Fair Housing Project Legal Aid of North Carolina 2101 Angier Ave Ste 300 Durham NC 27703 1855797FAIR wwwFairHousingncorg The work that provided the basis for this publication was supported by funding under a grant with the US Department of Housing and Urban Development The subst ID: 799058
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Fair Housing PRIMER: SEX DISCRIMINATION
Fair Housing ProjectLegal Aid of North Carolina2101 Angier Ave., Ste 300Durham, NC 277031-855-797-FAIRwww.FairHousingnc.org
Slide2The work that provided the basis for this publication was supported by funding under a grant with the U.S. Department of Housing and Urban Development. The substance and finding of the work are dedicated to the public. The author and publisher are solely responsible for the accuracy of the statements and interpretations contained in this publication. Such interpretations do not necessarily reflect the views of the Federal Government.
The material in this presentation is for information and educational purposes only and does not constitute legal advice.2
Slide3Laws Addressing Fair Housing
Federal Fair Housing Act (FHA) (42 U.S.C. §3601, et seq.)NC State Fair Housing Act (N.C. Gen. Stat. §41A-1, et seq.)Civil Rights Act of 1866 (42 U.S.C. §1981)Title VI of Civil Rights Act of 1964 (42 U.S.C. §2000d, et seq.)Americans with Disabilities Act (ADA) (42 U.S.C. §1201, et seq.)Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §794)Local fair housing ordinances
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Slide4Types of Property Covered
The FHA broadly applies to “dwellings,” which includes almost every residential rental unit Single and multi-family housing houses, apartments & condosGroup homesSheltersMigrant housing Assisted living housingLong-term transient lodging
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Slide5Who Has to Comply?Almost all people involved in selling, renting, and managing housing must comply with Fair Housing laws
Owner, landlord, management company, manager, maintenance workers, and other employeesReal estate agencies, agents, sellers, banks, lending institutions, and insurance companiesHomeowners Associations and Condo BoardsNeighbors and other third parties (individual, vicarious and third-party liability)
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Slide6Protected Classes
The federal FHA prohibits discriminatory conduct against persons based on: racecolornational originreligionsex (gender)Non-conformity with gender stereotypesfamilial status (families w/ children)
handicap (disability)
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Slide7HOUSING DISCRIMINATION
Treating differently = disparate treatmentFacially neutral rule disproportionately impacts one of protected groups = disparate impactMaking a discriminatory statementCoerce, intimidate, harass, retaliate, or otherwise interfereFailure to make a reasonable accommodation and/or reasonable modification based on person’s disabilityFailure to adhere to accessibility building requirements7
Slide8Sex Discrimination
Slide9Sex Discrimination
Different treatment based on sex/gender prohibitedCan’t refuse to rent because tenant is a femaleCan’t charge a higher security deposit because tenant is maleIncludes non-conformity with gender stereotypesIf man does not act/dress “masculine enough”If woman does not act/dress “feminine enough”Virtually same as “gender identity”
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Sex Discrimination
Many studies have found that LGBTQ individuals experience housing discrimination
Other states and local jurisdictions have added sexual orientation, gender identity, and/or gender expression to their FHA laws
http://www.lgbtmap.org/equality-maps/non_discrimination_laws
Slide112012 HUD Equal Access Rule
2012 Equal Access Rule: Access to HUD Programs regardless of sexual orientation or gender identity Effective March 5, 2012Applies to HUD-assisted or HUD-insured housingIncludes Public Housing Authorities, HUD-assisted shelters, FHA lenders, etc.Housing “shall be made available without regard to actual or perceived sexual orientation, gender identity, or marital status”Prohibits inquiries of sexual orientation or gender identity24 CFR 5.105(a)(2)
Slide12Pregnancy and Maternity Leave Discrimination
Pregnancy and maternity leave cannot be reasons for denying housingIncludes refusing to rentdifferent terms/conditionsrefusing to provide insurance or mortgage loanConstitutes sex and familial status discrimination
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Slide13Pregnancy and Maternity Leave Discrimination
Since 2010 > 170 complaints of pregnancy or maternity leave discrimination by mortgage lendersCannot have policies to disregard a borrower’s income just because she is on maternity leave for purposes of qualifying for a loanCannot have policies to condition approval of loan application on a woman returning to work after maternity leave
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Slide14Pregnancy and Maternity Leave Discrimination
Cornerstone Mortgage Company (2011)$15,000 for complainant + $750,000 fundMortgage Guarantee Insurance Corporation (2012)$511,250 fund + $38,750 civil penaltyBank of America (2012)$30,000 to complainant, $16,000 to atty; $15,000 to FH group; $100,000 fundPNC Mortgage (2013)$15,000 to couple + $7,500 each for other victims in 8 statesSunTrust Mortgage, Inc. (2013)$18,000 each to 2 couplesFirstBank Mortgage Partners (2014) $35,000 to couple Mountain America Credit Union (2014)$10,000 to borrower; $15,000 to FH organizationBank of America (2014)$45,000 to 2 couples & real estate agent
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Slide15DV & Disparate Impact Claims
Statistics show majority of DV victims are women.
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discrimination against victims of dv
disproportionate impact on womenpossible sex discrimination under FHA
Resource: Sara K. Pratt’s HUD Memorandum, Assessing Claims of Housing Discrimination against Victims of Domestic Violence under the FHA and the Violence Against Women Act (VAWA) (2/9/11)
Examples:Landlord terminates lease of female tenant due to:Property damage caused by male abuser (or housing agency terminates subsidy for same reason)
Number of 911 calls or for police assistance related to DV (may call “criminal activity”)Even if reason is to avoid violating local “nuisance ordinance”Refusing to rent to female b/c of history of property damage caused by male abuser
Slide16Sex discrimination, DV & Disparate Impact Claims
Nuisance & Sex Discrimination Cases (ACLU):Briggs v. Borough of Norristown, 2:13-cv-02191 (E.D. Penn. 2013) (threatened with eviction after female domestic violence survivor called police several times) (settlement - $495,000 in damages and atty fees, repeal of ordinance)Markham v. City of Surprise et al, 2:15-cv-01696 (D. AZ 2015) (same) (settlement - $200,000 in damages and atty fees/costs; $40,000 of settlement went to Markham; repeal of ordinance)Possibility of other protected classes also having claims“Nuisance ordinances have also been found to disproportionately impact and be disparately enforced against communities of color and persons with disabilities
.” ACLU
https://www.aclu.org/other/i-am-not-nuisance-local-ordinances-punish-victims-crime
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Slide17Harassment:
HUD’s 2016 RULE
“We emphasize that [the Defendant] subjected [Plaintiff] Quigley to these unwanted interactions in her own home, a place where Quigley was entitled to feel safe and secure and need not flee, which makes [the Defendant’s] conduct even more egregious.”
Quigley v Winter, 598 F.3d 938, 947 (8th Cir. 2010)
Slide18Harassment
Can be based on any protected classRace, color, religion, national origin, sex, familial status, disabilityCan involve any part of housing transaction, includingConditioning availability or causing person to vacate or abandon efforts to secure dwellingConditioning terms, privileges, servicesRepresenting unit unavailable
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Slide19HarassmentTypesCan be written, verbal, or other conductDoes not require physical contactSingle incident may be enough where
Incident is sufficiently severe to create a hostile environment orIncident evidences a quid pro quo19
Slide20Quid Pro Quo SEX Harassment
“Unwelcome request or demand to engage in conduct where submission to the request or demand, either explicitly or implicitly, is made a condition related to”sale, rental or availability of a dwelling;terms, conditions, or privileges of the sale or rental; oravailability, terms, or conditions of a residential real estate-related transaction.Does not matter if person acquiesces to unwelcome request or demand 24 CFR 100.600(a)(1)
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Slide21Hostile Environment Harassment
“Unwelcome conduct that is sufficiently severe or pervasive as to interfere” with availability, sale, rental or use or enjoyment of a dwelling; terms, conditions, or privileges of the sale or rental; oravailability, terms, or conditions or a residential real estate-related transaction. 24 CFR 100.600(a)(2)
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Slide22Hostile Environment: Standards
Look at the “totality of the circumstances”Factors to consider: Nature of conduct, context, severity, scope, frequency, duration, location of conduct, relationships of persons involvedDoes not require showing psychological & physical harmBut such harm may be relevant & relate to damagesEvaluate from perspective of “reasonable person in the aggrieved person’s position”
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Slide23SurveysRegina Cahan, Comment,
Home is No Haven: An Analysis of Sexual Harassment in Housing, 1987 Wisconsin Law Review, 1061, 1062 n.3 (1987)Theresa Keeley, Landlord Sexual Assault and Rape of Tenants: Survey Findings and Advocacy Approaches, 2006 Clearinghouse Review Journal of Poverty Law and Policy, Volume 40, Numbers 7-8, 441-450 (November – December 2006)23
Slide24Surveys: CAHANComplaints each year from 1980 to 1985 and before 1985
65% of agencies received 288 sexual harassment complaintsOne estimate suggested between 7,000-15,000 incidents occurred nationwide from 1981 and 1986 and most not reported24
Slide25Surveys: KEELEYAdvocates from 29 states returned 112 surveys
Rape crisis centers & legal aid providers58% of respondents had at least one tenant report of sexual assault or rape in 200525
Slide26Surveys: KEELEY79% of women reported
before sexual assault, landlord did one or more of the following: refused to repair locks refused to supply heat or hot water refused to otherwise make safe despite requests (49%) sexually propositioned tenant (42%) stalked tenant (25%)
had unwanted sexual contact with tenant (58%) 26
Slide272018 SURVEY: OILIVERIStudy by former Prof. Rigel
Oilveri, former USDOJ attorneyInterviewed 100 woman at a local housing authority in Columbia, MissouriFound 1/10 low-income female tenants had been sexually harassed and/or assaulted by male landlords27
Slide282018 SURVEYA 48-year-old tenant, housing her granddaughter and paying their rent out of her Social Security Disability payments, was forced to move after refusing her landlord’s offer to make her housing “cheaper and easier” in exchange for sex. The landlord also refused to allow her male visitors and spied on her while she was in his rental property
.An 18-year-old college student, living with a roommate, refused her landlord’s solicitation in exchange for rent and expedited repairs to the rental. He tracked her comings and goings.A jobless 21-year-old, who occasionally worked as an exotic dancer, refused her landlord’s request for “oral and regular sex” when she got behind on her rent. He entered her rental randomly and without warning, including several times while she was in the shower.A 21-year-old single mother of three, employed as an aide in a facility for people with disabilities, chose not to rent a unit from a landlord who, while showing her the unit, locked the door and asked for oral sex. If she complied, he said, he would let her forgo paying a security deposit.28
Slide29“If It Was So Bad, Why Did She Stay There?”Plaintiffs in sexual harassment cases likely to be low-income women
By definition, dealing only with rentersOnly women of certain socio-economic groups (low & moderate income) will experienceIn 2004, reported women as class, 37% more likely to be poor than menSusceptible by sex & classIn 2004, single moms have extremely high poverty rateBy 2004, nationwide, women fastest growing part of population becoming homeless and “ill-housed”Jill Maxwell, Sexual Harassment At Home: Altering the Terms, Conditions, And Privileges Of Rental Housing For Section 8 Recipients, 21 Wisconsin Women’s Law Journal 223 (2006)29
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SELLERS ET AL V Southeastern Community and Family Services, JOHN WESLEY, & ERIC PENDER
Slide31WETZEL V. GLEN ST. ANDREW LIVING CENTER
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Slide32Direct Liability for DiscriminationOwn conductFailing to take prompt action to correct & end a discriminatory housing practice byemployee/agent where knew or should have known of discriminatory conduct
orthird party, where knew of conduct & had power to correct32
Slide33Direct Liability for Third Party HarassmentFailure to correct 3rd party harassment does not
require discriminatory intent or animusNegligence standardMust proveThird party created hostile environment;Housing provider knew or should have known about conduct;Housing provider failed to take prompt action to correct & end while having power to do so.33
Slide34Direct Liability:Corrective ActionPower to take prompt action to correct depends on extent of person’s control or any other legal responsibilityAction to correct may not penalize/harm (e.g. evict) aggrieved person
Not responsible for correcting every negative action by any 3rd partyAction must be violation of FH ActMust have power to correctDepends on extent of control, other legal responsibility34
Slide35Vicarious Liability for DiscriminationFollows agency law principlesLiable for actions of agent that are w/in scope of employment/agencyLiable for actions of agent outside scope of employment/agency when agent is aided in commission of acts by existence of agency relationship
These apply regardless of whether the person knew or should have known of the conduct35
Slide36Statute of LimitationsFederal Act:1 year from date of last act to file a HUD complaint2 years from date of last act to file a lawsuit
Filing a complaint with HUD or NCHRC, etc tolls the running of the time to file a lawsuit under the federal and state Fair Housing Act 36
Slide37SELLERS ET AL V Southeastern Community and Family Services, JOHN WESLEY, & ERIC PENDER37
Slide38WETZEL V. GLEN ST. ANDREW LIVING CENTER
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Slide39What can you do?Contact:
Fair Housing Project of Legal Aid of NC (1-855-797-3247) HUD (1-800-669-9777)*, and/or USDOJ (1-844-380-6178)** Specific phone numbers for reporting sex harassment
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Slide40Questions?Fair Housing Project
Legal Aid of NCwww.fairhousingnc.org1-855-797-FAIRThe material in this presentation is for information and educational purposes only and does not constitute legal advice.
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