LGBTQI+ Right to Housing in the United States
Country: United States of America
Body: 7th Circuit Court of Appeals
Case: Marsha Wetzel v. Glen St. Andrew Living Community LLC et al.
Case number: 17-1322
Year of judgement: 2018
PDF of decision
The Law
The United States’ Fair Housing Act (FHA) 42 U.S.C. §§ 3601–3619 Section 3604(b) states that “…it is unlawful [t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, colour, religion, sex, familial status, or national origin”. Section 3617 stipulates that it is unlawful “to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of… any right granted or protected by section… 3604…”.
Summary
Within months of moving into a rented flat at Glen St. Andrew Living Community, a residential community for older adults in Niles, Illinois, Marsha Wetzel received physical and verbal abuse from other residents because she was openly lesbian. After enduring insults and slurs, being pushed off her mobility scooter and a mugging incident; she changed her daily routine to avoid common spaces in the facility and gradually isolated herself in her accommodation. She repeatedly informed St. Andrew management of the harassment and asked staff for help. The staff instructed her not to worry about the harassment and branded her a liar. Following her complaints, management limited her use of the lobby area, halted other agreed-upon services, like cleaning and accused her of defying the no-smoking rule in an effort to build a case for her eviction. Citing the FHA, Ms Wetzel sued St. Andrew, alleging that it failed to provide her with non-discriminatory housing and that it retaliated against her because of her complaints. The District Court dismissed Ms Wetzel’s suit, accepting the argument that the FHA imposes liability only on those who act with discriminatory animus, a claim Ms Wetzel had not expressly made against the management. The Seventh Circuit reversed that decision, reading the FHA “more broadly”. Not only does the FHA create liability when a landlord intentionally discriminates against a tenant based on a protected characteristic; it also creates liability against a landlord that has been notified 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.
The Court of Appeals made it clear that the FHA covers this kind of post-acquisition discrimination, called a hostile housing environment. The court specified the three criteria that the plaintiff needed to prove: (1) that she endured unwelcome harassment based on a protected ground; (2) the actions were severe or frequent enough to interfere with the services or facilities she had paid for; and (3) there is a basis for imputing liability to the defendant. The defendant agreed that her sexual orientation is a protected ground under “sex” in the FHA. Second, the court looked at all the evidence of the allegedly discriminatory behaviour, including whether it was physically threatening or humiliating rather than merely offensive, and its frequency, deciding that she had been “bombarded with threats, slurs, derisive comments about her family, taunts about a deadly massacre, physical violence and spit” for over 15 months. The defendant’s claim that this was ordinary squabbling from “crotchety senior residents” was hard to accept. Third, the Court of Appeals read the FHA to include a landlord’s potential liability for actionable abuse. It referred to analogous anti-discrimination statutes. These include the vicarious liability standard for an employer for workplace discrimination under Title VII of the Civil Rights Act of 1964, as well as Title IX of the Education Amendments of 1972 aimed at eliminating sex-based discrimination in education. Jurisprudence on the latter comparison pointed to school district’s being liable for deliberately remaining indifferent to known acts of student-on-student sexual harassment. The Court of Appeals decided that landlords have a duty to prevent discrimination in housing conditions and should not permit known harassment of tenants on protected grounds. Regarding Ms Wetzel’s retaliation claim and St. Andrew’s argument that it had no discriminatory animus, the Court of Appeals used the text of FHA’s section 3617 itself: it provides protection not because of who people are but because of what they do.
The Decision
In August 2018 the Court of Appeals allowed the appeal, reversing the District Court’s judgement and remanding the case for further proceedings consistent with the Appeal Court’s opinion. It also directed the District Court to reinstate the state-law claims that had been dismissed initially for want of jurisdiction.
Relevance of the Case
Described as ground breaking, the Seventh Circuit Court of Appeals ruling that a landlord may be held liable under the FHA for failing to protect a tenant from known, discriminatory harassment at the hands of other tenants, appears to be a common sense, legally consistent decision. One particular strength in the reasoning is the rejection of St Andrew’s defence that it can only minimally affect the behaviour of its tenants because tenants expect to live free from a landlord’s interference. The judgement states that control in the absolute sense is not required for liability; but is responsible when it fails to bring about a change of conduct but fails to do use its own established incentives or sanctions. For example, according to the standard tenancy agreement at St. Andrew, management could evict any tenant for acts or omissions that directly threaten the health and safety of other individuals or suspend privileges for tenants who fail to abide by the anti-harassment policies instead of retaliating against Ms Wetzel herself. Property law and the applicable contractual tenancy agreement likewise supported the Court’s finding of the statutory duty on landlords to provide a sex discrimination-free environment. Ms Wetzel also relied on a 2016 Federal Department of Housing and Urban Affairs rule interpreting the FHA to state that landlords are directly liable for failing to “take prompt action to correct and end a discriminatory housing practice by a third party” if the landlord “knew or should have known of the discriminatory conduct and had the power to correct it”. The Court of Appeals stated that it did not need to rely on this rule, since the statutory position was clear.
Practical Implications of Decision
At the domestic level, issuing this decision sends a strong message that sexual orientation-based discrimination is not tolerated under the federal statute. And rightly so: the District Court does not appear to have grasped the import, much less the clear wording, of the FHA, nor have consulted comparative statutes for assistance in interpretation. This judgement also sends an reminder about discrimination against the LGBTQI+ community. Beyond the federal statute reasoning lies a human being whose fundamental right to be treated equally was violated.
The District Court should, on re-hearing, grant Ms Wetzel the maximum remedy available, including punitive damages if possible and some form of public apology. She has chosen to remain in her accommodation, and deserves the vindication that the remand to further proceedings should bring.
At the international level, this case was incidentally heard within months of the International Labour Conference’s first discussion of a new labour standard on gender-based violence and harassment in the world of work.1 While debating a draft text of the proposed Convention, many speakers agreed that certain groups, and particularly LGBTQI+ people, were among those most likely to be affected by violence and harassment, and therefore should be explicitly included where the text defined scope. Decisions like the USA Court of Appeals’ (although pertaining to the social right of non-discriminatory housing rather than employment rights) could help shape the 2019 debate on a new labour standard, demonstrating that a lack of adequate legal protection against discrimination on grounds of sexual orientation and gender identity exposes many LGBTQI+ people in all regions to serious violations of their human rights.
A further practical implication: Neither court’s reasoning relied on international treaty law regarding non-discrimination on the basis of sex and sexual orientation and gender identity, which is not unusual in US cases. Yet CEDAW, the International Covenants on Civil and Political, and on Economic, Social and Cultural Rights as well as the ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111, admittedly applying to the world of work rather than housing) forbid discrimination on the basis of this status, and have been usefully argued as directly applicable international law in other jurisdictions. Using international treaty law could have ensured wider import of the outcome, but the domestic law did serve its purpose well in this particular case. The practical impact of this judgement is that the law in question is clear on landlord liability for not removing a known hostile housing environment. Companies that manage housing communities will need to work on updating and disseminating their internal rules, complaints mechanisms and remedies in order to ensure that such sexual orientation-based discrimination cannot rear its ugly head. Training for all staff on handling of allegations to avoid ridiculing and retaliating against victims will be useful. The national equality institution has a role to play there, as do employer associations and professional organizations that offer services to landlords and housing companies. In short, many can play a role to eliminate this scourge, and the Court of Appeals judgement goes a long way towards achieving a fairer, more decent living environment for all persons in the 21st century.
Summary prepared by Jane Aeberhard-Hodges, UNRISD Senior Research Associate.