Mcle Self-study Article: Recognition of Hostile Housing Environment Claims Under the Federal Fair Housing Act and the California Fair Employment and Housing Act

• Publication year: 2015
• Author: By Jethro S. Busch, Robert Salinas, and Anna Liu

MCLE Self-Study Article: Recognition of Hostile Housing Environment Claims Under the Federal Fair Housing Act and the California Fair Employment and Housing Act

(Check the end of this article for information on how to access 1.0 self-study credits.)

By Jethro S. Busch, Robert Salinas, and Anna Liu

©2015 All Rights Reserved.

I. INTRODUCTION

In 1986, the United States Supreme Court held that a plaintiff can establish a violation of Title VII of the Civil Rights Act of 1964 by proving that discrimination based on sex created a hostile or abusive working environment.¹ Since then, courts have gradually come to recognize a similar concept, often referred to as "hostile housing environment," where a landlord creates (or simply tolerates) a housing environment in which a tenant's right to enjoy and enforce a rental agreement is violated by harassment, discrimination, or both on the basis of gender, race, or any other actionable cause.²

Situations constituting an actionable "hostile housing environment" can take many forms, including such classic quid pro quos as seeking sexual favors in exchange for omitting a rent increase,³ or seeking sex in exchange for foregoing a security deposit.⁴ Hostile housing environment claims can also arise from more subtle and indirect forms of discrimination, such as when employees, managers, and owners of an apartment complex tolerate racist acts by one tenant against a neighboring tenant.⁵

The California Fair Employment and Housing Act ("FEHA") prohibits sexual harassment as a form of sex discrimination in the housing context.⁶ The FEHA provides, in relevant part:

It shall be unlawful:

(a) For the owner of any housing accommodation to discriminate against or harass any person because of the race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information of that person.
. . . .
(g) For any person to aid, abet, incite, compel, or coerce the doing of any of the acts or practices declared unlawful in this section, or to attempt to do so.⁷

In addition, the Legislature provides as follows with respect to interpreting the FEHA:

Nothing in this part shall be construed to afford to the classes protected under this part, fewer rights or remedies than the federal Fair Housing Amendments Act of 1988 and its implementing regulations, or state law relating to fair employment and housing as it existed prior to the effective date of this section. Any state law that purports to require or permit any action that would be an unlawful practice under this part shall to that extent be invalid. This part may be construed to afford greater rights and remedies to an aggrieved person than those afforded by federal law and other state laws.⁸

The Legislature further provides:

The provisions of this part shall be construed liberally for the accomplishment of the purposes of this part. Nothing contained in this part shall be deemed to repeal any of the provisions of the Civil Rights Law or of any other law of this state relating to discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, or sexual orientation, unless those provisions provide less protection to the enumerated classes of persons covered under this part.⁹

For these reasons, it is entirely consistent with the broad remedial goals of the FEHA for the courts to hold that the FEHA authorizes discrimination claims arising out of a hostile housing environment.¹⁰

For the same reasons, and because California has long recognized that the quiet enjoyment covenant requires a landlord to intervene when one tenant is interfering with the quiet enjoyment rights of a neighbor,¹¹ it is logical for California courts to follow federal precedents, which have recognized hostile housing environment claims arising out of a landlord's tolerance of one tenant engaging in racial or sexual harassment of another tenant.¹²

II. RECOGNITION OF "HOSTILE HOUSING ENVIRONMENT" CLAIMS UNDER THE FEDERAL FAIR HOUSING ACT ("FHA")

The FHA makes it unlawful to "discriminate against a person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provisions of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin."¹³

While the statute does not expressly enumerate harassment as a form of discrimination, federal courts have held that sexual harassment is a type of actionable housing discrimination. As one court explained in the course of recognizing the hostile housing environment cause of action:

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In Honce v. Vigil, the Court of Appeals flatly stated, "Harassment based on sex is a form of discrimination. We have previously recognized two distinct categories of sexual harassment: 'quid pro quo' harassment and hostile work environment (or housing environment) harassment."
In DiCenso v. Cisneros, the court summarized the law in this area: "Like the Tenth Circuit, we recognize a hostile housing environment cause of action, and begin our analysis with the more familiar Title VII standard. For sexual harassment to be actionable in the Title VII context, it must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. 'Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII's purview.' Applied to the housing context, a claim is actionable 'when the offensive behavior unreasonably interferes with use and enjoyment of the premises.' Whether an environment is 'hostile' or 'abusive' can be determined only by looking at all the circumstances, and factors 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."¹⁴

Federal courts have dealt with cases involving claims of hostile environment discrimination in the employment context far more frequently than claims in the housing context.¹⁵

In DiCenso, a female tenant filed suit against her male landlord for sex discrimination alleging her landlord harassed her by offering to exchange sex for rent while simultaneously caressing the tenant's back and arm and engaging in other forms of harassment.¹⁶ The Seventh Circuit addressed the issue of whether this single instance of unwelcome conduct created a hostile environment and analyzed the claim under the Title VII standard. Title VII provides a cause of action for harassment that creates a hostile work environment.¹⁷ The claim is actionable "when the offensive behavior unreasonably interferes with the use and enjoyment of the premises."¹⁸ The DiCenso court ultimately found that under the totality of the circumstances, the landlord's conduct alone was not sufficiently egregious to create an objectively hostile housing environment.¹⁹ Irrespective of the court's ruling, this case provides much needed guidance as to what behavior may be actionable when applying the Title VII standard, including factual examples of intolerable conduct.

Similarly, the hostile living environment cause of action also covers tenant-on-tenant harassment, which, under certain circumstances, violates the FHA. In Fahnbulleh v. GFZ Realty,²⁰ the plaintiff worked for the defendant's apartments but also made a harassment claim as a tenant because she lived at the complex and was harassed by her neighbor with emails, inappropriate propositions, and having her path blocked.²¹ The plaintiff complained to management on several different occasions and each time management informed plaintiff they could not do anything about it. The Fahnbulleh court looked to federal employment law, Title VII, which recognizes an employer's duty to protect employees from harassment by non-employees under their "employ" (i.e., non-employees could be customers or suppliers).²² The Fahnbulleh opinion relied upon Williams v. Poretsky Management, Inc., which outlined four factors for holding a landlord liable for hostile housing environment harassment. A landlord is liable when: "(1) the subject conduct was unwelcome; (2) it was based on the sex of the plaintiff; (3) it was sufficiently severe...