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 to
address 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 kbrady@lawmtm.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.