New rules for quid pro quo, hostile environment in housing

The United States Department of Housing and Urban Development’s Final Rule on the Fair Housing Act, which became effective Oct. 14, will impose direct or vicarious liability upon individuals for their own conduct, and for the conduct of their employees or agents, which result in a discriminatory housing practice.

The new rule also creates new forms of discriminatory housing practices, which are cause by harassment based on a person’s race, color, religion, sex, handicap, familial status or national origin. The new rule will penalize two types of harassment: quid pro quo (this for that) and hostile environment. Quid pro quo harassment is an unwelcome request to engage in conduct that is, either explicitly or implicitly, a condition of providing housing or housing-related services. For example, if a landlord agrees to repair a tenant’s air conditioner in exchange for a date, then that could be quid pro quo harassment. Even if the victim agrees to engage in the conduct, this type of behavior is still a form of harassment.

Harassment can also be created through a hostile environment. This occurs when the victim experiences conduct that is so severe that it interferes with the use or enjoyment of the dwelling or its facilities, or with the availability of real-estate related services. If your real estate brokerage has a large “Irish need not apply” sign in the front window, then this may make an individual feel as though there is hostility based on his or her national origin. Whether conduct creates a hostile environment will be determined by weighing all of the relevant factors, but the aggrieved individual does not need to prove that a pattern exists; one instance of harassment can be enough to attach liability.

This low tolerance will likely cause difficulty for housing providers, who now face the possibility of being directly liable for not only their own actions and the actions of their employees and agents, but also for the actions of third parties. The HUD rule imposes liability if the person “knew or should have known of the discriminatory conduct and had the power to correct it.” Further, the corrective actions taken cannot penalize or harm the aggrieved individual. So, if a woman complains about being subjected to crude comments every time she uses the community weight room, the management cannot solve the problem by evicting her or not renewing her lease. The management instead must do what it can to end the discriminatory behavior by the third-party.

Members – particularly those who are property managers and landlords – should be very aware of these new restrictions. Anyone who engages in discrimination in the sale or rental of housing based on a protected class can not only be liable for his or her own actions, but also for the actions of his or her employees and agents and the conduct of third-parties. It would be prudent to review your company’s housing policies with all agents, as well as with landlords and property owners you represent, to ensure compliance with HUD’s rule.