Sexual Harassment of Low-Income Women in Housing: Pilot Study Results.

• Author: Oliveri, Rigel C.

1. Background 600 A. Development of Sexual Harassment Doctrine 600 1. Sexual Harassment Under Title VII 600 2. Sexual Harassment and the Fair Housing Act 603 B. What We "Know" About Sexual Harassment in Housing 608 1. Official Statistics and Early Studies 609 2. Recent Studies 611 II. The Pilot Study 613 A. Purpose and Methodology 613 B. Results 615 1. Prevalence, Severity, and Type of Conduct 615 2. Characteristics of the Women 617 3. Perpetrator and Housing Characteristics 619 4. Responses and Consequences 620 III. Analysis and Implications 620 A. An Analysis of the Findings 621 1. The Conduct 621 2. Lack of Oversight 628 3. Lack of Response 629 B. Ramifications for Law and Policy 631 1. Law 631 2. Policy 635 C. Study Limitations and Areas for Future Research 638 Conclusion 639 INTRODUCTION

   This is a watershed moment for public awareness of sexual harassment. In recent months, high-profile and influential figures in media, government, and entertainment have been brought down by credible allegations that they have engaged in sexual misconduct. (1) These revelations have sparked an important national discussion about the prevalence of sexual harassment in American society and the ways in which powerful people can use their positions both to exploit their vulnerable targets and to escape the consequences of their actions.

   The conversation is a necessary starting point, but the focus on high-status workplaces overlooks other contexts in which sexual harassment occurs. This Article focuses on one overlooked, significant national problem: the sexual harassment and exploitation of low-income women by their landlords. Many published cases have dealt with the phenomenon, (2) and the Department of Justice ("DOJ") has filed many complaints against alleged harassers. (3) Good academic articles in legal and social science literature also exist that discuss the subject from a largely theoretical perspective. (4) But something crucial is missing: data. Unlike sexual harassment in the workplace, which has been exhaustively studied by academics of every stripe, there have been no reliable empirical studies about the nature and prevalence of sexual harassment in housing.

   Lack of information leads to a number of problems. Policymakers and legislators have difficulty addressing sexual harassment in housing because they do not know basic facts about it, such as how common it is, who is likely to experience or perpetrate it, and what form(s) it takes. The law that does exist, largely borrowed from the employment context, remains underdeveloped and unresponsive to the unique challenges presented by sexual harassment in housing.

   This Article and the underlying Pilot Study represent a first attempt at remedying the information gap by revealing empirical data that challenges and improves upon the assumptions in theoretical scholarship. The Pilot Study involved detailed interviews of one hundred low-income women, randomly selected from a pool of clients of the Columbia, Missouri Housing Authority. These interviews revealed a clear picture of the tenants most at risk for sexual harassment in housing, the characteristics of landlords most likely to engage in harassment, the form(s) harassment is likely to take, and how women respond when experiencing harassment.

   Part I discusses the background of this issue and begins with the law of sexual harassment as originally developed for the workplace and later grafted onto the housing context. Next, it canvasses the state of our knowledge of sexual harassment in housing, including the gaps in that knowledge that require further research and the problems created by those gaps.

   Part II presents the methodology and results of the Pilot Study, which both add to and challenge some of the prevailing assumptions about sexual harassment in housing. A surprisingly high percentage of study participants--10% of the sample--had experienced actionable sexual harassment by their landlords. All of these women were living in private rental housing at the time they were harassed; none lived in public housing, shelters, or other institutional facilities. Whether or not they were receiving a housing subsidy did not appear to increase the likelihood of harassment, although it did correlate to whether they remained in the housing after experiencing harassment. The landlords who perpetrated the harassment were all owner-operators of their rental properties; they did not work for or employ a rental management company. The harassment itself took two forms: (1) almost all of the women described being explicitly asked to provide sex in lieu of rent and (2) half of the women also reported experiencing serious (likely criminal) conduct such as home invasion, indecent exposure, and unwanted touching.

   Part III analyzes the results of the Pilot Study and draws implications for law, policy, and further research. From a legal standpoint, the results underscore the argument for treating sexual harassment in housing as an entirely different phenomenon from employment harassment. We need a new framework for analyzing these cases that recognizes the economic reality of low-income housing. From a policy perspective, the Pilot Study results reveal the consequences of the lack of regulation of the landlord-tenant relationship: a regime allowing private landlords to harass their tenants with virtual impunity. Greater oversight of landlords and more targeted resources for the most vulnerable group of female renters is necessary to address this problem. Ultimately, policy-makers must address the root cause of this problem--the serious lack of affordable housing and housing support programs in this country.

1. BACKGROUND

   Sexual harassment in housing is situated in a peculiar place both in the law and in our understanding of the phenomenon. The law of sexual harassment is relatively new, exceedingly complex, and tailored to the employment context. To the extent that sexual harassment is a topic of public discourse, it is usually the sort that occurs in the workplace. As this Part discusses, the law of sexual harassment in housing was largely borrowed from the law as developed in the employment context. This has led to an inadequate legal approach to sexual harassment in housing cases and a lack of scholarly and public attention to the problem.

   1. Development of Sexual Harassment Doctrine

      Given the sparse treatment of "sex" in the major civil rights statutes and legislative histories, courts have had to develop a framework for analyzing sexual harassment cases that relies heavily on Equal Employment Opportunity Commission ("EEOC") guidance and the facts of particular cases. This has led to confusion, complexity, and multiple doctrinal shifts.

      1. Sexual Harassment Under Title VII

         1. Establishing a Binary Framework

            The legal doctrine of sexual harassment originated in the employment context. (5) Title VII of the Civil Rights Act of 1964 ("Title VII") prohibits employment discrimination on the basis of protected classes, including sex. (6) Cases recognizing that racial and ethnic harassment in the employment setting can violate Title VII date back at least to 1971. (7)

            In 1980, EEOC issued guidelines identifying sexual harassment as a form of sex discrimination prohibited by Title VII. (8) The guidelines provide that

            [u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. (9) Two years later, the Eleventh Circuit issued an influential sexual harassment opinion in favor of the plaintiff in Henson v. City of Dundee. (10) Henson set forth a binary classification of sexual harassment claims (1) "quid pro quo" claims, where a defendant conditions job benefits on compliance with sexual demands or causes the plaintiff tangible harms if she refuses to comply with such demands and (2) "hostile environment" claims, where unwelcome sexual advances occurred but did not lead to lost employment or other economic injuries. (11)

            In 1986, the United States Supreme Court adopted the Henson framework when it addressed workplace harassment for the first time in Meritor Savings Bank v. Vinson. (12) A bank employee brought a Title VII claim against her employer, alleging that her branch manager made unwelcome sexual advances toward her and that she engaged in a lengthy sexual relationship with him out of fear of losing her job. (13) The bank argued that sexual harassment was only actionable if it affected tangible, economic aspects of the employment relationship and that harassment that "only" affected the work environment could not support a claim. (14) The Court disagreed, concluding that "a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment." (15)

            The hostile environment theory is rooted in the Title VII provision that bans discrimination in the "terms, conditions, or privileges of employment." (16) The Court held that harassment violates this provision when it is shown to be "sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.'" (17) Subsequent United States Supreme Court guidance instructed courts to determine whether an environment is sufficiently hostile or abusive by "looking at all the circumstances ... includ[ing] the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive...