenants whose affordable regulatory action’’ as defined in section regulatory burdens on small entities.
housing options are limited, they may 3(f) of Executive Order (although not an Accordingly, the undersigned certifies
also suffer physical harm to themselves economically significant regulatory that this rule will not have a significant
or their family members in retaliation action, as provided under section 3(f)(1) economic impact on a substantial
for filing a grievance. In the most of the Executive Order). number of small entities.
egregious circumstances, an agent may This rule establishes uniform
abuse the power conferred by his agency standards for use in investigations and Unfunded Mandates Reform Act
relationship to gain access to a victim’s processing cases involving harassment
home and inflict violence upon the and liability under the Fair Housing Title II of the Unfunded Mandates
victim after the victim has reported Act. As has been discussed in the Reform Act of 1995 (2 U.S.C. 1531–
harassment. In HUD’s view, a victim of preamble to this rule, in establishing 1538) (UMRA) establishes requirements
hostile environment harassment should such standards, HUD is exercising its for federal agencies to assess the effects
not be forced to choose between the risk rulemaking authority to bring of their regulatory actions on state,
of retaliation and the risk of losing his uniformity, clarity, and certainty to an local, and tribal governments and the
or her right to hold a housing provider area of legal practice. private sector. This proposed rule does
liable for the acts of its agents. The docket file for this rule is not impose any federal mandates on any
available for public inspection between state, local, or tribal governments or the
While Title VII and the Fair Housing
the hours of 8 a.m. and 5 p.m. weekdays private sector within the meaning of
Act share a common goal of eliminating
in the Regulations Division, Office of UMRA.
discrimination in their respective
spheres, the mechanisms for doing so General Counsel, Department of Executive Order 13132, Federalism
are fundamentally different. In addition, Housing and Urban Development, Room
as discussed above, one’s workplace and 10276, 451 7th Street SW., Washington, Executive Order 13132 (entitled
one’s home are very different places, DC 20410–0500. Due to security ‘‘Federalism’’) prohibits an agency from
with the latter having substantial measures at the HUD Headquarters publishing any rule that has federalism
expectations of privacy, security and building, please schedule an implications if the rule either (1)
safety. Individuals have a justified appointment to review the docket file by imposes substantial, direct compliance
expectation of freedom from unwelcome calling the Regulations Division at 202– costs on state and local governments,
conduct in the home.57 The home is ‘‘a 708–3055 (this is not a toll-free and is not required by statute, or (2)
place where [one is] entitled to feel safe number). Persons with hearing or preempts state law, unless the agency
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
and secure and need not flee.’’ 58 To speech impairments may access the meets the consultation and funding
adopt Title VII’s affirmative defense above telephone number via TTY by requirements of section 6 of the
under the Fair Housing Act would be to calling the toll-free Federal Relay Executive Order. This rule would not
ignore these important rights and the Service at 800–877–8339. have federalism implications and would
distinction between the home and not impose substantial direct
Environmental Impact compliance costs on state and local
57 Frisby,
at 484. This rule does not direct, provide for governments or preempt state law
58 Quigleyv. Winter, 598 F. 3d 938, 947 (8th Cir. assistance or loan and mortgage within the meaning of the Executive
2010) (sexual harassment violation of Act). insurance for, or otherwise govern or Order.
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![Federal Register / Vol. 80, No. 203 / Wednesday, October 21, 2015 / Proposed Rules 63731
financing of a dwelling on a person’s (B) Evidence of psychological or information you consider to be
response to harassment because of race, physical harm is relevant in Confidential Business Information (CBI)
color, religion, sex, handicap, familial determining whether a hostile or other information whose disclosure is
status, or national origin. environment was created, as well as the restricted by statute.
■ 10. Add subpart H, consisting of amount of damages to which an • Mail: OPP Docket, Environmental
§ 100.600, to read as follows: aggrieved person may be entitled. Protection Agency Docket Center (EPA/
However, neither psychological nor DC), (28221T), 1200 Pennsylvania Ave.
Subpart H— Quid Pro Quo and Hostile physical harm must be demonstrated to NW., Washington, DC 20460–0001.
Environment Harassment prove that a hostile environment exists. • Hand Delivery: To make special
(ii) Title VII affirmative defense. The arrangements for hand delivery or
§ 100.600 Quid pro quo and hostile delivery of boxed information, please
affirmative defense to an employer’s
environment harassment.
vicarious liability for hostile follow the instructions at http://
(a) General. Quid pro quo and hostile environment harassment by a supervisor www.epa.gov/dockets/contacts.html.
environment harassment because of under Title VII of the Civil Rights Act Additional instructions on
race, color, religion, sex, familial status, of 1964 does not apply to cases brought commenting or visiting the docket,
national origin or handicap may violate pursuant to the Fair Housing Act. along with more information about
sections 804, 805, 806 or 818 of the Act, (b) Type of conduct. Harassment can dockets generally is available at http://
depending on the conduct. The same be written, verbal, or other conduct, and www.epa.gov/dockets.
conduct may violate one or more of does not require physical contact. FOR FURTHER INFORMATION CONTACT:
these provisions. (c) Number of incidents. A single Susan Lewis, Registration Division (RD)
(1) Quid pro quo harassment. Quid incident of harassment because of race, (7505P), main telephone number: (703)
pro quo harassment refers to an color, religion, sex, familial status, 305–7090; email address:
unwelcome request or demand to national origin, or handicap may RDFRNotices@epa.gov. The mailing
engage in conduct where submission to constitute a discriminatory housing address for each contact person is:
the request or demand, either explicitly practice, where the incident is severe, or Office of Pesticide Programs,
or implicitly, is made a condition evidences a quid pro quo. Environmental Protection Agency, 1200
related to: The sale, rental or availability Dated: September 28, 2015. Pennsylvania Ave. NW., Washington,
of a dwelling; the terms, conditions, or Gustavo Velasquez, DC 20460–0001. As part of the mailing
privileges of the sale or rental, or the address, include the contact person’s
Assistant Secretary for Fair Housing and
provision of services or facilities in Equal Opportunity. name, division, and mail code. The
connection therewith; or the division to contact is listed at the end
[FR Doc. 2015–26587 Filed 10–20–15; 8:45 am]
availability, terms, or conditions of a of each pesticide petition summary.
BILLING CODE 4210–67–P
residential real estate-related SUPPLEMENTARY INFORMATION:
transaction. An unwelcome request or
demand may constitute quid pro quo I. General Information
harassment even if a person acquiesces ENVIRONMENTAL PROTECTION
AGENCY A. Does this action apply to me?
in the unwelcome request or demand.
(2) Hostile environment harassment. You may be potentially affected by
40 CFR Part 180 this action if you are an agricultural
Hostile environment harassment refers
to unwelcome conduct that is [EPA–HQ–OPP–2015–0032; FRL–9935–29] producer, food manufacturer, or
sufficiently severe or pervasive as to pesticide manufacturer. The following
interfere with: the availability, sale, Receipt of Several Pesticide Petitions list of North American Industrial
rental, or use or enjoyment of a Filed for Residues of Pesticide Classification System (NAICS) codes is
dwelling; the terms, conditions, or Chemicals in or on Various not intended to be exhaustive, but rather
privileges of the sale or rental, or the Commodities provides a guide to help readers
provision or enjoyment of services or determine whether this document
AGENCY: Environmental Protection applies to them. Potentially affected
facilities in connection therewith; or the Agency (EPA).
availability, terms, or conditions of a entities may include:
ACTION: Notice of filing of petitions and • Crop production (NAICS code 111).
residential real estate-related request for comment. • Animal production (NAICS code
transaction. Hostile environment
112).
harassment does not require a change in SUMMARY: This document announces the
• Food manufacturing (NAICS code
the economic benefits, terms, or Agency’s receipt of several initial filings
311).
conditions of the dwelling or housing- of pesticide petitions requesting the • Pesticide manufacturing (NAICS
related services or facilities, or of the establishment or modification of code 32532).
residential real-estate transaction. regulations for residues of pesticide If you have any questions regarding
(i) Totality of the circumstances. chemicals in or on various commodities. the applicability of this action to a
Whether hostile environment DATES: Comments must be received on particular entity, consult the person
harassment exists depends upon the or before November 20, 2015. listed under FOR FURTHER INFORMATION
totality of the circumstances. ADDRESSES: Submit your comments, CONTACT for the division listed at the
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
(A) Factors to be considered to identified by docket identification (ID) end of the pesticide petition summary of
determine whether hostile environment number and the pesticide petition interest.
harassment exists include, but are not number (PP) of interest as shown in the
limited to, the nature of the conduct, the body of this document, by one of the B. What should I consider as I prepare
context in which the incident(s) following methods: my comments for EPA?
occurred, the severity, scope, frequency, • Federal eRulemaking Portal: http:// 1. Submitting CBI. Do not submit this
duration, and location of the conduct, www.regulations.gov. Follow the online information to EPA through
and the relationships of the persons instructions for submitting comments. regulations.gov or email. Clearly mark
involved. Do not submit electronically any the part or all of the information that
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Document Created: 2018-02-27 08:54:01
Document Modified: 2018-02-27 08:54:01
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Comment Due Date: December 21, 2015. | |
| Contact | Lynn Grosso, Acting Deputy Assistant Secretary for Enforcement and Programs, Office of Fair Housing and Equal Opportunity, Department of Housing and Urban Development, 451 Seventh Street SW., Room 5204, Washington, DC 20410-2000; telephone number 202-402-5361 (this is not a toll-free number). Persons with hearing or speech impairments may contact this number via TTY by calling the toll-free Federal Relay Service at 800-877-8339. | |
| FR Citation | 80 FR 63720 | |
| RIN Number | 2529-AA94 | |
| CFR Associated | Aged; Fair Housing; Individuals with Disabilities; Mortgages and Reporting and Recordkeeping Requirements |
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