Being Persuaded to Sleep With Someone in Order to Have a Place to Sleep: the Eleventh Circuit's Analysis of Sexual Harassment Claims Under the Fair Housing Act

• Publication year: 2022

Being Persuaded to Sleep with Someone in Order to Have a Place to Sleep: The Eleventh Circuit's Analysis of Sexual Harassment Claims Under the Fair Housing Act

Stella Preston

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Being Persuaded to Sleep with Someone in Order to Have a Place to Sleep: The Eleventh Circuit's Analysis of Sexual Harassment Claims Under the Fair Housing Act

Stella Preston^*

I. Introduction

One of the fundamental ideals the United States was built upon is that its citizens must have their rights and freedoms protected. Historically, however, there have been numerous groups of individuals who have had their civil rights infringed upon, and what is worse, not protected by the legal and political institutions of the country. What the United States is experiencing now is an increase in the widespread fight for those who have historically been discriminated against in one way or another. Citizens these days seem less apt to sit back and silently let injustices go on without any repercussions. In particular, one social fight of importance is the fight for those who have been victims of sexual assault or sexual misconduct.¹

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All around the country, more and more men and women are coming forward about their experiences as victims of sexual assault in hopes that it sparks real change. In fact, according to a poll conducted by The Associated Press-NORC Center for Public Affairs research, about half of Americans (54%) say they are now more likely to speak out if they become a victim of sexual misconduct or assault.² Specifically, within the housing industry, instances of sexual misconduct have garnered heightened attention and have warranted fundamental changes to be made.³

Fox v. Gaines,⁴ decided by the United States Court of Appeals for the Eleventh Circuit, highlights the importance of protecting individuals from sexual assault or sexual harassment in any aspect of life. The holding in Fox allows men and women to seek redress for quid pro quo and hostile housing environment sexual harassment they may encounter in the housing context.⁵ By using a similar interpretation to that of Title VII of the Civil Rights Act of 1968,⁶ the court held, as a matter of first impression, that sexual harassment qualifies as sex discrimination under the federal Fair Housing Act (FHA),⁷ joining four of its sister circuits around the United States.⁸

II. Factual Background

While searching for a new apartment for her and her child, Ms. Fox visited the Rose Bush Apartments in Jupiter, Florida, owned by Ms. Lucille Gaines and managed by Mr. Dana Gaines.⁹ From the time that she applied for the unit, Mr. Gaines made Ms. Fox feel uncomfortable and unsettled, making inappropriate comments about her looks. Mr. Gaines even went so far as to barter with Ms. Fox for a kiss.¹⁰ He told

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her, "[H]e had a list of people interested in the unit but would 'keep it available for her if she would give him a kiss.'"¹¹ Although Mr. Gaines's actions and comments made Ms. Fox feel uneasy about renting the apartment, she knew she needed it. After signing the lease and getting the keys, Mr. Gaines reminded Ms. Fox about the kiss; she felt trapped and as if she had no other choice, so she eventually kissed him.¹²

After paying the security deposit, as well as first and last months' rent, Ms. Fox had a hard time making the full monthly rent payments for her apartment. In response to this, Mr. Gaines proposed helping Ms. Fox with her rent in exchange for her providing him with sexual favors. Ms. Fox ultimately gave in to Mr. Gaines's offer, and their arrangement went on for about three and a half years.¹³ Mr. Gaines lowered Ms. Fox's rent as long as she gave him sexual favors.¹⁴

In addition to their arrangement, Mr. Gaines started monitoring Ms. Fox and questioning her whereabouts, began demanding Ms. Fox not invite men to her apartment, and installed surveillance cameras facing in the direction of her unit so he could track her daily activities.¹⁵ Ms. Fox wanted "[T]o stop Mr. Gaines's 'controlling and harassing behavior,' [so she] ended her sexual relationship with him."¹⁶ But in response, Mr. Gaines began threatening Ms. Fox with eviction and giving her fraudulent notices of violations.¹⁷ The next week, Ms. Fox paid the same reduced rent payment she had been making for the past three and a half years and told Mr. Gaines that she would pay the rest within the next eight days. However, even though Ms. Fox made good on her promise and paid the remainder eight days later, Mr. Gaines told her that he had to file an eviction proceeding on her because she did not pay it within seven days. Mr. Gaines tried serving Ms. Fox with a three-day notice to vacate the apartment and, even after mutually agreeing that Ms. Fox would move out by midnight on the last day of the month, he

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called the police during the last day of the month and tried having Ms. Fox arrested for trespassing.¹⁸

After being forced to vacate her apartment, Ms. Fox sued both Dana and Lucille Gaines, "arguing that Mr. Gaines's sexual harassment of her violated the FHA's and Florida FHA's prohibitions on sex discrimination."¹⁹ The case at hand was first heard in the United States District Court for the Southern District of Florida, but both Mr. and Ms. Gaines's motions to dismiss were granted.²⁰ The court noted that, while "Ms. Fox had 'sufficiently pled "severe, pervasive harassment"' that was 'well beyond what was required to withstand a motion to dismiss,'"²¹ her sexual harassment claim ultimately was not actionable under the FHA. This decision was guided by the court's conclusion that the plain language of the statute did not allow for a claim of sexual harassment.²²

Ms. Fox appealed the dismissal of her claims. The appeal brought this question of first impression to the United States Court of Appeals for the Eleventh Circuit, finally allowing the court to address and rule on the issue.²³ The Eleventh Circuit held that sexual harassment "is actionable under the FHA, provided the plaintiff demonstrates that she would not have been harassed but for her sex."²⁴ Ultimately, the dismissal was vacated, and the case was remanded to the district court for further proceedings.²⁵

III. Legal Background

A. The Fair Housing Act of 1968

The Fair Housing Act is the common name given to Title VIII of the Civil Rights Act of 1968.²⁶ The main purpose of this federal statute is to prohibit discrimination in the sale and rental of housing, as well as other housing-related transactions, based on race, color, national origin, religion, sex, familial status, and disability.²⁷ In relation to sex

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discrimination, some of these prohibitions include, but are not limited to, the refusal to rent or sell, or negotiate to rent or sell, because of sex; discriminating in the terms, conditions, or privileges of a sale or rental because of sex; and showing any preference of sex in the advertising of a sale or rental.²⁸ The FHA was passed and enacted by Congress in the midst of the civil rights movement, with the hope of providing fair housing throughout the country for all races and other historically disadvantaged groups, including women.²⁹

Since its enactment, causes of actions under the FHA have been raised many times by individuals looking to recover for the unfair sales or rental practices of landlords. However, it took some time for individuals to bring cases under the FHA for discrimination stemming from sexual harassment, or from creating a hostile or offensive sexual environment. The two main types of sexual harassment cases that have since been brought under the FHA are quid pro quo sexual harassment and the creation of a hostile housing environment.³⁰ Quid pro quo sexual harassment occurs when one offers or provides the other some kind of benefit in exchange for sexual favors. Hostile environment sexual harassment occurs when the sexual harassment is so pervasive and severe that it changes the conditions of the housing arrangement.³¹

One of the first cases to discuss the issue of sexual harassment in the housing environment was Shellhammer v. Lewallen,³² which, although the plaintiffs did not carry their burden in pleading their claim for it, nonetheless paved the way for a claim of sexual harassment being actionable under the FHA if it creates an offensive environment for the renter.³³ The plaintiffs in this case, a husband and wife who were renters of an apartment owned by the defendants, presented two different legal claims: (1) that the landlord's sexual harassment of the wife created an offensive environment for their tenancy; and (2) that their landlords made their tenancy subject to sexual consideration.³⁴ The United States District Court for the Northern District of Ohio found that the plaintiffs had factually proven the second claim (the plaintiffs were evicted shortly after the wife refused sexual advances

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from the landlord), but did not meet their burden of proof for the first claim. They found that the wife:

[P]oints to two requests during the three to four months of her tenancy. This does not amount to the pervasive and persistent conduct which is a predicate to finding that the sexual harassment created a burdensome situation which caused the tenancy to be significantly less desirable than it would have been had the harassment not occurred.³⁵

So, while the plaintiffs in that case did not prevail on their claim that the sexual harassment by their landlord created a hostile or offensive housing environment, the court established the possibility of this claim being adjudicated in the future.

B. Title VII of the Civil Rights Act of 1968

In order to understand how the FHA's provision prohibiting sex discrimination has been translated to prohibiting sexual harassment, it is important to understand sexual harassment claims under Title VII of the Civil Rights Act of 1968 (Title VII), which prohibits, among other things, sex discrimination in the workplace. In Meritor Savings...