Landlord Liability for Tenant Harassment: Is Title VII the Answer?

Dylan Shamoon

 

            Circuit Courts are divided as to whether and under what circumstances landlords can be liable for failing to respond to reports of tenant-on-tenant harassment under the federal Fair Housing Act (FHA). Given the similarities between the FHA and Title VII, Courts have often analogized the two and have applied frameworks from one to the other. One commentator summarized the relevant caselaw and argued that, given the lack of consensus on the above-mentioned question, “courts are right to look to the analogous workplace context under Title VII.” He elaborated that by “applying nearly identical statutory language, courts have routinely recognized employer liability for failing to take reasonable remedial steps when they knew or should have known about a hostile work environment[.]”[1]

            This article argues that courts should recognize a new cause of action for landlord responsibility, and in doing so, create a new framework specifically tailored to the realities of the landlord-tenant relationship. Such an approach can avoid the many concerns that courts raise in deciding landlord-tenant liability cases when applying a Title VII employment framework to the housing context.

I. Caselaw

            The Seventh Circuit held in 2018 that the landlords of a senior living community were liable for failing to respond to numerous reports that one of their tenants was being harassed because of her sexual orientation.[2] The Seventh Circuit noted that the defendants had both actual knowledge of the harassment and were deliberately indifferent to the harassment, and therefore under a deliberate indifference theory, the landlords were liable under the Fair Housing Act.[3] The Second Circuit has gone back and forth between allowing a cause of action against a landlord for failing to respond to reports of tenant-on-tenant harassment under the federal Fair Housing Act and not allowing such a cause of action. The Second Circuit, in its 2019 Francis v. Kings Park Manor Inc. decision, initially held that the landlord could be held liable for failing to respond to the reports of tenant-on-tenant harassment.[4] The Second Circuit found that “the text of § 3617, which forbids ‘interfer[ence]’ with a person's ‘exercise or enjoyment of’ his or her rights under the FHA, clearly encompasses landlord liability for a tenant's racially hostile conduct in at least some circumstances.”[5] The opinion, however, was later withdrawn and the en banc Court offered a new opinion in 2021.[6]The en banc Court took the opposite position from what they offered in 2019 and held that “landlords typically do not, and therefore cannot be presumed to, exercise the degree of control over tenants that would be necessary to impose liability under the FHA for tenant-on-tenant harassment.”[7] The Second Circuit joined several other courts in highlighting the many legal and practical concerns that arise when considering the reality of the landlord-tenant relationship and deciding to impose liability against landlords for inaction.

II. The Problem

            This article argues that the problem with the existing analysis surrounding landlord liability for failing to respond to reports of tenant-on-tenant harassment stems from the fact that courts have tried to apply the Title VII employment framework to the housing context. There are, however, meaningful differences between both the landlord-tenant and the employer-employee relationship.

            Employers generally exert a much greater degree of control over the workplace than do typical landlords. For example, a corporate office might have a manager present during work hours, or while a factory will have a supervisor who will survey the premises. It is not typical for apartment renters to be under this degree of supervision, given that much of their time is spent in the privacy of their rented home. The Second Circuit highlighted this difference in its 2021 decision when it specifically noted that landlords do not “exercise the degree of control over tenants” necessary for them to find them liable under the FHA for failing to respond to the reported harassment.[8] Judge Livingston’s dissent in the 2019 Francis decision highlighted the problem with trying to analogize the FHA to the Title VII employment framework.[9] She correctly notes that “employers simply exert far more control over not only their employees, but also the entire workplace environment, than do landlords over their tenants and the residences” and that therefore the FHA framework is not analogous to the Title VII framework.[10]

            The problem with the FHA Title VII analogy extends beyond the level of control over the workplace. Employers have a different and generally more extensive set of tools available at their disposal to investigate and respond to reported harassment. In many cases, employers have the power to conduct investigations, involve human resources, offer trainings, and discipline employees.[11]Employers, on the other hand, generally have a smaller set of tools at their disposal. One of the tools, threatening eviction, however, can be extremely effective and can be analogized in many ways to threating to fire an employee. Courts have recognized the difference between the two sets of tools but have raised the difference as a concern when considering whether to allow the FHA cause of action for failing to respond to reported tenant-on-tenant harassment.[12]

III. Recommendation

            The Francis dissent concluded that, among other factors, the landlord should not be held liable for failing to respond to the tenant-on-tenant harassment because the housing environment and landlord-tenant relationship is not completely analogous to the employment context.[13] This reasoning is shortsighted, however, because it fails to acknowledge that, based on the broad goals behind the FHA, we would want landlords to use their various powers, such as evicting or threatening eviction, in order to address serious harassment in the housing context. Beyond recognizing that there are salient differences between the housing and employment context, Courts should instead begin outlining a new framework that is grounded in the realities of the landlord-tenant. This new framework should be developed on a case-by-case basis. It could include considerations such as; whether the harassment was ever reported to the police or a third party, whether the landlord was made directly aware, whether the landlord offers a doorman or security service within the building, and so forth. Landlords should not be allowed to escape liability for complete inaction simply because Courts have recognized that the employment Title VII framework is not completely analogous.

 

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[1] Aric Short, Not My Problem? Landlord Liability for Tenant-on-Tenant Harassment, 72 Hastings L.J. 1227, 1273 (2021).

[2] Wetzel v. Glen St. Andrew Living Cmty., LLC, 901 F.3d 856, 864 (7th Cir. 2018).

[3] Id.

[4] Francis v. Kings Park Manor, Inc., 944 F.3d 370, 379 (2d Cir. 2019).  

[5] Id.

[6] Francis v. Kings Park Manor, Inc., 992 F.3d 67, 70 (2d Cir. 2021).

[7] Id.

[8] Id.

[9] Francis v. Kings Park Manor, Inc., 944 F.3d 370, 391 (2d Cir. 2019) (Livingston, J., dissenting).

[10] Id.

[11] Id. at 393 (Livingston, J., dissenting) (noting that a “landlord cannot temporarily evict a tenant or force all tenants to undergo harassment training”).

[12] Id.

[13] Francis v. Kings Park Manor, Inc., 944 F.3d 370, 395 (2d Cir. 2019) (J. Livingston dissenting).