Hostile Housing & Harassment Oh My!



While both the federal and state laws have long prohibited harassment in housing because of race, color, religion, sex, national origin, disability, and familial status, until now there have been no formal standards for assessing claims of harassment under the Federal Fair Housing Act.

Recognizing the need for such standards to use in investigations and adjudication of claims of discrimination based on harassment and hostile environments, the Department of Housing and Urban Development, commonly referred to as “HUD,” on September 14, 2016 released new Rules and Regulations to be applied both in administrative hearings and in cases filed in the State and Federal Courts. These Rules and Regulations will go into effect on October 14, 2016.

It is worth mentioning that both federal law and the state law, in Massachusetts M.G.L. c. 151B had already imposed certain responsibilities on community associations to take action when the Board had been informed of a potential hostile environment allegedly being created by one Unit Owner against another, or a group of Unit Owners, who would be considered to be a protected class.

In fact in a recent matter before the Massachusetts Commission Against Discrimination (the “MCAD”) in which this office successfully represented the Board, the hearing investigator cited the following as the standard to be applied in determining whether a Board created or unjustly allowed a hostile environment to exist.

“In order for the Complainants to establish a prima facie case of discriminatory
harassment in housing, Complainants must show that: (1) they are members of a protected
class; (2) they were subjected to unwelcome verbal or physical conduct related to their
protected class; (3) the harassment was sufficiently severe or pervasive to interfere with
Complainants’ use or enjoyment of their home; and (4) the harassment was either carried
out by the landlord, owner, property manager, or their agent/employee, or Respondent
knew or should have known of the harassment and failed to take prompt remedial action.”
Note, that within the condominium context the laws are clear that the governing Board is deemed to be “the owner.”

With the recent release of the Rules and Regulations by HUD, a more formalized and expanded system of determining when liability will be imposed has been created.

Briefly, the Rule specifies how HUD will treat complaints of quid pro quo (“this for that”) harassment and hostile environment harassment going forward.

The four key components of the Rule are as follows:

  • There is now a formal definition of “quid pro quo harassment” and “hostile environment harassment.”
  • There are now formalized standards that will be used in both State Agencies (in Massachusetts the MCAD) and in both state and federal Courts;
  • The Rule includes illustrations of situations that will be considered to be allowing a hostile environment to exists; and
  • The Rule identifies when a housing provider, including community associations may be held responsible for actions by third parties in allowing harassment or hostile environment harassment to exist.

At a minimum the Rules impose liability when a condominium board knew or should have known of the discriminatory conduct of a third party (i.e. Unit Owner) and failed to take prompt action to correct it when the Board had the power to correct and end a discriminatory housing practice, either under the law or pursuant to its governing condominium documents.

The Rules also state that investigators and courts should look at the totality of the circumstances and apply the “reasonable person standard.” Under the Rules the standard is “Whether unwelcome conduct is sufficiently severe or pervasive as to create a hostile environment is evaluated from the perspective of a reasonable person in the aggrieved person’s position.”

As stated earlier while the liability under the both state and federal law already existed for Boards it will be interesting to see how these new formalized standards are applied by the administrative agencies and the courts.

If anything, the new Rules serve as a reminder that when in doubt about a situation described as harassment or creation of a hostile housing environment that has been reported to the Board, Boards would be advised to quickly contact their legal representative for guidance.