Associations Now Liable for Third Party Violations
of Hostile Environment Harassment Laws
The Fair Housing Act (FHA) was amended in 2016 to prohibit quid pro quo (“this for that”) and hostile environment harassment in connection with the sale, rental and availability of housing. Pursuant to 24 CFR Section 100.7(a)(1)(iii), the amendment also applies conduct by a third party.
This expanded what used to be considered employment related issues to community associations. Since Condos and HOAs are considered housing providers under the FHA, this amendment to the Act adding Section 100.600 applies to community associations.
The type of harassment regulated by the Act is as follows: (i) quid pro quo harassment, which involves subjecting a person to unwelcome request or demand and making submission to the request or demand a condition related to the person’s housing; and (ii) hostile environmental harassment, which involves subjecting a person to unwelcome conduct that is sufficiently severe or pervasive such that it interferes with or deprives the person the right to use and enjoy the dwelling.
Essentially, the rule prohibits harassment or bullying based on protected classes (race, color, national origin, religion, sex, family status, and disability). Whether a hostile environment exists against a person of a protected class depends on a “totality of the circumstances” and one should consider the following factors: nature of the conduct, the context in which the incident(s) occurred; the severity, scope, frequency, duration, and location of the conduct, and the relationships of the persons involved.
The rule does not require proof of psychological or physical harm in order to determine the existence of the harassment. It also provides that a single incident may constitute a discriminatory housing practice if the incident is sufficiently severe to create a hostile environment or provides evidence of quid pro quo. Finally, it also prohibits retaliation against anyone for reporting a discriminatory housing practice to a housing provider or other authority.
One of the most important aspects of the harassment law involves its creation of a third party liability rule – which provides that an association may be held liable as a “third party” if it can exercise control to try to stop the harassment, but fails to do so. Accordingly, not only may an association be held liable for its own conduct, but also liable for failing to take prompt action to correct discriminatory practices of employees/agents and failing to take prompt action to correct the discriminatory practices of third parties (i.e. other owners or board members) where the Association knew or should have known about the discriminatory practice. Based on this concept, an association may be held liable if a board member, agent, employee or other owner creates a hostile environment that harasses a resident who is a member of a protected class AND the resident doesn’t even have to complain to the Association for it to be on the hook. The Association may be held to the “should have known” standard if a board member is aware of certain discriminatory practice and fails to take appropriate action.
For additional information, refer to the Office of the Federal Registrar pertaining to this new Rule which went into effect September 14, 2016.
Alessandra Stivelman, shareholder and partner at Eisinger Law is AV rated and focuses her practice on community association and real estate law. She can be reached at (954) 894-8000 x 304 or astivelman@eisingerlaw.com. Eisinger Law, is a full service Florida law firm focusing on community association law, real estate law, developer representation, commercial litigation and insurance law. Visit eisingerlaw.com.
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