Sexual Orientation Discrimination and the Fair Housing Act
The Seventh Circuit Court of Appeals recently reinstated a lawsuit brought by a lesbian resident of a private community who alleged the staff of the housing community failed to address her complaints of abuse and discrimination from the other residents and actively retaliated against her violating the Fair Housing Act (FHA). The Court held that the FHA “creates liability against a landlord that has actual notice of tenant-on-tenant harassment based on a protected status, yet chooses not to take any reasonable steps within its control to stop that harassment.” Wetzel v. Glen St. Andrew Living Community, LLC, 2018 WL 4057365 (7th Cir. 2018). The Court’s prior ruling in Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017), that discrimination based on sexual orientation qualifies as discrimination based on sex set the basis for this case as the issue of whether the harassment was based on a protected status was settled.
The Plaintiff alleged that the other residents verbally berated her with profane language repeatedly. She also alleged that the residents physically assaulted her by ramming into her scooter and knocking her from a ramp, running into a dining table at which she sat so it flipped on top of her, striking her in the back of the head resulting in a bump and black eye, spitting on her, and intentionally knocking into her scooter. The Plaintiff made numerous reports to the staff of the residence. The staff did not take actions to prevent the reported conduct and portrayed her as being dishonest. Taking the Plaintiff’s allegations to be true, the Court found the staff took affirmative steps in retaliation against her. She was moved to a less desirable dining room, barred from the lobby, and her cleaning services stopped. Further, they falsely accused her of smoking in her room multiple times, in one instance waking her up and slapping her in the face.
In response to the defendants’ arguments that the action must be dismissed, the Seventh Circuit held that the protections under the FHA continue post-acquisition of the residence, finding the FHA “prohibit[s] discriminatory harassment that unreasonably interferes with the use and enjoyment of a home.” The Court continued on by determining whether the harassment was severe or pervasive enough to interfere with the enjoyment of the residence. Finding that it was, the Court held determining this is based on “the totality of the circumstances, including the frequency of the discriminatory conduct, its severity, and whether it is physically threatening or humiliating rather than merely offensive.” In this case the Plaintiff alleged harassment that was both severe and pervasive enough to meet this standard.
The Court concluded that there was a basis to impute liability on the defendants. The Court stated the test to impute liability is to consider the defendants and determine whether they had actual knowledge of the harassment and whether they were deliberately indifferent to it. Last, the Court rejected defendants’ claim that plaintiff had to prove discriminatory animus in order to bring a claim of retaliation. The plaintiff must only show “(1) she engaged in protected activity; (2) she suffered an adverse action; and (3) there was a causal connection between the two.”
Prepared by Megan Gehring of Mann Law, P.C. Attorneys at Law, www.rmannlawoffice.com
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This blog does not constitute legal advice, nor does it establish an attorney client relationship. This is for general information purposes as in most legal situations the facts and terms of an agreement between the parties can affect the result.