HUD recently issued its final rules regarding quid pro quo (“this for that”) harassment and hostile environment harassment under the Fair Housing Act. The Fair Housing Act prohibits housing discrimination based on race, color, national origin, religion, sex, disability and familial status. Although community associations do not typically consider themselves to be “housing providers,” the Fair Housing Act applies to associations and plays a role in how the community relates to its residents.
The new rules define quid pro quo harassment and hostile environment harassment as prohibited discriminatory housing practices. Although both types of harassment might arise in a community association, conduct amounting to hostile environment harassment seems more likely. Hostile environment harassment is defined as “…unwelcome conduct that is sufficiently severe or pervasive as to interfere with: the availability, sale, rental, or use or enjoyment of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision or enjoyment of services or facilities in connection therewith; …”
HUD will evaluate the totality of the circumstances to determine whether conduct amounts to hostile environment harassment. Factors include the nature of the conduct, its context, the conduct’s severity, scope, frequency and location, and the relationship of the parties. If a reasonable person would think the conduct is sufficiently severe or pervasive as to create a hostile environment, HUD is likely to find that there has been harassment. It is important to note that the conduct may be a one-time event or may be several instances over time.
Disputes arise in community associations on a regular basis. These disputes may be resident-to-resident or may be between the board and a resident. Frequently, a resident will attempt to involve the association in a dispute with a neighbor. Boards should be aware that race, color, national origin, religion, sex, disability or familial status could be an underlying basis for a dispute between residents. Based on the final rules, the board not only needs to be careful about becoming a tool in possible harassment, but may also have a duty to take steps to mitigate the possible harassment. In addition, if the board suspects that a board member is engaged in conduct that could amount to hostile environment harassment, it needs to take steps to protect the association.
Violating fair housing rules can be very costly. Although HUD recognizes that a community association does not necessarily have the same authority as an apartment owner or other housing provider, the rules require a community association to take the actions it legally can to stop harassment. If the manager or the board has concerns about possible harassment, contact the association’s attorney early. The attorney can help the association evaluate the conduct and develop a course of action within the association’s authority to address the discrimination. Doing nothing or delaying action can lead to liability.