Second Circuit Holds that Landlords Can Be Held Liable under the Fair Housing Act for Failing to Respond to Tenant-on-Tenant Racial Harassment

Case Name: Francis v. Kings Park Manor, Inc.

Date of Opinion: March 4, 2019

Opinion by: Judge ­­­­­Lohier (majority); Judge Livingston (dissent)

Summary:

In this decision, the Second Circuit held that a landlord may be liable under §§ 3604 and 3617 of the Fair Housing Act of 1968 (“FHA”) and analogous provisions of the New York State Human Rights Law (“NYSHRL”) for failing to take prompt action to address a racially hostile housing environment created by one tenant targeting another, where the landlord knew of the discriminatory conduct and had the power to correct it.

Plaintiff Donahue Francis signed a lease in 2010 and moved into an apartment unit of a complex owned by Defendant Kings Park Manor (“KPM”) and managed by Defendant Corinne Downing shortly thereafter. After several months, Francis’s neighbor Raymond Endres began to subject Francis to a “relentless campaign of racial harassment, abuse, and threats.” Fearing for his personal safety, Francis contacted the police in March 2012 to complain. He filed a police report and spoke to police, who reported Endres’s conduct to the KPM defendants. The KPM defendants did not take action. Francis continued to suffer harassment from his neighbor and filed another police report in May 2012, this time notifying the KPM defendants directly via letter. The KPM defendants again did not respond, and Endres’s conduct persisted—to the point where he was arrested for aggravated harassment, a charge to which he pleaded guilty. In August 2012, Francis sent a second letter to the KPM defendants informing them of Endres’s recent arrest and that Endres continued to direct racial slurs at Francis and anti-Semitic remarks against Jewish people. When Endres attempted to photograph Francis’s apartment in September 2012, Francis contacted the police and the next day sent the KPM defendants a third and final letter complaining about Endres’s continued harassment. The KPM defendants declined to follow up, and instead directed Downing “not to get involved.” Endres remained a tenant of the apartment complex until his lease expired in January 2013.

In June 2014 Francis sued the KPM defendants and Endres for violations of the FHA, the Civil Rights Act, and the NYSHRL, as well as for negligent infliction of emotional distress, and for aiding and abetting a violation of NYSHRL. Francis also sued the KPM defendants for breach of contract and breach of the implied warranty of habitability, and Endres, for intentional infliction of emotional distress. Francis alleged the KPM defendants failed to investigate or attempt to resolve his complaints of racial abuse, instead permitting Endres to remain at the complex until his lease expired without reprisal. The United States District Court for the Eastern District of New York entered a default judgment against Endres when he failed to appear, and granted the KPM defendants’ motion to dismiss under Rule 12(b)(6) except as to the implied warranty of habitability claim.

The Second Circuit vacated the District Court’s dismissal of the federal claims and the NYSHRL claims, remanded for further proceedings, and affirmed the remaining judgment. In so doing, the Court ruled that landlords are subject to the Fair Housing Act if they knew or should have known about third-party conduct that created a hostile environment, and failed to take corrective action despite having had the power to do so.

As a threshold matter, the Court determined that the FHA prohibits discrimination occurring after a plaintiff buys or rents housing. That the statute prohibits discrimination in the “terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith,” indicates it encompasses claims after the plaintiff has taken possession of the dwelling, according to the Second Circuit (emphasis added). Turning next to deciding whether the statute prescribes landlord liability for tenant-on-tenant harassment, the Court relied in part on the statutory text, legislative history and “a pattern of expansive readings of the FHA,” including precedents invoking comparisons to employer liability under Title VII, to find that it does. It also accorded “great” weight to a U.S. Department of Housing and Urban Development regulation (“Rule”), published in 2016, which amended the HUD’s rules for discriminatory conduct under the FHA. The Court accepted the agency’s explanation that the Rule is interpretive in nature, formalizing HUD’s “longstanding” view that landlords may be held liable in certain circumstances for failing to address tenant-on-tenant harassment.

To establish a housing provider’s liability for third party harassment under the FHA, the Second Circuit held that a plaintiff must prove: (1) the third-party created a hostile environment for the plaintiff; (2) the housing provider knew or should have known about the third-party’s conduct; and (3) the housing provider failed to take prompt action to end the harassment despite having the power to do so. The Court, accepting the allegations in the complaint as true, then found Francis to have plausibly and adequately alleged the KPM defendants engaged in intentional racial discrimination. It determined that the District Court erred, however, in requiring Francis to allege the KPM defendant’s conduct was the result of direct intentional discrimination, which the Court has “never” required. Thus, the Court allowed Francis’s claims under the FHA to proceed. As stating a NYSHRL housing discrimination claim is “substantially similar” to stating an analogous claim under the FHA, the Second Circuit allowed Francis to bring his NYSHRL housing discrimination claims against the KPM defendants on remand.

Judge Livingston penned the dissent, taking issue with the majority’s determination of liability under the FHA despite the absence of any explicit reference to liability in the context of tenant-on-tenant harassment in the statute. The dissent found no basis to support the majority’s opinion, neither in the statutory text nor in relevant precedent from sister circuits, save for what Judge Livingston deemed the majority’s “fundamentally flawed” analogy to Title VII and its “hostile work environment” cases. According to Judge Livingston, the degree of control an employer may exert over an employee is significantly greater than a landlord’s control over a tenant, such that the majority’s analogy is inapt.

Summary Prepared By: Amanda Brody

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