Title VIII of the Civil Rights of 1968, also known as the Fair Housing Act (“FHA”), is a federal law which prohibits discrimination in housing and housing-related services due to race, color, religion, sex, national origin, disability, and familial status. Because the FHA applies to entities that set terms and conditions for housing and provide services and facilities in connection with housing, it applies to HOAs and other community associations. By now, most HOAs across the country are already aware (or should be aware) that, in 2016, the U.S. Department of Housing and Urban Development (“HUD”) amended its federal housing regulations to firmly establish association liability for discriminatory conduct by its Board, directors, employees, and even by residents.

Quid Prop Quo and Hostile Environment Harassment

Suppose that Happy Acres HOA’s on-site manager John has openly expressed his fondness for homeowner Sarah by whistling and making cat-calls at her when she passes his office on her way to the gym. He has asked her out on dates several times, even after she declined and explained that she was married with three kids.

One day, when Sarah emailed John to request guest passes for her son’s birthday party, he responded by saying, “come see me in my office in your gym clothes and we’ll see what we can ‘work out.’”

Does Sarah have a housing discrimination claim against the HOA? Is the HOA liable for its manger’s conduct?

HUD’s new rule adds 24 C.F.R. § 100.600, which formalizes an HOA’s liability for “quid pro quo” harassment and “hostile environment” harassment in the housing context. Quid pro quo (or “this for that” harassment refers to an unwelcome request or demand to engage in conduct (due to race, color, religion, sex, national origin, disability, or familial status) where submission to the request or demand, either explicitly or implicitly, is made a condition related to the provision of services or facilities. In the HOA context, this often occurs when an HOA manager or employee requests or demands sexual favors from a resident in the community in exchange for his/her use of community facilities or services, as depicted in the example above, where John, as an agent for the HOA, requested sexual favors from Sarah in exchanged for the guest passes she requested.

Hostile environment harassment refers to unwelcome conduct (due to race, color, religion, sex, national origin, disability, or familial status) that is sufficiently sever or pervasive as to unreasonably interfere with the provision or enjoyment of services of facilities. This can occur when, as illustrated in the example above, a resident who is attempting to make use of an association’s services (e.g., a gym, pool), and is repeatedly subject to cat-calls, sexual comments or other lewd conduct by an HOA employee or manager. Under the new HUD regulations, and HOA can be held liable for failing to correct the sexually harassing conduct.

What Should an HOA Board do?

It depends on the circumstances. It may include verbal and/or written warnings and demands that the offensive and discriminatory conduct stop, legal action, including harassment restraining orders and/or reporting the offensive conduct to the police. Note that if a Board member is doing the harassing, that Board member must, of course, be kept out of an executive decisions relating to the harassment complaint.

Real estate attorneys John Stevens and Brian Goldwyn specialize in homeowners association law and condominium law.

Stevens & Goldwyn, P.A. is located in Plantation, FL and provides services throughout Florida, including Fort Lauderdale, Miami, Palm Beach, Plantation, Pembroke Pines, Miami Beach, Pompano Beach, Hollywood, Aventura, and more.

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