New FHA Harassment Rule & Policy Recommendation
On October 14, 2016, the US Department of Housing and Urban Development’s (HUD) new rule on quid pro quo and hostile environment housing practices under the Fair Housing Act (FHA) goes into effect. This new rule creates liability for housing providers, including homeowner associations, for failing to take reasonable actions to address these types of discrimination.
Quid pro quo (“this for that”) harassment can occur if a homeowner association or its agents, employees, and possibly third parties condition the availability of housing—whether for sale or rental—or the terms, conditions, or privileges of a sale or rental upon compliance with an unwelcome request or demand. Hostile environment harassment includes unwelcome conduct directed at an individual because of their status or membership in a protected class. To reach the threshold of being considered hostile environment harassment, the conduct must be sufficiently severe or pervasive as to interfere with the availability, terms, privileges, or use and enjoyment of the dwelling when taking the totality of the circumstances into account.
Whether or not certain conduct is considered “sufficiently severe or pervasive” is based on a “reasonable person” standard. This new rule does expose homeowner associations to liability for actions of their agents, employees, and potentially third parties if the Association knew or should have known of the discrimination and did not take reasonable and prompt corrective action to address the conduct. Whether or not a homeowner association may take reasonable and prompt corrective action depends on whether it has the authority to do so under the law or its governing documents.
There certainly must be a fine line for homeowner associations to ensure they are taking reasonable action to address quid pro quo and hostile environment harassment when appropriate, while avoiding the pitfalls of becoming embroiled in nondiscriminatory disputes between homeowners and/or residents. The attorneys at WesternLaw Group LLC are happy to provide assistance with any homeowner association that has questions or concerns about this new rule, and we can help your Association prepare for and respond to potential harassment covered by this new rule. For more information about this new FHA rule, please see this link.