With discrimination claims on the rise and the possible expansion of protected classes (i.e., sexual orientation or transgender status) from a recent United States Supreme Court opinion in Bostock v. Clayton Cty, Georgia, Nos. 17-1617 et. al., 590 U.S. _ , (more) 140 S. Ct. 1731 (2020), in which the court held that under Title VII, it is unlawful discrimination for employers “to fail or refuse to hire, or to discharge any individual, or otherwise discriminate against any individual” because of their sexual orientation or transgender status, there is never a better time for housing cooperatives to refresh their knowledge of fair housing and employment issues. The law pertaining to fair housing, discrimination, and sexual harassment claims are ever-evolving and a complex field, so knowledge of key factors and best practices will put cooperatives in a better position to avoid unwarranted discrimination lawsuits. First, a recap of some fundamental laws, concepts, and illegal conduct.
The Fair Housing Act and the Protected Classes
The Fair Housing Act makes it unlawful for a housing provider to discriminate on the basis of race, color, religion, sex, national origin, familial status or handicap (42 U.S.C. 3601 et seq). These groups, or categories, are known as the “protected classes.” With the recent United States Supreme Court’s decision in Bostock, supra, ruling that one’s sexual orientation and transgender status falls within the meaning of “sex” for purposes as a protected class although the case involved an employment Title VII discrimination case because the Fair Housing Act prohibits discrimination on the basis of sex, it is likely that the court’s conclusions in Bostock may be equally applied to other federal statutes’ meanings of this term and protected classes. Within the more pragmatic application and concern for housing cooperatives, the Fair Housing Act provides a detailed list of prohibited and discriminatory conduct. The specific language, found at 42 U.S.C. 3604, is summarized by the following:
- In the sale and rental of housing, it is illegal to discriminate because of race, color, religion, sex, disability, familial status or national origin in the following ways:
- Refuse to rent or sell housing;
- Refuse to negotiate for housing;
- Make housing unavailable;
- Set different terms, conditions or privileges for the sale or rental of a dwelling;
- Provide a person different housing services or facilities;
- Falsely deny that housing is available for inspection, sale or rents;
- Make, print or publish any notice, statement or advertisement with respect to the sale or rental of a dwelling that indicates any preference, limitation or discrimination;
- Impose different sale prices or rental charges for the sale or rental of a dwelling;
- Use different qualification criteria or applications, or sale or rental standards, procedures, such as income standards, application requirements, application fees, credit history analyses or other requirements;
- Evict a tenant, member or guest;
- Harass a person. It is illegal under the Fair Housing Act to harass a person because of their race, color, religion, sex, disability, familial status or national origin. This includes sexual harassment;
- Fail or delay performance of repairs;
- Limit privileges, services or facilities;
- Discourage the purchase or rental of a dwelling;
- Blockbusting; and
- Deny access to or membership in any multiple listing service or real estate brokers’ organization.
n addition to these types of prohibited discriminatory conduct, the Fair Housing Act also requires housing providers to make reasonable accommodations to housing cooperative members and occupants to allow for reasonable modifications that may be necessary to allow a person with a disability to enjoy their housing. See Section 504 of the Fair Housing Act; 42 U.S.C. 3604(f)(3)(A) and (B). Lastly, it is important to know that discrimination also includes the threatening, coercion, intimidation or interference with anyone exercising their right or assisting another person exercising a right protected by the Fair Housing Act, including the filing of a fair housing complaint.
The Takeaway on Fair Housing for Cooperatives
Housing cooperatives should have internal policies and procedures, including training materials for incoming staff
that educate and remind staff of prohibited and discriminatory conduct in violation of the Fair Housing Act. These policies and internal guidelines, while not be foolproof, nor entirely insulating a housing cooperative from facing Fair Housing Act complaints should provide a basis and standard of conduct for the housing cooperative, its board of directors, committees, office employees and staff to avoid falling in situations and legal pitfalls that may cost the cooperative monetary and punitive damages.
Sexual Harassment and Safe Interactions
While the Fair Housing Act prohibits discrimination based on the basis of one’s sex, so do other federal laws such as Section 109 of the Housing and Community Development Act of 1974, Title IX of Education Amendments of 1972 and Title VII of the Civil Rights Act, which also prohibit sexual harassment and sexual discrimination. Sexual harassment claims typically arise in one of two main types of claims. First, are “quid pro quo” sexual harassment claims. In the context of fair housing, “quid pro quo sexual harassment” is best described as situations where the housing provider or staff requires someone to submit to unwelcoming requests to engage in sexual conduct in order to obtain or maintain housing or housing-related services. Examples include, but are not limited to, situations where a staff member says that an applicant will not be reviewed or approved unless they succumb to sexual acts; threatening to evict or evicting a person for refusing to perform sex acts; and/or refusing to perform repairs unless the member or resident performs sex acts. Sex acts include a variety of things from sexual intercourse, the transmission of sexual content, photographs or videos (i.e. sending profane or pornographic pictures, text messages, emails or other content), the uninvited touching or groping, making sexually explicit comments or remarks, catcalls, ogling or cornering someone. Inappropriate or sexually-content laden jokes can also be considered forms of sexual harassment.
The second type of sexual harassment claims include what is known as a “hostile environment” or “hostile work environment.” This type of sexual harassment deals with the workplace environment. However, in the context of providing housing to others, such instances may include the following:
- Subjecting someone to severe or pervasive unwelcome touching, kissing, or groping. This may also include more subtle acts such as brushing up aside someone, breathing on someone, or physically blocking someone’s movement;
- Making lewd comments about a person’s body, looks, or appearance; and
- Sending severe or pervasive unwelcome text messages, photos, or content as described above
The list of types and examples of acts, conduct, statements or cues that fall within the scope of sexual harassment are too long to list in a brief article. However, the important takeaway the reader should know is that sexual harassment does not merely consist of overt and grotesque acts. Sexual harassment can also be considered in many subtle ways, through actions or conduct, or even omissions, body language or other subtle gestures. With the United States Supreme Court’s decision in Bostock, supra, it is ever more so important to be aware that sexual orientation and transgender status are considered to be a protected class within the meaning of “sex” in a Title VI employment case. Best practices and caution should be equally applied to housing. Nevertheless, this case shows additional layers and types of conduct, statements, acts or suggestions pertaining to one’s sexual orientation or transgender status may also be considered sexual harassment under fair housing.
Housing cooperatives should at a minimum require a basic level of education and training pertaining to sexual harassment both in the work environment and in the fair housing realm. These trainings and programs should be made available for the cooperative’s directors, officers, employees and staff. Given that the law is fluid and constantly changing with the times, continued education in this area is highly recommended and necessary. Further education is an obvious benefit to all. However, putting action to these best practices and the law may better insulate the housing cooperative from legal action and will also provide for a safer work and housing environment within the cooperative.
For more on sexual harassment in housing cooperatives, see An Anti-Harassment Policy-A Model Policy-is Needed, written by Herb Fisher and published in the summer 2018 issue of the Cooperative Housing Quarterly.
This article was featured in CHQ winter 2020 issue. Click here to read the PDF newsletter.
Matthew T. Nicols is an associate attorney at the Pentiuk, Couvreur & Kobiljak, P.C., with oﬃces in Wyandotte, Michigan and Chicago, Illinois. Nicols focuses his practice primarily in areas of cooperative housing law, and other community and condominium association law.
Please note this content is provided to our readers for educational purposes but it is not intended and should not be regarded as legal advice. Readers are encouraged to consult with competent legal counsel for personalized guidance.