Preventing Sexual Harassment in Housing
Aalberts, Robert J., Journal of Property Management
Sexual harassment of tenants is a potentially serious legal and ethical problem that property managers must deal with.
In an article which appeared in the January/February 1992 issue of the Journal of Property Management, Aalberts and Clauretie discussed the application of the Fair Housing Act, the precedent-setting case of Shellhammer v. Lewallen (770 F.2d 167 [6th Cir. 1985]), vicarious liability for landlords, and remedies for tenants who are sexually harassed.
Since that article was written, there has been a modest proliferation of cases that have similarly ruled that landlords and/or their managers are liable for sexual harassment of tenants. In early 1992, for example, in two particularly costly companion cases, Fiedler v. Dana Properties and U.S. v. Dana Properties (7 Fair Housing-Fair Lending (P.H) Section 9.1 [E.D. Cal. Jan. 27, 1992l), the defendants ended up settling with the victims for an exorbitant $1.65 million as a consequence of a series of incidents of sexual harassment of tenants.
These cases may be only the tip of the iceberg. As researcher Regina Cahan reported in a 1987 Wisconsin Law Review article, sexual harassment is very widespread, but is simply not reported because tenants are not aware of what sexual harassment is and that it is against the law.
There is also little or no knowledge of the fact that there are various public and private means of enforcing the law against the perpetrators under both state and federal statutes, as well as under the common law.
Clearly, property managers must initiate a policy to prevent sexual harassment of their tenants for both legal and ethical reasons. To ignore the problem is to risk incurring potentially high judgments, alienating valuable tenants, and suffering embarrassing publicity.
In addition, sexual harassment can be devastating to victimized female tenants, who, as reported by Cahan in her research, suffer man of the same symptoms as rape.
The purpose of this article is to present a model policy for preventing and dealing with sexual harassment of tenants.
DEFINITIONS OF SEXUAL HARASSMENT IN HOUSING
In order to properly implement a policy for controlling sexual harassment in housing, it is necessary to understand it. Unfortunately, as will be apparent in the following discussion, there often are no easy or universally accepted standards.
"Quid pro quo" harassment occurs when five elements are proven. First, the plaintiff must belong to a protected classification. Second, the plaintiff must be the object of sexual favors that are not welcomed. Third, the request for the favors is made because of the plaintiff's gender. Fourth, the plaintiff's reaction to the request for sexual favors negatively affects one or more tangible terms, conditions, or privileges of the tenancy. Lastly, if liability is asserted against the owner, it must be proved that the owner knew or should have known and failed to correct the situation promptly.
Quid pro quo cases are relatively easy to distinguish. An example of this kind of sexual harassment would be a manager refusing to fix the tenant's refrigerator, or threatening to raise the rent if she does not submit to his request for sex.
"Hostile-environment" sexual harassment is much more difficult to define. In fact, it has become a constant source of debate and commentary--especially since such media events as the Clarence Thomas/Anita Hill hearings, Senator Robert Packwood's highly publicized travails, and the Navy Tailhook investigations. All of these apparently involved the hostile environment kind of sexual harassment.
Under Shellhammer, five elements were enunciated for proving a hostile-environment case. First, the plaintiff must be in a protected classification. Second, she must be subjected to unwelcome and extensive sexual favors and other verbal or physical conduct of a sexual nature, which have not been requested by the plaintiff and which are viewed as undesirable or offensive. …