Fair Housing PRIMER: SEX DISCRIMINATION

1. Fair Housing PRIMER: SEX DISCRIMINATION Fair Housing Project Legal Aid of North Carolina 2101 Angier Ave., Ste 300 Durham, NC 27703 1-855-797-FAIR www.FairHousingnc.org

2. The 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.

3. Laws 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

4. Types of Property Covered • The FHA broadly applies to “dwellings,” which includes almost every residential rental unit • Single and multi-family housing • houses, apartments & condos • Group homes • Shelters • Migrant housing • Assisted living housing • Long-term transient lodging

5. Who 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 employees • Real estate agencies, agents, sellers, banks, lending institutions, and insurance companies • Homeowners Associations and Condo Boards • Neighbors and other third parties (individual, vicarious and third-party liability)

6. Protected Classes • The federal FHA prohibits discriminatory conduct against persons based on: • race • color • national origin • religion • sex (gender) • Non-conformity with gender stereotypes • familial status (families w/ children) • handicap (disability)

7. HOUSING DISCRIMINATION • Treating differently = disparate treatment • Facially neutral rule disproportionately impacts one of protected groups = disparate impact • Making a discriminatory statement • Coerce, intimidate, harass, retaliate, or otherwise interfere • Failure to make a reasonable accommodation and/or reasonable modification based on person’s disability • Failure to adhere to accessibility building requirements

8. Sex Discrimination

9. Sex Discrimination Different treatment based on sex/gender prohibited • Can’t refuse to rent because tenant is a female • Can’t charge a higher security deposit because tenant is male Includes non-conformity with gender stereotypes • If man does not act/dress “masculine enough” • If woman does not act/dress “feminine enough” • Virtually same as “gender identity”

10. 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

11. 2012 HUD Equal Access Rule 2012 Equal Access Rule: Access to HUD Programs regardless of sexual orientation or gender identity • Effective March 5, 2012 Applies to HUD-assisted or HUD-insured housing • Includes 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 identity • 24 CFR 5.105(a)(2)

12. Pregnancy and Maternity Leave Discrimination Pregnancy and maternity leave cannot be reasons for denying housing Includes • refusing to rent • different terms/conditions • refusing to provide insurance or mortgage loan Constitutes sex and familial status discrimination

13. Pregnancy and Maternity Leave Discrimination Since 2010 > 170 complaints of pregnancy or maternity leave discrimination by mortgage lenders • Cannot have policies to disregard a borrower’s income just because she is on maternity leave for purposes of qualifying for a loan • Cannot have policies to condition approval of loan application on a woman returning to work after maternity leave

14. Pregnancy and Maternity Leave Discrimination Cornerstone Mortgage Company (2011) • $15,000 for complainant + $750,000 fund Mortgage Guarantee Insurance Corporation (2012) • $511,250 fund + $38,750 civil penalty Bank of America (2012) • $30,000 to complainant, $16,000 to atty; $15,000 to FH group; $100,000 fund PNC Mortgage (2013) • $15,000 to couple + $7,500 each for other victims in 8 states SunTrust Mortgage, Inc. (2013) • $18,000 each to 2 couples FirstBank Mortgage Partners (2014) • $35,000 to couple Mountain America Credit Union (2014) • $10,000 to borrower; $15,000 to FH organization Bank of America (2014) • $45,000 to 2 couples & real estate agent

15. DV & Disparate Impact Claims Statistics show majority of DV victims are women. discrimination against victims of dv disproportionate impact on women possible sex discrimination under FHA • 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 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)

16. Sex 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

17. Harassment: 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)

18. Harassment Can be based on any protected class • Race, color, religion, national origin, sex, familial status, disability Can involve any part of housing transaction, including • Conditioning availability or causing person to vacate or abandon efforts to secure dwelling • Conditioning terms, privileges, services • Representing unit unavailable

19. Harassment • Types • Can be written, verbal, or other conduct • Does not require physical contact • Single incident may be enough where • Incident is sufficiently severe to create a hostile environment or • Incident evidences a quid pro quo

20. Quid 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; or • availability, 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)

21. Hostile 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; or • availability, terms, or conditions or a residential real estate-related transaction. • 24 CFR 100.600(a)(2)

22. Hostile 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 involved • Does not require showing psychological & physical harm • But such harm may be relevant & relate to damages • Evaluate from perspective of “reasonable person in the aggrieved person’s position”

23. Surveys • Regina 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)

24. Surveys: CAHAN • Complaints each year from 1980 to 1985 and before 1985 • 65% of agencies received 288 sexual harassment complaints • One estimate suggested between 7,000-15,000 incidents occurred nationwide from 1981 and 1986 and most not reported

25. Surveys: KEELEY • Advocates from 29 states returned 112 surveys • Rape crisis centers & legal aid providers • 58% of respondents had at least one tenant report of sexual assault or rape in 2005

26. Surveys: KEELEY • 79% 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%)

27. 2018 SURVEY: OILIVERI • Study by former Prof. RigelOilveri, former USDOJ attorney • Interviewed 100 woman at a local housing authority in Columbia, Missouri • Found 1/10 low-income female tenants had been sexually harassed and/or assaulted by male landlords

28. 2018 SURVEY • A 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.

29. “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 renters • Only women of certain socio-economic groups (low & moderate income) will experience • In 2004, reported women as class, 37% more likely to be poor than men • Susceptible by sex & class • In 2004, single moms have extremely high poverty rate • By 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)

30. SELLERS ET AL V Southeastern Community and Family Services, JOHN WESLEY, & ERIC PENDER

31. WETZEL V. GLEN ST. ANDREW LIVING CENTER

32. Direct Liability for Discrimination • Own conduct • Failing to take prompt action to correct & end a discriminatory housing practice by • employee/agent where knew or should have known of discriminatory conduct or • third party, where knew of conduct & had power to correct

33. Direct Liability for Third Party Harassment • Failure to correct 3rd party harassment does not require discriminatory intent or animus • Negligence standard • Must prove • Third 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.

34. Direct Liability:Corrective Action • Power to take prompt action to correct depends on extent of person’s control or any other legal responsibility • Action to correct may not penalize/harm (e.g. evict) aggrieved person • Not responsible for correcting every negative action by any 3rd party • Action must be violation of FH Act • Must have power to correct • Depends on extent of control, other legal responsibility

35. Vicarious Liability for Discrimination • Follows agency law principles • Liable for actions of agent that are w/in scope of employment/agency • Liable 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 conduct

36. Statute of Limitations • Federal Act: • 1 year from date of last act to file a HUD complaint • 2 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

37. SELLERS ET AL V Southeastern Community and Family Services, JOHN WESLEY, & ERIC PENDER

38. WETZEL V. GLEN ST. ANDREW LIVING CENTER

39. What 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

40. Questions? Fair Housing Project Legal Aid of NC www.fairhousingnc.org 1-855-797-FAIR The material in this presentation is for information and educational purposes only and does not constitute legal advice.