Harassment Is a Form of Discrimination

Prohibited Sex Discrimination

 Debbi Conrad  |    April 13, 2020

While many people are familiar with the problem of sexual harassment in the workplace, harassment also occurs in housing situations. Sexual harassment is a form of sex discrimination prohibited by both federal and state fair housing laws, and it most often occurs in rental housing where a tenant is vulnerable and dependent upon the landlord, property managers and maintenance workers for upkeep services and the roof over his or her head.

Under Wisconsin law, Wis. Stat. ¬ß 106.50(2)(f) provides it is unlawful for any person to discriminate ‚ÄúBy refusing to renew a lease, causing the eviction of a tenant from rental housing or engaging in the harassment of a tenant.‚ÄĚ The Wisconsin courts have held sexual harassment, defined to include unwelcome sexual advances, unwelcome physical contact of a sexual nature, or unwelcome verbal or physical conduct of a sexual nature, injures the tenant‚Äôs dignity and civil rights, and those injuries are compensable.¬†

On the federal level, the U.S. Department of Housing and Urban Development (HUD) in 2016 amended its fair housing regulations to formalize standards for use in investigations and adjudications involving allegations of harassment on the basis of race, color, religion, national origin, sex, familial status or disability. The rule specifies how HUD will evaluate complaints of quid pro quo, known as ‚Äúthis for that‚ÄĚ harassment and hostile environment harassment under the Fair Housing Act (FHA).

‚ÄúOne‚Äôs home is a place of privacy, security, and refuge (or should be), and harassment that occurs in or around one‚Äôs home can be far more intrusive, violative and threatening than harassment in the more public environment of one‚Äôs work place.‚ÄĚ 81 Fed. Reg. at 63,055.

In addition, the U.S. Justice Department and HUD recently launched an initiative to combat sexual harassment in housing. Both agencies bring cases each year involving various illegal conduct, including allegations that defendants have exposed themselves sexually to current or prospective tenants, requested sexual favors in exchange for reduced rents or making necessary repairs, made unrelenting and unwanted sexual advances to tenants, and evicted tenants who resisted the defendants’ sexual overtures. The investigations frequently uncover sexual harassment that has been ongoing for years or decades and identify numerous victims who never reported the conduct to federal authorities.

Types of sexual harassment

The FHA prohibits harassment, retaliation and other types of discrimination in housing because of race; color; religion; sex; disability; familial status, including households with children under age 18, persons seeking custody and persons who are pregnant; or national origin. Among other things, this forbids sexual harassment. Owners, property management employees and agents can all be liable for harassment, as can tenants who harass other tenants.

HUD, in its 2016 harassment amendments to the fair housing regulations in 24 CFR part 100, specified¬† that is was illegal to condition the ‚Äúterms, conditions, or privileges relating to the sale or rental of a dwelling, or denying or limiting the services or facilities in connection therewith, on a person‚Äôs response to harassment because of race, color, religion, sex, handicap, familial status, or national origin.‚ÄĚ The amended rules also clearly indicate it is illegal to represent a dwelling is unavailable because of the person‚Äôs response to a request for a sexual favor or other harassment based upon a protected class. Although one hopes to never see such a thing, the amended federal rules also point to discrimination in the provision of brokerage services and specify it is illegal to condition access to brokerage services on a person‚Äôs response to harassment because of race, color, religion, sex, handicap, familial status or national origin. The same holds true for appraisals and the provision of loans and financial assistance.

Example: harassment is a form of discrimination
Jane has a Housing Choice Voucher (Section 8), but one month she falls behind on her portion of the rent. When Jane asks her landlord if he will give her a few more days, her landlord says yes but only if she will go out with him. Feeling she has no choice, Jane says yes. Over the next few days, Jane’s landlord sends her sexually explicit text messages even though Jane tells him to stop. Jane’s landlord tells her that if she does not go out with him again, he is going to evict her, and she will lose her voucher. Jane files a complaint with HUD because sexual harassment is a form of sex discrimination.

Courts have consistently recognized sexual harassment as a form of discrimination that violates the FHA as discrimination because of sex. A single incident of harassment can violate the FHA. In order to sustain a claim of sexual harassment, the individual must show that the sexual conduct was unwelcome. However, harassment does not require physical contact and includes written, verbal and other conduct. HUD interprets the FHA prohibition on sex discrimination to include discrimination related to an individual’s sexual orientation and discrimination based on gender identity. The FHA protects men and women from sex discrimination, including same-sex sexual harassment.

Courts, and now the federal fair housing regulations, recognize two types of sexual harassment: (1) quid pro quo sexual harassment, and (2) hostile environment sexual harassment.

Quid pro quo

Quid pro quo harassment occurs when a housing provider or his or her employee, agent or contractor conditions access to or retention of housing or housing-related services on a victim’s submission to sexual conduct. For example:

  • A landlord demands nude photos in return for approving¬†a rental application.
  • A property manager evicts a tenant after the person refuses¬†to have sex.
  • A maintenance man requests sexual favors in return for making needed repairs.

Example: quid pro quo harassment
‚ÄúA Central Valley landlord threatened to evict a married couple unless the wife would have sex with him, claiming that they were powerless to do anything to him since he could report them to [Immigration and Customs Enforcement].‚Ä̬†
AB 291, Senate Rules Committee Floor Analysis (2017)

Quid pro quo harassment can still occur even if a person agrees to comply with an unwelcome request or demand.

Hostile environment

Hostile environment harassment occurs when a housing provider subjects a person to severe or pervasive unwelcome sexual conduct that is intimidating, hostile, offensive or otherwise significantly undesirable and interferes with the sale, rental, availability, terms, conditions or privileges of housing or housing-related services, including financing. An owner, property management employee or agent create a hostile environment if they subject a resident or applicant to unwelcome sexual conduct that is sufficiently severe or pervasive that it interferes with the person’s right to obtain, maintain, use or enjoy housing. 
For example:

  • A landlord subjects a tenant to severe or pervasive unwelcome touching, kissing or groping.
  • A property manager makes severe or pervasive unwelcome, lewd comments about a tenant‚Äôs body.
  • A maintenance man sends a tenant severe or pervasive unwelcome, sexually suggestive texts or photos and enters her apartment without invitation or permission.

Other Types of harassment

Illegal harassment includes harassment other than sexual harassment. Severe or pervasive offensive remarks or hostile behavior because of a person’s race, color, religion, sex, disability, familial status or national origin are illegal under the FHA. For instance, elderly persons often have disabilities, which make them particularly vulnerable to harassment.
Other examples include: 

  • Repeatedly yelling anti-Muslim slurs at a Muslim homeowner or tenant.¬†
  • Taunting and threatening a person with a mental disability.
  • Subjecting a person to pervasive racial epithets or defacing a person‚Äôs home with racially derogatory or threatening words or images.

Property owner and manager liability

All property owners and managers are responsible for helping ensure their housing is free from discriminatory harassment of any type. Owners and management companies can be liable for sexual and other harassment if the harassment is committed by an employee or agent, even if supervisors don’t know about it. For example, an owner is subject to liability if the owner’s property manager sexually harassed a tenant; the property manager would be liable too. An owner or management company is also at risk for liability if the company fails to take action to stop harassment of a tenant or applicant by an employee, agent or another tenant, if the company knew or should have known about it.

For example, a property management company is liable if it learns one tenant has been repeatedly harassing another tenant because of that tenant’s disability, and no one at the management company acts to stop the harassment. 

A property owner or manager may be held directly or vicariously liable if any of his or her employees, agents or contractors sexually harass an applicant, resident or tenant. For example, if an apartment manager authorizes a maintenance worker to enter a tenant’s home to make a repair, and the maintenance worker sexually harasses the tenant, the management company may be vicariously liable for the discriminatory actions of the maintenance worker. A property owner or manager who knows or should have known about sexual harassment perpetuated by such persons but fails to take action to stop it, can be directly liable for any resulting harm. In addition, some courts have held owners and managers, including condominium associations, liable in situations where they knew of tenant-on-tenant harassment and did not take remedial action.

HUD Settlement with Minneapolis Landlord 
Accused of Housing Discrimination  
In May 2019, HUD approved an agreement between a Minneapolis landlord and a female tenant who alleged the landlord on numerous occasions requested sex from her in exchange for a reduction in her rent. Under the agreement, the landlord will pay $30,000 to the woman and $7,000 to her attorney. The landlord is also required to engage a third-party real estate management company to manage all of his residential properties for the next five years.

Harassment complaints

Individuals who believe they may have been victims of sexual harassment or other types of housing discrimination can call the Housing Discrimination Tip Line at 1-800-896-7743, email the Justice Department at fairhousing@usdoj.gov, or contact HUD at 1-800-669-9777 or through its website at www.hud.gov/program_offices/fair_housing_equal_opp. A complaint may also be filed with the Wisconsin Department of Workforce Development at dwd.wisconsin.gov/er/civilrights/housing/complaintprocess.htm, or an individual may contact the Metropolitan Milwaukee Fair Housing Council at 414-278-1240.

Debbi Conrad is Senior Attorney and Director of Legal Affairs for the WRA.

Copyright 1998 - 2020 Wisconsin REALTORS¬ģ Association. All rights reserved.

Privacy Policy   |   Terms of Use   |   Accessibility   |   Real Estate Continuing Education