POLICING DISCIRMINATION PERPETRATED BY OTHERS (October 2016)

New HUD anti-discrimination regulations have significant ramifications for community associations and landlords.  Under the new regulations, community associations may be liable for discriminatory harassment perpetrated by third parties.  The federal Fair Housing Act prohibits discrimination in connection with housing and housing-related services because of race, color, national origin, religion, sex, disability, and familial status.  The wide range of discriminatory practices include, among other things, making discriminatory statements, refusing to rent or sell, denying access to services, setting different terms or conditions, refusing to make reasonable modifications or accommodations, discriminating in residential real estate-related transactions, and retaliating.

HUD considers harassment to also be a discriminatory practice and has adopted regulations, effective October 14, 2016 and codified at 24 CFR section 100, to formalize standards for assessing claims of harassment under the Fair Housing Act.  These new regulations provide, among other things, that in addition to being liable for one’s own conduct and that of one’s agents and employees, a person is liable for failing to take prompt action to correct and end a discriminatory housing practice by a third party, when the person knew or should have known of the discriminatory conduct and had the power to correct it. 

Accordingly, community associations may be liable for the discriminatory conduct of others if the Association has, under the governing documents or the law, the power to take action against the third party’s discriminatory conduct.

Landlords too may be liable for the discriminatory conduct of others if the landlord has the power to take action against the third party’s discriminatory conduct.  Landlord’s already have the duty to protect the covenant of quiet enjoyment by controlling, to the extent that the landlord has the power, disturbances to any of their tenants.  The new regulations present another layer when it comes to discriminatory harassment.

Associations and Landlords should consult their legal counsel upon becoming aware of discrimination perpetrated on the property, whether by their own personnel, the management company, or a third party.

Other highlights of the new regulations include the following:

  • Harassment can be written, verbal, or other conduct, and does not require physical contact.
  • A single incident of harassment can constitute a discriminatory housing practice.
  • An employer’s defense to liability for harassment by a supervisor in the work environment does not apply to violations of the Fair Housing Act.  In work place harassment cases, an employer may, depending on the circumstances, have a defense if the employer exercised reasonable care and was not negligent in permitting the supervisor’s conduct to occur.  These defenses are not available in the fair housing context.

 

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