WORKING 9 TO NON-STOP: THE FAIR HOUSING ACT'S SEXUAL HARASSMENT PROTECTIONS FOR DOMESTIC, AGRICULTURAL, AND OTHER LIVE-IN WORKERS.

AuthorLowell, Callen

Abstract

Live-in workers, for whom their bosses are typically also their landlords, are often trapped in sexually harassing situations that feel as though they have no practical or legal redress, especially when the worker's harasser can both fire and evict them in one fell swoop. This Note explores the novel possibility of using fair housing law, including the Fair Housing Act ("FHA") and state/local fair housing statutes, as a tool to provide legal protections to workers with employer-provided housing ("live-in workers") who experience sexual harassment or violence in the workplace. There is currently very little case law in which live-in workers have brought fair housing and employment discrimination claims simultaneously, and functionally no case law in which attorneys have brought both claims for live-in worker sexual harassment cases. This Note argues that, under existing fair housing law, many live-in workers should be eligible to bring claims under the FHA and equivalent state laws that prohibit discrimination in housing. As a result, the FHA and equivalent state claims can provide sexual harassment and assault protections for workers, including domestic workers and farmworkers, who may not receive protections under federal or state employment discrimination law. Furthermore, this Note argues that the FHA can provide supplemental or stronger protections from sexual harassment for live-in workers than traditional Title VII or employment discrimination claims. It accordingly suggests that plaintiffs facing harassment or sexual assault in live-in industries should pursue fair housing claims in addition to or in place of Title VII and employment discrimination claims, in order to achieve maximum protection and relief.

INTRODUCTION

When your landlord is your boss, and your boss is your landlord, lines between work and home life can be blurred. Live-in workers are often trapped in sexually harassing situations that feel as though they have no practical or legal redress, especially when the worker's harasser can both fire and evict them in one fell swoop.

In an interview with Money, domestic worker June Barrett outlined how, on her first day as a caregiver for an elderly client in 2014, he asked her to join him in bed. (1) The next day, he groped her. This sexual harassment and assault was not out of the norm for Barrett at work--in fact, it was a staple of many of the home care jobs that Barrett, now fifty-five, had held over the years, primarily in Miami. (2) Similarly, Etelbina Hauser, a woman who has worked as a house cleaner and home health aide for many years, reported that she:

... [H]as lost count of all the times her bosses have groped her, exposed themselves, or asked for sex. A common scenario plays out like this: She would be alone, cleaning a home, when the husband of the household would call her into his bedroom. He would be naked (or half-naked) and would suggest a sexual act or a massage. Hauser would then run out of the house and start looking for another job. (3) Hauser, who experienced such harassment at more than two dozen jobs, was prevented from asserting her rights because her employers were protected under the so-called "small employer exemption" to Title VII. (4) This provision exempts employers with fewer than fifteen employees from federal employment discrimination protections--and practically works to bar a significant number of potential sexual harassment and assault claims by live-in workers every year. (5) Because of the practical and legal barriers many live-in low-wage workers face, they rarely find justice in the courts in cases of sexual harassment at the sites which serve as both their homes and jobs.

This Note explores the possibility of using fair housing law, including the Fair Housing Act ("FHA") and state/local fair housing statutes, as a tool to provide legal protections to workers with employer-provided housing ("live-in workers") who experience sexual harassment or violence in the workplace. Workers in employer-provided housing are especially vulnerable to sexually violent workplaces because their employer often also acts as their landlord. (6) Despite this fact, there is very little case law in which live-in workers have brought fair housing and employment discrimination or harassment claims simultaneously, and functionally no case law in which attorneys have brought both claims for live-in worker sexual harassment cases. (7)

This Note argues that, under existing fair housing law, many live-in workers should be eligible to bring claims under the FHA and equivalent state laws that prohibit discrimination in housing. As a result, the FHA and equivalent state claims can provide sexual harassment and assault protections for workers, including domestic workers and farmworkers, who may not receive protections under federal or state employment discrimination law. Furthermore, this Note argues that the FHA can provide supplemental or stronger protections from sexual harassment for live-in workers than traditional Title VII or employment discrimination claims. It accordingly suggests that plaintiffs facing harassment or sexual assault in live-in industries should pursue fair housing claims in addition to or in place of Title VII and employment discrimination claims, in order to achieve maximum protection and relief.

Part I describes the extent of the problem of sexual harassment for live-in workers. It then continues by outlining the existing federal protections against sexual harassment in employment, via Title VII, and in housing, via the FHA. It concludes by briefly outlining examples of state legislative protections in housing and employment and existing efforts to expand protections for these workers on the state and national levels.

Part II analyzes how courts have applied housing law, including the FHA, to live-in workers in the past. Part II examines how case law and legislation have treated the rights of live-in farmworkers and also outlines the more limited line of cases that addresses the housing rights of other kinds of live-in workers, including domestic workers and building services employees, such as superintendents, janitors, and porters. This Part specifically outlines how courts have addressed the key questions that come up in live-in worker housing litigation, including whether workers are considered "renters," what constitutes a dwelling, and how units are counted in worker housing.

Finally, Part III proposes a possible roadmap for litigators to utilize the FHA on its own, or in addition to Title VII, to bring sexual harassment housing discrimination claims on behalf of live-in workers, and discusses the advantages and drawbacks of this approach. This Part argues that bringing sexual harassment claims under the FHA for live-in workers may be beneficial because (1) it can provide protection to plaintiffs whose claims would otherwise be barred under the small employer exception to Title VII; (2) some cases time-barred by Title VII are still timely under the FHA; (8) (3) unlike Title VII, punitive and compensatory damages are uncapped under the FHA; (9) and (4) in some cases, it is easier to establish that a harasser is a "de facto landlord" under the FHA for purposes of triggering vicarious liability than it is to establish the harasser is a "supervisor" under Title VII. Part III also includes a discussion of other ways federal law could protect live-in workers from sexual harassment and assault by drawing on existing state and local legislative action that has enhanced statutory protections for live-in workers, including domestic workers.

  1. The Legal Landscape for Workers with Employer-Provided Housing

    The problem of sexual harassment and assault in live-in industries is far-reaching, and the barriers to legal protection in this area have forced survivors into the shadows for years. This Part introduces the prevalence of the problem of sexual harassment for live-in workers, including domestic workers, farmworkers, and apartment building employees; outlines the legal standards and drawbacks of the existing federal protections against sexual harassment, including Title VII and the FHA; and discusses existing state protections and the national legislative landscape for the issue of live-in worker sexual harassment.

    Over the past several years, as a result of the #MeToo movement--spurred by Tarana Burke's seminal hashtag (10) as well as Harvey Weinstein's pervasive sexual harassment and assault of women in Hollywood--media coverage has begun to pay greater attention to the survivors of workplace sexual harassment. (11) This coverage of high-profile sexual harassment cases has also had the effect of drawing attention to marginalized survivors, including the experiences of undocumented survivors, survivors of color, and low-wage survivors, who are often seemingly unable to bring legal claims due to gaps in federal workplace sexual harassment protections. (12) Indeed, domestic workers, many agricultural workers, and other low-wage workers often lack protection under Title VII due to the small employer exemption and other legal barriers. (13) While some live-in and domestic workers, including those who are employed by third-party agencies, may work for employers who satisfy the required fifteen-employee threshold, for example, many do not. (14)

    In November 2017, however, 700,000 women farmworkers from the Alianza Nacional de Campesinas (the National Farmworkers Women's Alliance) wrote a letter of solidarity to the women of Hollywood in the wake of the Harvey Weinstein sexual harassment and assault allegations. (15) In the letter, they outlined the pervasive sexual harassment they faced on the job as farmworkers. (16) Farmworkers, like domestic workers, are disproportionately immigrant workers. They are also especially vulnerable to harassment on the job, because they often live on the farms where they work, in housing provided by their employers...

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