In some cases, an Association is justified in taking a hands-off approach to resident against resident complaints. This is not one of them. In fact, an Association has certain affirmative obligations toaddress hostile environment harassment, not only by its own members or agents, but also by third parties (residents) if it knew or should have known of the conduct/harassment. The stakes for potential Association liability are high, so let’s review what hostile environment harassment is and what an Association can and must do.
Hostile environment harassment is unwelcome conduct upon a member of a protected class that interferes with the use or enjoyment of housing or housing-related activities.
What is Hostile Environment Harassment?
Hostile environment harassment is unwelcome conduct upon a member of a protected class that interferes with the use or enjoyment of housing or housing-related activities. The harassment must be sufficiently severe and pervasive to create a hostile environment. The conduct could be a single instance or multiple instances of harassment.
In 2016, HUD published a final rule regarding harassment and fair housing, which can be found here. The HUD rule also addresses quid pro quo harassment, which is not discussed in detail in this article.
When Can an Association be Held Responsible?
An Association can be held be responsible for Board members, agents and employees that create a hostile living environment (direct harassment) as well as for resident conduct if the Association knew or should have known of the discriminatory conduct or harassment, had the power to correct it and failed to address it (third party harassment).
This means that the Association has an affirmative obligation to address certain resident on resident harassment.
This also means that the Association does not need to receive a specific complaint to be held responsible. The Association could be held responsible if, for example, a Board member, property manager, or maintenance person observes conduct that amounts to hostile environment harassment and fails to take appropriate measures to stop it. The resident would not have to make a formal complaint to trigger liability.
How Can an Association Protect Itself?
Protecting your Association from a hostile environment harassment claim starts with having appropriate policies and procedures in place, including:
• Educating board members, managing agents and staff on fair housing and anti-discrimination obligations on a regular basis;
• Enacting an anti-harassment policy; and
• Establishing procedures for receiving and processing harassment/hostile environment complaints from resident and internal channels.
If an Association receives or has notice of a hostile environment harassment complaint, it is important that the Association acts promptly; it can’t be hands-off. Initial response may include:
• Respond and acknowledge receipt of verbal or written complaint/notice of harassment;
• Investigate the claim and obtain information about how many incidents occurred, the severity of the incidents, what happened, how has the resident been affected and whether the incident is related to the resident’s membership in a protected class. An investigation may also include reviewing security footage and interviewing residents, board members or witnesses.
• Remind residents that if they feel they are in immediate danger to contact local police.
• Offer resource information to the resident on obtaining a Harassment Prevention Order through the local District Court.
• Be sensitive to the resident and follow all rules on receipt and maintenance of confidential and private information.
After an investigation of the facts and a review of the enforcement measures permitted by your Association’s governing documents, the Association may need to take one or more of the following measures: send a warning letter or violation notice, impose fines, seek a court-ordered injunction or connect residents with dispute resolution services. It is best to consult with legal counsel as soon as possible about the appropriate steps to take in response to a hostile environment harassment complaint.
If you have questions about your Association’s harassment policies and procedures or have received a harassment complaint, call us for more information at 781-817-4900 or email Katherine Brady at email@example.com.
Originally posted June 25, 2019 on tlawmtm.com.
Kate is an associate in the firm’s litigation department. Kate comes to MTM with years of experience in condominium and real estate litigation and recognized expertise in fair housing, affordable housing and the myriad of statutes and regulations which apply.
In her litigation practice, Kate has handled complex transitional litigation including phasing disputes, construction defect claims and related matters. Most recently in her work with the City of Boston Kate was intimately involved with the development of housing policies including drafting and testifying in support of bills that would increase homeownership opportunities for middle income households, incentivize the preservation of naturally occurring affordable housing, prevent family homelessness and enhance tenant protections.