Trial Magazine

She lost her job. Her children need clothes. The refrigerator is empty. The car needs gas. Rent is due in three days. Unfortunately, there are landlords, property managers, and apartment maintenance workers who see tenants in this situation as an opportunity. Such a landlord might offer to waive the rent in exchange for sex. A maintenance worker or property manager might refuse to fix a leak unless the tenant provides compromising photos. This kind of abuse can give tenants a tough choice: give in or get out. But no one should have to endure sexual abuse to keep a roof over their or their children’s heads. And no one should have to give up their home to stay safe.

Sexual harassment, assault, and abuse by housing providers is everywhere. It seems to happen most often to the most economically vulnerable tenants, like low-income single mothers. A study published in 2018 based on interviews of randomly selected clients of a Missouri public housing authority found that 10% had experienced actionable sexual harassment.¹ But it also happens to plenty of others, including women with stable jobs who live with big families. It’s everybody’s problem. Thankfully, the law provides redress.

The Federal Fair Housing Act

When it comes to combatting sexual harassment in housing, there are many potential legal claims to consider. Among these, the federal Fair Housing Act (FHA) stands apart in terms of usefulness.² The act was signed into law as part of the Civil Rights Act of 1968, just seven days after the assassination of Martin Luther King Jr. Congress amended it in 1974, adding sex as a protected status and opening up the possibility of lawsuits based on sexual harassment. In the past 50 years, case law has come to recognize at least four common ways sexual harassment can violate the FHA.

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Any unwanted verbal or physical conduct that is severe or pervasive enough to interfere with a tenant's use or enjoyment of their home violates the FHA.

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Hostile environment sexual harassment. Any unwanted verbal or physical conduct that is severe or pervasive enough to interfere with a tenant’s use or enjoyment of their home violates the FHA.³ One incident, if sufficiently severe, is enough. No physical contact is required, but it certainly adds heft to claims. Courts look to the totality of the circumstances.

For example, the Eastern District of California denied summary judgment in a hostile environment claim with no touching and just two incidents of a property manager propositioning a tenant.⁴ It was significant that one incident was inside the home and that the property manager’s demeanor was intimidating.⁵

Quid pro quo harassment. Housing providers violate the FHA when they make unwelcome requests for or demand sexual favors in exchange for some kind of housing benefit.⁶ Think, “sex for rent” or “nude pics for a bigger apartment.” Making the request or demand violates the act by itself, whether the tenant concedes to the request or not.⁷

Constructive eviction or other kinds of retaliation. Sometimes landlords evict tenants who refuse their sexual advances. Those evictions violate the FHA.⁸ The retaliation can also be something short of eviction: loss of privileges around the property, raised rent, different or increased late or repair fees, and so on. If the harasser makes adverse changes to the tenant’s housing because they refused to give in to a sexual demand, that’s actionable retaliation.

Sexually harassing statements. Verbal or written sexually harassing statements violate the FHA.⁹ While most fair housing cases involving discriminatory statements involve advertising, the act’s broad language covers more than ads. It covers all written and oral statements that indicate a preference, limitation, or discrimination, or an intention to discriminate, based on sex.¹⁰ A landlord’s text message saying, “Have sex with me, or I’ll evict you,” fits the bill.¹¹

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Vicarious liability can extend to the harasser's employer and even the property owner.

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Potential Defendants and Vicarious Liability

The Fair Housing Act holds the harasser liable for their own actions¹² and provides for expansive vicarious liability.¹³ This vicarious liability can extend to the harasser’s employer and even the property owner.¹⁴ A common grouping of defendants would be the property manager who committed the harassment, the property management company that employed the manager, and the building owner. Under the FHA, the property manager is the agent of both the management company and the owner, making both vicariously liable under most circumstances.¹⁵

This is a key difference from many state laws—and a big reason to bring an FHA claim—even if you’d prefer to stay in state court and avoid removal to federal court. Under some states’ laws, sexual misconduct is almost always outside the scope of employment or the law of agency.¹⁶ That would mean that neither the property management company nor the property owner could be held liable for harassment by a property manager, maintenance person, or other agent.

But the FHA is different. It does not just adopt the agency law from whatever state your client lives in; it applies its own federal standard.¹⁷ That standard makes the principal—that is, the management company and owner—liable for the harasser’s conduct, as long as the agency relationship helped the harasser harass the plaintiff.¹⁸ This standard is rarely tough to meet: Without the power given to them by their job, it is unlikely that the harasser would have had any opportunity to meet, much less harass, the plaintiff.¹⁹ It can be enough that the harasser’s position allows them to “visit” the plaintiff’s apartment.²⁰

Apart from vicarious liability, the FHA also makes employers and owners liable for the harassment of others when they have notice of it and fail to take reasonable measures to put a stop to the harassment.²¹ The act has a two-year statute of limitations for claims brought in court,²² and it allows for compensatory damages, punitive damages, and attorney fees and costs if your client prevails.²³

Other Legal Theories

When you consider a sexual harassment in housing case, the Fair Housing Act should almost always be part of your complaint. Note, though, that there are three main categories of other claims to consider.

State and local housing law. First, investigate whether your state, city, or other municipality has a housing discrimination law. Most states, and even many cities and counties, do. These laws often mirror the federal Fair Housing Act, but they can offer important advantages, including statutory damages, longer statutes of limitation, and so on. It’s always worth checking.

State tort law. Second, look to state tort law as an important source of supplemental claims. The conduct that gives rise to the housing-specific claims may also give rise to claims for assault, battery, trespass, false imprisonment, invasion of privacy, stalking, intentional infliction of emotional distress, and additional claims.

There’s also negligence. If the property owner, management company, or other responsible entity knew about the harassment your plaintiff endured (or another resident’s previous complaints of harassment) but did nothing to stop the harasser, and the harasser then hurt the plaintiff again, you may have a negligence claim. Negligence (and sometimes trespass and other state law torts) might trigger the property owner or management company’s insurance coverage.

Trafficking Victims Protection Act. Finally, in the most serious cases, the federal Trafficking Victims Protection Act (TVPA) might provide a remedy.²⁴ This criminal statute offers a civil right of action. Among other things, it prohibits forced labor, including sexual labor.²⁵ If the harasser coerced the plaintiff into providing sexual labor with threats of an illegal eviction, violence, or other serious threats or force, you might want to bring a TVPA claim.²⁶

The TVPA has advantages over other laws. It has an extraordinarily generous 10-year statute of limitations.²⁷ It also has a very broad, albeit complicated, set of standards defining who might be liable for each violation.²⁸ These standards might offer a way to bring in defendants that might otherwise escape liability.

Practical Considerations

Digital evidence. A tenant’s phone might provide most of the evidence you need to make your case. Some harassers are sly enough to avoid sending harassing text messages, but many aren’t. A text message that says, “Have sex with me, and you’ll never pay rent again,” can establish liability for quid pro quo harassment. Be sure to review the messages between the harasser and your client early in the case and preserve them in a format that will be useful at depositions and trial and that is admissible in your jurisdiction.

Also look at the plaintiff’s messages with friends and family from the time of the harassment. The key defenses in these cases are denial (“I never harassed her”) and consent (“She was into me”). Harassing text messages do away with the denial defense, but the consent defense is more complicated.

Some harassers genuinely terrify their tenants, instilling a fear of eviction and violence. Some tenants just want to avoid confrontation. Whatever the reason, many tenants do not respond to harassing messages with strong rejections. They ignore, redirect, or appear to play along. Defense lawyers will argue that anything along those lines is evidence of consent. Reality is messier.

The plaintiff’s text messages to friends and family, and the testimony of those folks, can put ambiguous messages in context. They can reveal what the plaintiff truly thought about the harassment. While the defense can point to the text exchanges between the harasser and the plaintiff to argue that the plaintiff consented to the behavior, it’s more difficult for the defense to do so when text messages from the same time period between the plaintiff and their friends and family make it clear that the conduct was unwelcome.

Now, a word of caution about audio and video recordings. Some tenants will record the harassment discreetly. They may feel that without “hard evidence” no lawyer will help them. Although this can provide powerful evidence, there is a risk: Some states’ privacy laws prohibit recording people without their consent. These laws can give rise to civil or criminal liability. The last thing you want is a counterclaim or criminal charge based on your plaintiff’s recording of a phone call or an encounter. Always consider the relevant state’s recording laws when assessing a claim and advising a client.

‘Me too’ witnesses. A “me too” witness might be the next most powerful evidence of liability. Most harassers are serial predators. Your best witness might be another tenant or tenants who can testify that the same thing that happened to your client also happened to them. Despite Federal Rule of Evidence 404 and other rules against so-called propensity evidence, “me too” witness testimony is often admissible.²⁹

How do you find these witnesses? It depends on the type of housing and the harasser’s relationship to the housing. Are you dealing with a harassing landlord who holds properties in their own name? Or is the harasser a maintenance worker in a massive apartment building? “Me too” witnesses are important, so your prefiling investigation should include a full search for them. Here are some guidelines.

First, find all properties connected to the harasser. Track down all the properties that a landlord owns. Find all the units or properties that a property manager handles. Use property websites; county tax assessor and recorder websites; databases, such as idiCORE, that allow you to search deep pools of data for individuals’ contact information; the plaintiff’s knowledge; and any other source you can think of to create a list of properties.

Once you have a working list of properties, identify as many current and former tenants of those addresses as possible. You can buy mailing lists that vendors sell for advertising purposes that will show the names and associated apartment numbers for large apartment buildings. You can also use database services such as idiCORE and others that search public records, social media, and other online sources to compile a list of current and former residents of specific addresses.

Eviction records can lead you to “me too” witnesses. Some landlords will evict tenants who refuse their advances. Those tenants sometimes file answers to eviction complaints that describe the harassment. Previous tenants also sometimes report sexual harassment to the police. You can obtain police reports connected to particular addresses or names under most states’ public information laws.

And don’t forget to ask your client. Tenants often know other tenants who have been treated the same way. The goal is to go from knowing which properties are associated with the harasser to knowing which people have interacted with the harasser.

Next, interview as many current and former residents of the properties as you can. Call or write to ask about their experiences with the harasser. Keep in mind, anything you send or say can be discoverable. Often, you’ll find a handful of tenants who describe sexual harassment like what your client experienced. Consider collecting short, recorded interviews or declarations of these “me too” witnesses.

If litigation moves forward, consider taking their depositions early and on video to preserve them for trial. Establish the basic facts of their tenancy and the harassment. If the “me too” witness does not know your client, document that, too. That can help you fight a common defense argument, which is that all these women conspired to create false accounts of harassment.

Beware Employment Case Law

The legal frameworks for quid pro quo and hostile environment harassment claims were first developed in employment discrimination cases under Title VII of the Civil Rights Act of 1964. The Fair Housing Act then borrowed both frameworks to develop its own case law. But that doesn’t mean that Title VII case law is persuasive in housing claims, as some defendants argue.

To defeat housing harassment claims, defendants may rely on precedent from Title VII holding that particular conduct does not constitute a quid pro quo or that it is not bad enough to create a hostile environment. But being harassed in the home is different from being harassed in the workplace.

Courts addressing housing harassment claims have therefore refused to say that, for example, just because a few incidents of a certain type of harassment were not sufficiently severe enough to make out a hostile work environment claim, it means that those same incidents, if they had taken place in the home, would not make out a hostile housing environment claim.³⁰ Context matters.

And there is another important difference between Title VII and the FHA: administrative exhaustion. Under Title VII, a plaintiff must make an administrative complaint before suing in court.³¹ Not so under the FHA. An FHA plaintiff can make an administrative complaint but can also go straight to court.³²

Sexual harassment in housing is as common as it is terrible. Handling these cases is an opportunity to help people who have been harmed, remove harassers from their feeding ground, and protect future tenants.

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Tom Kayes is of counsel at Loevy + Loevy in Chicago and can be reached at kayes@loevy.com. Copyright © 2024 Tom Kayes and the American Association for Justice^®.

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Notes

1. Rigel C. Oliveri, Sexual Harassment of Low-Income Women in Housing: Pilot Study Results, 83 Mo. L. Rev 597, 599 (2018).
2. 42 U.S.C. §§3601–3619.
3. 24 C.F.R. §100.600(a)(2).
4. Salisbury v. Hickman, 974 F. Supp. 2d 1282, 1292–93 (E.D. Cal. 2013).
5. Other examples of viable hostile environment claims include Quigley v. Winter, 598 F.3d 938, 947 (8th Cir. 2010) (affirming jury verdict on hostile environment claim); Monus v. Riecke, 2021 WL 1721010, at *6 (E.D. La. Apr. 30, 2021) (denying motion to dismiss single-incident hostile environment claim); Noah v. Assor, 379 F. Supp. 3d 1284, 1292 (S.D. Fla. 2019); West v. DJ Mortgage, LLC, 164 F. Supp. 3d 1393, 1396 (N.D. Ga. 2016) (denying motion to dismiss); Glover v. Jones, 522 F. Supp. 2d 496 (W.D.N.Y. 2007) (denying summary judgment); Memorandum Opinion at 4, 10, Myers v. Dist. of Columbia Hous. Auth. (D.D.C. Aug. 29, 2022) (denying summary judgment) (No. 20-cv-700).
6. 24 C.F.R. §100.600(a)(1).
7. Quigley, 598 F.3d at 948 (affirming jury verdict based on implied quid pro quo exchanging sexual favors for the return of a security deposit); Krueger v. Cuomo, 115 F.3d 487, 489–90 (7th Cir. 1997) (affirming ALF’s quid pro quo finding based on sex for rent).
8. 42 U.S.C. §3604(a); 42 U.S.C. §3617; 24 C.F.R. §100.65(b)(5); 24 C.F.R. §100.400(c).
9. 42 U.S.C. §3604(c).
10. 42 U.S.C. §3604(c); 24 C.F.R. §100.75(b); White v. U.S. Dep’t of Hous. & Dev., 475 F.3d 898, 904 (7th Cir. 2007); Jancik v. Dep’t of Hous. & Urban Dev., 44 F.3d 553, 556 (7th Cir. 1995).
11. Glagola v. MacFann, 2023 WL 7271340 (W.D. Pa. Nov. 3, 2023) (denying motion to dismiss discriminatory statement’s claim based on landlord’s sexual harassment).
12. 24 C.F.R. §100.7(a) (direct liability), §100.7(b) (vicarious liability).
13. Meyer v. Holley, 537 U.S. 280, 285 (2003) (“[I]t is well established that the Act provides for vicarious liability.”); Cleveland v. Caplaw Enters., 448 F.3d 518, 522 (2d Cir. 2006); Cabrera v. Jakabovitz, 24 F.3d 372, 386 n. 13 (2d Cir. 1994); Harris v. Itzhaki, 183 F.3d 1043, 1054 (9th Cir. 1999); Chicago v. Matchmaker Real Estate Sales Ctr., Inc., 982 F.2d 1086, 1097 (7th Cir. 1992).
14. 24 C.F.R. §100.7(a)(1)(ii) (direct liability for employees or agents); §100.7(b) (vicarious liability for employees and agents).
15. Examples of vicarious liability in sexual harassment cases under the FHA include: Trujillo v. Amity Plaza, LLC, 2024 WL 358129, at *6 (D. Colo. Jan. 31, 2024) (denying motion to dismiss claim that property owner was liable for maintenance worker’s harassment under aided-by-agency theory); Been v. Palais Villa, LLC, 2021 WL 8895168, at *2 (C.D. Cal. Nov. 30, 2021) (denying motion to dismiss claim that property owner was vicariously liable for maintenance worker’s harassment under aided-by-agency theory); United States v. Thong Cao, 2019 WL 5576954, at *2 (D. Kan. Oct. 29, 2019) (denying summary judgment motion against claim that property owner was vicariously liable for property manager’s harassment under aided-by-agency theory); Metro. Fair Hous. Council of Oklahoma, Inc. v. Pelfrey, 292 F. Supp. 3d 1250, 1253 (W.D. Okla. 2017) (denying summary judgment motion against claim that trustee was vicariously liable for property manager’s sexual harassment under aided-by-agency theory); West, 271 F. Supp. 3d at 1254 (denying summary judgment motion against claim that owner was vicariously liable for rental agent’s harassment under aided-by-agency theory); Boswell v. Gumbaytay, 2009 WL 1515872, at *3 (M.D. Ala. June 1, 2009) (granting default judgment against property owner for property manager’s harassment under aided-by-agency theory); Glover, 522 F. Supp. 2d at 506 (W.D.N.Y. 2007) (denying summary judgment motion against claim that owner was vicariously liable for maintenance worker’s harassment under aided-by-agency theory).
16. E.g., A.M. v. Holy Resurrection Greek Orthodox Church of Brookville, 2020 N.Y. Slip Op. 30535, 9 (N.Y. Sup. Ct. 2020) (“In cases where an employee commits sexual abuse, courts have routinely held that such conduct falls outside the scope of the employment.”) (citing N.X. v. Cabrini Medical Ctr., 97 N.Y.2d 247 (N.Y. 2002) and Deloney v. Bd. of Edu., 281 Ill. App. 3d 775, 783 (Ill. App. Ct. 1996) (“generally, acts of sexual assault are outside the scope of employment.”)).
17. “[T]o avoid predicating liability for . . . violations [of the Act] on the vagaries of state law, the question whether an agency relationship exists for purposes of the Fair Housing Act is determined under federal law.” Caplaw Enters., 448 F.3d at 522 (quoting Cabrera, 24 F.3d at 386 n. 13). See also Harris, 183 F.3d at 1045; Matchmaker Real Estate Sales Ctr., Inc., 982 F.2d at 1097.
18. Thong Cao, 2019 WL 5576954, at *2; West, 271 F. Supp. 3d at 1354–55 (denying owner’s summary judgment motion because rental agent was aided by his authority in his harassment); Glover, 522 F. Supp. 2d at 506 (“if the employee was aided in accomplishing the tort by the existence of the agency relation.”) (denying summary judgment to owner under “aided” theory).
19. The cases in endnote 15 are all examples of this legal theory.
20. E.g., Glover, 522 F. Supp. 2d at 506.
21. 24 C.F.R. §100.7(a)(ii)–(iii); Wetzel v. Glen St. Andrew Living Cmty., LLC, 901 F.3d 856, 859 (7th Cir. 2018) (“We read the FHA more broadly. Not only does it create liability when a landlord intentionally discriminates against a tenant based on a protected characteristic; it also creates liability against a landlord that has actual notice of tenant-on-tenant harassment based on a protected status, yet chooses not to take any reasonable steps within its control to stop that harassment.”).
22. 42 U.S.C. §3613(a)(1).
23. 42 U.S.C. §3613(c).
24. 18 U.S.C. §1589 (prohibiting forced labor); 18 U.S.C. §1595 (private, civil right of action).
25. Bistline v. Parker, 918 F.3d 849, 872 (10th Cir. 2019); Ricchio v. McLean, 853 F.3d 553, 556 (1st Cir. 2017); United States v. Kaufman, 546 F.3d 1242, 1263 (10th Cir. 2008).
26. Glagola, 2023 WL 7271340, at *5–*6 (denying motion to dismiss TVPA claims based on landlord’s sexual harassment).
27. 18 U.S.C. §1595(c).
28. 18 U.S.C. §1595(a) (defining whom the victim of a violation may sue as “the perpetrator [ ] or whoever knowingly benefits, or attempts or conspires to benefit, financially or by receiving anything of value from participation . . . ”).
29. Hamilton et al. v. Lanier, 464 F. Supp. 3d 1379, 1382 (S.D. Ga. May 8, 2020) (denying housing harassment defendant’s motion to exclude testimony from “me too” witnesses); Griffin v. Finkbeiner, 689 F.3d 584, 598 (6th Cir. 2012); Quigley, 598 F.3d at 951 (“Affording the district court broad discretion, we hold the district court properly performed its gatekeeping function and did not abuse its discretion in admitting the evidence of Winter’s three former tenants.”); Warren v. Solo Cup Co., 516 F.3d 627, 632 (7th Cir. 2008); Heyne v. Caruso, 69 F.3d 1475, 1480 (9th Cir. 1995).
30. West, 271 F. Supp.3d at 1354–55; Bartlett v. Hames, 2023 WL 403865, at *33 (N.D. Ala. June 15, 2023) (“Against that backdrop, the flaw in conflating application of Title VII’s legal framework with unqualified reliance on Title VII cases for purposes of factual comparison becomes clear.”); Salisbury, 974 F. Supp. 2d at 1292.
31. Chaidez v. Ford Motor Co., 937 F.3d 998, 1004 (7th Cir. 2019) (“Before bringing a Title VII claim, a plaintiff must first exhaust his administrative remedies by filing charges with the EEOC and receiving a right to sue letter.”).
32. 42 U.S.C. §3613(a)(2) (“An aggrieved person may commence a civil action under this subsection whether or not a complaint has been filed under section 3610(a) of this title and without regard to the status of any such complaint.”).