HUD, the US Department of Housing and Urban Development, has begun to apply the Fair Housing Act (FHA) to protect disabled tenants, and others in classes protected by the FHA, from harassment. Harassment is a legal term which includes behavior that is commonly called bullying. We applaud these actions, taken under the leadership of Gustavo Velasquez, HUD Assistant Secretary for Fair Housing and Equal Opportunity. HUD's recent actions are an important step in protecting the rights of tenants. And we believe that such protections should be available to all tenants of HUD subsidized housing, and that the threshold for intervention ought to be lower in order to prevent all bullying in subsidized—indeed, in all—housing.
Under the Fair Housing Act, HUD can investigate and remedy alleged harassment on the basis of race, color, religion, national origin, sex, familial status or disability.
HUD can hold providers of housing, including landlords, managers, and their agents responsible for protecting tenants from harassment. With a proposed new rule, HUD seeks to prevent housing providers from making inappropriate sexual or other demands on tenants, and clarifies the responsibility of the housing provider to prevent harassment that creates a hostile environment depriving tenants of their rights. Housing providers can not evade liability for harassment that takes place in their buildings.
HUD charges housing provider with discrimination
In an administrative court action, HUD has charged the owner and managers of an apartment complex in Cross Plains, Wisconsin with discrimination against two disabled tenants by failing to prevent their harassment by neighbors, and by refusing to renew their lease.
Whereas we have learned of a number of cases where landlords and managers claim to have no responsibility for the relations among neighbors in subsidized apartments for independent living, HUD asserts in this case that a housing provider is obligated to protect residents from harassment under the terms of the Fair Housing Act.
The Fair Housing Act makes it unlawful for a housing manager or owner to fail to fulfill a duty to correct and end the harassment of one tenant by another, when that harassment is based on race, color, religion, sex, familial status, national origin or, as was the case here, disability. The Fair Housing Act also makes it unlawful to interfere with any person’s right to enjoy their home.
“A person’s home should be where they feel the greatest level of comfort—not anguish and fear because of being subjected to humiliating and degrading comments,” said Gustavo Velasquez, HUD Assistant Secretary for Fair Housing and Equal Opportunity. “Harassing a person because of their disability is not only disturbing, it is illegal.” (1)
Tenants, manager act to get rid of disabled persons
The elements of this situation parallel many other situations of bullying. In the Wisconsin case, the victims were characterised by other residents as not suitable for independent living in the facility, and they were bullied and harassed. The government alleges that neighbors of the victims said, "You don't belong here...You belong in an institution." This was bullying.
The manager stated that his policy is not to get involved with neighbor disputes. Thus the manager set up a situation of what one of us (Halberstadt) has identified as institutional bullying, (2) where management pretends to have no obligation or responsibility to intervene. But it got worse, as the manager joined the chorus of those seeking to get rid of the victims; he decided that the victims were not capable of independent living, refused to act against the ongoing bullying and harassment, and finally refused to renew the lease of the victims. This was a case of mobbing, where management and tenants ganged up on the victims, claiming they did not belong in the residential setting and seeking to get rid of the victims. (3)
HUD proposes rule against harassment
On October 21, 2015, HUD has proposed a rule that would formalise and define harassment under the Fair Housing Act. While the rule only clarifies existing law and regulations, the impact may be significant and help to prevent harassment in private as well as subsidized residences.
"A home should be a refuge where every woman and man deserves to live without the threat of violence or harassment. The rule HUD is proposing is designed to better protect victims of harassment by offering greater clarity for how to handle a claim against an abuser," said HUD Secretary Julián Castro. (4)
The rule addresses two kinds of harassment: quid pro quo or "this-for-that," where the housing provider demands sexual favors or other unwanted actions in exchange for providing housing and rights of a tenant; and hostile environment, where the victim is unable to enjoy their home and may be forced to leave because of intolerable harassment. Such an environment is comparable to mobbing. (2)
Finally, in a very important clarification of the responsibilities of the provider of housing, the rule would eliminate the possibility that any provider or their agents could escape legal liability for harassment based on discrimination. (5)
If this rule is accepted, owners, managers, staff and others who are part of the housing administration would find it prudent to take all necessary steps to prevent harassment of persons covered under the Fair Housing Act. And, while this would not protect all residents directly, we could anticipate that in a community where there is no harassment of specifically protected persons, there would be little or no harassment because of the more positive environment. Please review the rule and file your comments in support.
More needs to be done
HUD's approach to harassment based on discrimination of people in specific protected classes is a good thing, but it only applies to people of protected classes who have been harassed because of their protected characteristics.
We would argue, based on research and expert opinion, that harassment is an emergent characteristic of an institution, and thus the only effective way to prevent harassment of people in protected classes is to protect all of the people by setting up an institutional culture of prevention and enforcement.
Therefore, HUD should rule against all bullying/harassment throughout the HUD empire by extension of their proposed rule, ie., holding the housing provider and all agents liable for any harassment taking place in housing subsidized in any way by HUD..
(2) Jerry Halberstadt, Stop Bullying: Creating healthy communities for the elderly and disabled, (Peabody:Togethering Press), 2017.
(3) UNITED STATES OF AMERICA, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, OFFICE OF HEARINGS AND APPEALS, "CHARGE OF DISCRIMINATION," FHEO No. 05-15-0557-8, September 30, 2015 http://portal.hud.gov/hudportal/documents/huddoc?id=15-05-14-0557-8.pdf
(5) Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act; A Proposed Rule by the Housing and Urban Development Department on 10/21/2015. Federal Register Oct 21, 2015 https://federalregister.gov/a/2015-26587
The public may submit comments on the rule at Regulations.gov. Comments are due 12/21/2015 at 11:59 PM EST. There is a form for submission at the head of the Federal Register publication on the rule.
Persons who believe they have experienced discrimination may file a complaint by contacting HUD’s Office of Fair Housing and Equal Opportunity at (800) 669-9777 (voice) or (800) 927-9275 (TTY). Housing discrimination complaints may also be filed at www.hud.gov/fairhousing or by downloading HUD’s free housing discrimination mobile application, which can be accessed through Apple and Android devices.