United States: Landlords May Be Sued For Failing To Address Racial Harassment

Last Updated: April 23 2019
Article by Robert L. Schonfeld

Can a landlord be held liablefor failing to take prompt action to address a racially hostile housing environment created by one tenant targeting another, where the landlord knew of the discriminatory conduct and had the power to correct it? A divided panel of the U.S. Court of Appeals for the Second Circuit recently ruled in the affirmative that a landlord could be so held liable

In Francis v. Kings Park Manor, plaintiff Donahue Francis, an African-American, signed a residential lease with defendant Kings Park Manor (KPM), an apartment complex in Suffolk County. As alleged in the complaint, not long after he moved in, Francis's next-door neighbor began to subject Francis to a continuous campaign of racial harassment, abuse and threats. The neighbor repeatedly used racially derogatory language to Francis's face, told Francis that "I oughta kill you," and stood at Francis' open front door and photographed the interior of Francis's apartment.

Concerned about his personal safety, Francis called the Suffolk County police, which informed KPM about the neighbor's activity. KPM did nothing in response to the information it had received from the police. Francis then wrote KPM directly about his neighbor's conduct, and KPM failed to do anything and did not even respond to Francis's letter

The neighbor was eventually arrested for aggravated harassment in violation of the New York Penal Law. Francis continued to write to KPM, even advising KPM about the neighbor's arrest, and KPM continued to ignore Francis's letters and allowed the neighbor to remain as a tenant in the building. Eventually, the neighbor's lease expired and he moved out of the building. Thereafter, the neighbor pleaded guilty to harassment in violation of the New York Penal Law and a state court entered an order of protection prohibiting the neighbor from contacting Francis.

Francis filed a lawsuit in the U.S. District Court for the Eastern District of New York against both KPM and the neighbor, alleging that they had engaged in racial discrimination in violation of the Federal Fair Housing Act, the Civil Rights Act of 1866, and the portion of the New York State Human Rights Law which bars housing discrimination in New York. While tenants in this Circuit have been allowed to sue neighbors who created a hostile housing environment based on their religion (Ohana v. 180 Prospect Place Realty, 996 F. Supp. 238 (E.D.N.Y. 1998)), Francis's case appears to be a case of first impression in this Circuit with regard to suing a landlord.

The District Court granted KPM's motion to dismiss, holding that Francis had failed to allege that KPM's conduct was the result of direct, intentional racial discrimination. Francis appealed to the Court of Appeals.

By a 2-1 margin, the Court of Appeals on March 4, 2019 vacated the District Court's dismissal of Francis's claims under the Federal Fair Housing Act, the Civil Rights Act of 1866, and the New York State Human Rights Law. The Court of Appeals remanded the case back to the District Court where Francis will have the opportunity to prove his claims.

A major issue in the case is whether the Federal Fair Housing Act is applicable to events that happen after a resident acquires housing. In other words, most cases under the Federal Fair Housing Act involve cases where someone refuses to sell or rent premises to another person because of that person's race, religion, national origin, gender, marital status, or disability or where the terms and conditions of the sale or rental are different to someone because of membership in a protected class. Many cases are also brought under the Federal Fair Housing Act where a governmental action such as a discriminatory statute or the denial of a necessary permit deprives a person in a protected class of the right to live in housing of choice.

In this case, Francis was already living in his apartment at the time he filed his action. Indeed, KPM had agreed to rent the apartment to Francis knowing that he is an African-American. Nonetheless, the court held that the Fair Housing Act applied not only to the sale or rental of a unit of housing but also to certain benefits or protections flowing from and following the sale or the rental. Writing for the majority, Judge Raymond Lohier noted that Title VII of the Civil Rights Act of 1964 barred both pre- and post-hiring discrimination, and that housing discrimination should not be treated any differently

The majority opinion also cited to a 2016 final rule of the U.S. Department of Housing and Urban Development (HUD) which stated that "hostile environment harassment" could be a violation of the Fair Housing Act if it involved "unwelcome conduct that is sufficiently severe or pervasive as to interfere with: ... the use or enjoyment of a dwelling." The court held that the language in the HUD rule persuaded it to reach its conclusion that a landlord may be liable under the Fair Housing Act for failing to intervene on tenant-on-tenant racial harassment of which it knew or reasonably should have known and had the power to address. The court also rejected KPM's argument that Francis had failed to allege that it had intentionally discriminated against him, holding that one did not need to show discriminatory intent in order to prevail in a Fair Housing Act action.

The court also found that Francis had also stated a cause of action under the Civil Rights Act of 1866 and the New York State Human Rights Law, and remanded the matter back to the District Court to determine if KPM indeed knew about the actions of the neighbor or whether KPM tried but failed to respond to Francis's complaints or whether KPM had any control over the tenants and the power to act to redress the neighbor's abuse.

Circuit Court Judge Debra Ann Livingston wrote a dissenting opinion. In her opinion, Judge Livingston stated that the Fair Housing Act was concerned with access to housing rather than events occurring after a member of a protected class was granted access to the housing. Judge Livingston noted that the complaint did not allege that KPM undertook any obligation in its rental agreement with Francis for monitoring the conduct of other tenants and remediating their behavior.

Judge Livingston also criticized the majority's reliance on Title VII law, stating that there are distinctions between an employeremployee relationship and a landlord-tenant relationship in that the employee is considered an agent of the employer while the tenant is not considered an agent of the landlord. In her opinion, Judge Livingston noted that a landlord has far less control over a tenant than an employer has over an employee.

As the U.S. Supreme Court held in City of Edmonds v. Oxford House, 514 U.S. 725, 731 (1995), the Fair Housing Act has a "broad and inclusive compass." That principle alone should be enough to allow Francis to have his day in court to prove that KPM knew about the relationship between Francis and the neighbor and could have done something to protect Francis from the abuse he suffered from his neighbor because of his race. However, to prevail, Francis will have to demonstrate that the landlord could have done something for Francis's protection. In other words, did the landlord's lease with the neighbor give the landlord the right to evict the neighbor because of his conduct?

It is noteworthy that even if a plaintiff like Francis does not prevail on a federal claim or a New York State Human Rights Law claim, a plaintiff may be able to prevail on an old-fashioned warranty of habitability claim against the landlord. That claim was not raised in the federal action.

Other outside factors may imperil this decision even if the Supreme Court does not grant certiorari to this case. In 2015, the U.S. Supreme Court held by a 5-4 margin that one does not need to allege intentional discrimination in order to prevail under the Federal Fair Housing Act. Texas Dept. of Housing and Community Affairs v. Inclusive Community Project, 135 S.Ct. 2507 (2015). However, that decision was written by Justice Anthony Kennedy, and a future similar case may have a different result with his replacement, Justice Brett Kavanaugh. Also, the HUD rule relied upon by the majority was written in 2016 under President Obama, and HUD under President Trump may take a different view.

In any event, as Francis is the law in the Second Circuit at present, New York and Connecticut landlords under that decision must take every allegation of racial harassment seriously and aggressively act on those allegations when appropriate.

Originally published by New York Law Journal

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions