April2019Issue

48 APRIL 2019 • WWW.AAGLA.ORG Management any characteristic protected by fair housing law. The rule made clear that while the most common form of quid pro quo harassment is based on sex, any “unwelcome request or demand to engage in conduct where submission to the request or demand, either explicitly or implicitly, is made a condition related to” one’s housing, no matter the underlying basis protected by fair housing law motivating the conduct, can be viewed as quid pro quo. Similarly, harassing conduct related to any protected basis can create a hostile environment. It further clarified that a hostile environment can result from either pervasive or severe conduct, and that multiple occurrences are not required to create a hostile environment. A single event of sufficient severity can do so. The rule also specified that a ‘totality of the circumstances’ should be considered, as “evaluated from the perspective of a reasonable person,” in determining whether a hostile environment has been created. However, the rule did not specifically address the issue of liability involving harassment that is being perpetrated by a third party who is not directly connected to a housing provider through agency or employment. Recently California, through rulemaking promulgated by the Fair Employment and Housing Council, a body within the Department of Fair Employment and Housing (DFEH), has gone further in adding clarity to harassment issues for the state’s housing providers and consumers. After a multi-year drafting and comment process, regulations on a wide variety of housing discrimination issues, including harassment, are currently pending final approval and could be effective as soon as July 1, 2019. The regulations on harassment will appear in Title 2 of the California Code of Regulations (CCR) beginning at §12120. Like the federal regulations, the CCR part on harassment describes both ‘quid pro quo’ and ‘hostile environment’ forms of harassment and it is quite similar to the CFR. However, it includes more descriptions of the types of conduct that might constitute harassment. Also, by way of another new CCR part on liability at §12010, these new regulations It has long been established that direct harassing conduct by a housing provider, or their agents or employees, that has a discriminatory motive or intent based on a characteristic protected by fair housing laws, can result in liability for a violation of those laws. What has been less clear is both the appropriate standard for evaluating possible harassment violations generally, and the extent of possible liability to a housing provider when such harassment is being perpetrated at their property by a third party who is not directly connected to the provider through agency or employment. The way to assess harassment violations and the possibility for such liability became clearer with the publication in September 2016 of the U.S. Department of Housing and Urban Development’s (HUD’s) Final Rule entitled Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices under the Fair Housing Act. That rule, codified at Title 24, Part 100.600 of the Code of Federal Regulations (CFR), set out definitions of quid pro quo (this for that) harassment and for harassment that may result in a hostile living environment. A major motivation for HUD undertaking the rulemaking on harassment was to deal with situations of sexual harassment at housing, which had long been recognized as being covered by the Fair Housing Act (FHA) through its protection on the basis of sex. However, in approaching the topic HUD did so with the viewpoint that discriminatory harassment can occur when it is based on or motivated by By David Levy, Programs Specialist, Fair Housing Council of Orange County FAIR HOUSING MONTH BRIEFING: Liability in Incidents of Harassment

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