With a shifting atmosphere providing more comfort for women to come forward with sexual harassment complaints, housing cooperatives must be alert to having a policy covering this area. This policy should be developed in anticipation that it is more probable today that such a complaint will be made in the cooperative housing setting. The housing cooperative may be charged on grounds that it provided the environment which permitted or encouraged the harassment upon which the complainant is based. It is important that the housing cooperative has a policy that not only prohibits such conduct but also has a mechanism that would seek to deter it.
The relationships or lack thereof happening on cooperative owned property or with cooperative employees, even employees of others, or guests of members out of which such complaints can arise are numerous. The cooperative’s authority extends to its membership, employees, contracted relationships and members’ guests. The author has drafted a policy that seeks to cover all of these possible relationships using the housing cooperative’s own documents, its contracts and state law. The policy seeks to avoid the cooperative from becoming a fact finder in the first instance. It merely requires the cooperative upon receipt of the complaint to notify the offender or the offender’s employer of the allegation. The cooperative merely notifies the offender that IF such conduct has occurred, STOP it or there could be consequences. The consequences would be for a board to hold a hearing that would determine guilt or innocence. If the board determined guilt, the board would be mandated to take such action as it deems appropriate to remedy the situation. Remedy could be as minimum as reprimand, a public censure, a probation period suspending the member’s membership rights without occupancy termination or termination of a member’s membership and occupancy, warning or termination of an employee, a warning or termination of a contract if it is a contractor’s employee or a warning or a bar notice, if appropriate under state law, if it is a member’s guest.
Cooperators and their boards should be aware that there is criticism that the policy set out below is excessive based on the following arguments. The law prohibits sexual harassment in employment, housing, education and places of public accommodation, etc, and does not prohibit harassment in neighbor-to-neighbor relationships and undertaking to affect contractual relations is going too far. It is also suggested that the following policy risks boards becoming abusive. The criticism also points out that the policy does not define sexual harassment, leaving its definition to each individual board; and that no one has a right to be shielded from insensitive words, concepts or facts. Reference was also made to comments when the U.S. Department of Housing and Urban Development (HUD) published its regulation concerning overall harassment of one member by another. HUD clarified it intended the regulation to be invoked in incidents that were “severe and pervasive and not simple incivility, disputes, or sharp differences over opinions and ideas concerning cooperative matters.” The “severe and pervasive” reference may well be the guideline used by boards in choosing the remedy in the event of repeated incident(s) after the first notice is given.
The criticism of the suggested policy further suggests that it should be limited to cooperative employees only. If boards should agree with the approach, the following policy can be changed to eliminate references to members, contractors’ employees and guests or any one of them. The cooperative’s attorney or an attorney licensed in the state a cooperative is located should certainly be consulted in any event.
This article proposes that housing cooperatives can propound rules and regulations that forbid conduct that is legal under applicable laws and ordinances. Boards of directors are charged with the responsibility for behavior on the cooperative’s property by being given the power to terminate memberships for cause. This involves conduct violations of the proprietary lease-occupancy agreement and rules and regulations. Boards are now required to exercise their judgments with respect to violations of the same, e.g., interference with others’ peaceful enjoyment of premises, which can include causing smoke infiltration and noise, as well as parking in the wrong parking space or conducting a business in a cooperative dwelling unit and even the non-member live-in boy or girlfriend. Contractors’ employees can be governed by negotiated contracts. And statutory authority exists if state law gives property owners the authority to bar offensive guests.
Defining sexual harassment is like defining beauty. It is in the eyes of the beholder or recipient. Sexual harassment is whatever is offensive to the offended. The proposed policy does not initially bar it, but merely says to the offender don’t do it, it is offensive to your intended recipient. Only if you persist on our property will action be taken. So even if it is merely the suggestive word, or playful touch or offensive sexual word, the offended should be respected, male or female. The F word is a common word in our everyday experiences, but it is offensive to many. This author believes a board should have the power to say don’t use it to “so and so” if it is offensive to him or her. The extent of using the authorized authority will depend on each particular cooperative community and its member elected board. This is the beauty of the housing cooperative.
It should also be remembered that in enforcing rules and regulations that may end up depriving a member of a property right (outside possibly suits to enforce payment of monthly charges), the cooperative’s policies should afford the accused due process, i.e., notice of a board of director’s hearing, a fairly conducted hearing including examination of the complainant by the offender and the right to an attorney with a decision based upon the evidence given at the hearing. This is also important if the cooperative expects to be able to rely on the business judgment rule in court.
With this introduction, on the right is this author’s suggested model anti-harassment policy for cooperative board’s and/or membership’s consideration.
Anti-Harassment Policy of XYZ Housing Cooperative
XYZ Housing Cooperative Board of Directors adopts the following policy resolution (rules and regulations):
Sexual harassment of any person by another person is prohibited on cooperative owned property.
Any person sexually harassed on cooperative property shall have the right to file a written statement with the cooperative’s management office specifying the following:
- An understandable description of act or acts of sexual harassment;
- Date or dates of the act or acts;
- The specific location of the act or acts;
- Identification of the person(s) who perpetrated the act or acts;
- Whether or not the person subjected to such act or acts told the offender “Stop that,” “No,” or words to that effect, and, if words to that effect, what word(s) were used.
Within five business days of the receipt of such statement, the manager shall inform the offender if the offender is a cooperative member or cooperative employee that if such events occurred that he or she must cease and desist immediately. If not, a hearing will be held by the board of directors to determine what remedial action, if any, shall be taken by the cooperative. If the offender is an employee or owner of an entity contracted by the cooperative, then to the supervisor of the offender requesting the removal of the offender from the property. If a guest of a member, then to the guest, if address is known, and to the member for member’s information.
Upon holding such a hearing, the board shall vote to have the cooperative take such action as it deems appropriate to remedy the situation, including terminating the membership or employment of the offender. In the event a contractor’s employee is not removed from the property, including termination of the contract with the offender’s employer or entity, this policy’s provisions as applicable to contracted entities shall be contained in the contract executed by the cooperative.
(The following in states where a landlord’s barring of a non-member, if permitted):
If a guest, issue a bar notice as to the guest shall be issued and served on the guest when possible and the member for member’s information.
Reprisal against the person providing the statement is strictly prohibited. The identity of the person providing the statement need not be disclosed in the cease and desist notice. The identity of the person providing the statement will need to be disclosed in the notice of hearing so provided.
Any reprisal complaint shall be handled according to the same procedure set out above for the act(s) of harassment.