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DiCenso v. Cisneros, 96 F.3d 1004 (7th Cir. 1996)

Albert Dicenso, Petitioner, v. Henry G. Cisneros, Secretary of the United States Departmentof Housing and Urban Development, and Christina L. Brown, Respondents

US Court of Appeals for the Seventh Circuit

Argued April 18, 1996. Decided Sept. 23, 1996

James P. Baker (argued), Springfield, IL, for Petitioner.

Thomas E. Chandler (argued), Jessica Dunsay Silver, Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, Harry L. Carey, Nelson Diaz, Department of Housing and Urban Development, Washington, DC, for Respondent.

Christina L. Brown, Decatur, IL, pro se.

Before BAUER, ESCHBACH, and FLAUM, Circuit Judges.

BAUER, Circuit Judge.

This case raises the question of whether one incident of harassment was sufficiently egregious to create a hostile environment sex discrimination cause of action under the Fair Housing Act, 42 U.S.C. § 3601 et seq. An Administrative Law Judge (“ALJ”) thought it was not, but the Housing and Urban Development (“HUD” or “the Department”) Secretary’s Designee disagreed, and remanded the case to the ALJ for a determination of damages. On remand, the ALJ awarded Christina Brown $5,000 in compensatory damages, assessed a $5,000 civil penalty, and entered injunctive relief. The landlord who committed the harassment now seeks relief from the Secretary’s Order. We reverse.

Background

The events of this lawsuit arose in the context of Christina Brown’s tenancy at 522 1/2 West Allen Street in Springfield, Illinois. Brown, who at the time was 18 years old, lived in one of the four apartment units with Thomas Andrews and their infant daughter Sara. Beginning in June 1990, they leased the apartment from Albert DiCenso, who owned and managed the building, did most of the cleaning and maintenance, and collected the rents.

Brown and Andrews signed a six-month lease with an option for six more months. During the first few months a family friend stayed with them, and their rent was $300 per month. When the friend moved out in September, DiCenso reduced the rent to $275 per month. At first, Brown and her co-tenants delivered the rent checks to DiCenso’s home, but eventually, DiCenso started going to the apartment to collect the payments.

Sometime in mid-October or early November, DiCenso came to Brown’s apartment to collect the rent. According to the ALJ’s findings, the following exchange took place:

While [Brown] stood at the door, [DiCenso] asked about the rent and simultaneously began caressing her arm and back. He said to her words to the effect that if she could not pay the rent, she could take care of it in other ways. [Brown] slammed the door in his face. [DiCenso] stood outside calling her names–a “bitch” and “whore,” and then left.

On January 15, 1991, DiCenso again went to the apartment to collect the monthly rent. While there, he became involved in a confrontation with Andrews and the police were called. DiCenso informed the police that the disagreement was over Andrews’ refusal to pay the rent. Brown and Andrews told DiCenso that they would be leaving the apartment within the next ten days. According to the police report, the two parties “both came to the decision of settling the matter in court.”

Brown and Andrews did not move out, however, and in late January, DiCenso served them with a five-day notice to quit the premises. On January 31, Brown filed a housing discrimination complaint alleging that DiCenso had harassed her and her boyfriend, and had made sexual advances toward her.1  DiCenso denied the allegations, and asserted that he had had problems collecting the December 1990 and January 1991 rent, and that Andrews not only refused to pay the rent, but had threatened to hurt him. DiCenso felt that the discrimination complaint was a “plot” by Brown and Andrews to avoid paying the rent that was due.2

The Department investigated Brown’s complaint and determined that reasonable cause existed to believe that discrimination had occurred. On June 22, 1994 the Department issued a charge against DiCenso for violations of sections 804(b) and 818 of the Fair Housing Act. Section 804(b) prohibits discrimination “against any person in the terms, conditions, or privileges of [the] rental of a dwelling … because of … sex.” 42 U.S.C. § 3604(b). Section 818 makes it illegal to “coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of … any right” granted or protected by the Fair Housing Act. 42 U.S.C. § 3617. A HUD ALJ conducted a hearing on October 25, 1994.

On March 20, 1995, the ALJ issued a thorough decision, in which she acknowledged that any finding that the alleged acts occurred rested solely on credibility determinations. In making these determinations, the ALJ relied on the witnesses’ demeanor while testifying, their ability and opportunity to observe what happened, their memory, any interest or bias they might have, the consistency of their statements, and the reasonableness of their testimony in light of all of the evidence received. On the whole, the ALJ found Brown more credible than DiCenso. However, the ALJ also found that Brown’s testimony established only one act of sexual harassment by DiCenso–the mid-October incident. On this set of facts, the ALJ concluded that DiCenso’s conduct did not rise to the level of severity required to create a hostile housing environment. Consequently, the ALJ found that Brown had failed to establish a claim of sex discrimination and dismissed the complaint.

The Department, acting on Brown’s behalf, sought review of the ALJ’s order pursuant to 42 U.S.C. § 3612(h). The HUD Secretary’s Designee affirmed the ALJ’s findings of fact, but reached a different conclusion on the issue of whether the single incident amounted to a hostile housing environment for purposes of the Fair Housing Act. Finding for Brown on the issue of liability, the Secretary’s Designee vacated the ALJ’s decision and remanded the case for a determination of damages. The ALJ awarded Brown $5,000 in compensatory damages, assessed a $5,000 civil penalty against DiCenso and entered injunctive relief. This award became final on July 19, 1995. On August 18, 1995, DiCenso filed a petition for review in this court pursuant to 42 U.S.C. § 3612(i).

Analysis

Before addressing whether DiCenso’s conduct constitutes unlawful discrimination, we first must address the applicable standard of review. Both parties correctly acknowledge that we defer to the ALJ’s findings of fact where they are supported by substantial evidence on the record as a whole. See Chicago Tribune v. NLRB, 79 F.3d 604, 607 (7th Cir. 1996). The issue, then, is whether we also should defer to the Department’s legal conclusions. DiCenso understandably argues that we should review the legal conclusions de novo. In its initial brief, the Department agreed, but at oral argument, we invited the parties to submit supplemental briefs on the issue of whether the Supreme Court’s Chevron decision requires us to defer to HUD’s interpretation of what constitutes a hostile housing environment. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-45, 104 S. Ct. 2778, 2782-83, 81 L. Ed. 2d 694 (1984).

Chevron requires us to defer to the decisions of executive agencies where the agency has a particular expertise in the conflicting policy considerations that underlie a statute, or where the agency previously has considered the matter at issue in a detailed and reasoned fashion. See id. at 865, 104 S. Ct. at 2792-93. Neither of these situations exist here. In Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986), the Supreme Court commented on the deference given to EEOC guidelines defining sexual harassment as a form of sex discrimination. Although those guidelines “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance,” they are not “controlling upon the courts by reason of their authority.” Meritor, 477 U.S. at 65, 106 S. Ct. at 2404, citing General Electric Co. v. Gilbert, 429 U.S. 125, 141-42, 97 S. Ct. 401, 410-11, 50 L. Ed. 2d 343 (1976). In this case, by contrast, HUD has not even enacted guidelines regarding hostile housing environment sex discrimination. Rather, as the HUD Secretary’s Designee acknowledged, a determination of what constitutes a hostile environment in the housing context requires the same analysis courts have undertaken in the Title VII context. Such a determination does not require deference to an administrative agency.

Despite the concession in its initial brief, the Department now argues that we should subject determinations of whether an incident of harassment is sufficiently egregious to constitute sex discrimination to a clearly erroneous standard. See, e.g., Carr v. Allison Gas Turbine Div., General Motors Corp., 32 F.3d 1007, 1009 (7th Cir. 1994); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993); Rennie v. Dalton, 3 F.3d 1100, 1106 (7th Cir. 1993); Daniels v. Essex Group, Inc., 937 F.2d 1264, 1269-70 (7th Cir. 1991). Each of these cases involves claims of hostile environment discrimination in employment. Moreover, all of them also differ from the instant case insofar as they involved challenges to a district court’s findings of fact. In those cases, we held that the existence of harassment in a hostile work environment involved an application of facts to law. Therefore, the clearly erroneous standard governed. See Rodgers, 12 F.3d at 674. In this case, the existence of harassment is not at issue. The sole question is whether the incident of harassment that occurred is sufficient to state a cause of action under the Fair Housing Act. This is purely a question of law which we review de novo. See Daniels, 937 F.2d at 1269.

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (1), allows a cause of action for harassment that creates a hostile or offensive working environment. Meritor, 477 U.S. at 65, 106 S. Ct. at 2404-05. Claims of hostile environment sex discrimination in the housing context have been far less frequent. The first district court to apply the hostile environment cause of action to housing discrimination did so in Shellhammer v. Lewallen, Fair Hous.–Fair Lend. Rep. (P-H) para. 15,742 (W.D. Ohio Nov. 22, 1983), affirmed by 1985 WL 13505 (6th Cir. July 31, 1985). Since Shellhammer, one court of appeals also has recognized sexual harassment as a basis for a Fair Housing Act discrimination claim. See Honce v. Vigil, 1 F.3d 1085 (10th Cir. 1993). Like Shellhammer and Honce, other courts that have found harassment to create an actionable form of housing discrimination also have incorporated Title VII doctrines into their analyses. See Beliveau v. Caras, 873 F. Supp. 1393, 1396-97 (C.D. Cal. 1995); see also New York ex rel. Abrams v. Merlino, 694 F. Supp. 1101 (S.D.N.Y. 1988) (alleging a pattern of race and sex discrimination in the provision of real estate brokerage services).

Like the Tenth Circuit, we recognize a hostile housing environment cause of action, and begin our analysis with the more familiar Title VII standard. For sexual harassment to be actionable in the Title VII context, it must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Meritor, 477 U.S. at 67, 106 S. Ct. at 2405-06. “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment–an environment that a reasonable person would find hostile or abusive-is beyond Title VII’s purview.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370, 126 L. Ed. 2d 295 (1993). Applied to the housing context, a claim is actionable “when the offensive behavior unreasonably interferes with use and enjoyment of the premises.” Honce, 1 F.3d at 1090. Whether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances, and factors may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. Harris, 510 U.S. at 23, 114 S. Ct. at 371.

We repeatedly have held that isolated and innocuous incidents do not support a finding of sexual harassment. See, e.g., Koelsch v. Beltone Electronics Corp., 46 F.3d 705, 708 (7th Cir. 1995); Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 444 (7th Cir. 1994). For example, in Saxton v. American Tel. & Tel. Co., 10 F.3d 526 (7th Cir. 1993), the defendant on one occasion put his hand on the plaintiff’s leg and kissed her until she pushed him away. Three weeks later, the defendant lurched at the plaintiff from behind some bushes and unsuccessfully tried to grab her. While these incidents were subjectively unpleasant, the defendant’s conduct was not frequent or severe enough to create a hostile environment. Saxton, 10 F.3d at 534-35. Similarly, in Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333 (7th Cir. 1993), the defendant asked the plaintiff for dates on repeated occasions, placed signs which read “I love you” in her work area, and twice attempted to kiss her. These incidents also were too isolated and insufficiently severe to create a hostile work environment. Weiss, 990 F.2d at 337. Common to all of these examples is an emphasis on the frequency of the offensive behavior. “Though sporadic behavior, if sufficiently abusive, may support a [discrimination] claim, success often requires repetitive misconduct.” Chalmers v. Quaker Oats Co., 61 F.3d 1340, 1345 (7th Cir. 1995).

In this context, the problem with Brown’s complaint is that although DiCenso may have harassed her, he did so only once. Moreover, DiCenso’s conduct, while clearly unwelcome, was much less offensive than other incidents which have not violated Title VII. DiCenso’s comment vaguely invited Brown to exchange sex for rent, and while DiCenso caressed Brown’s arm and back, he did not touch an intimate body part, and did not threaten Brown with any physical harm. There is no question that Brown found DiCenso’s remarks to be subjectively unpleasant, but this alone did not create an objectively hostile environment.

We stress in closing that our decision today should not be read as giving landlords one free chance to harass their tenants. We do not condone DiCenso’s conduct, nor do we hold that a single incident of harassment never will support an actionable claim. See Chalmers, 61 F.3d at 1345; King v. Board of Regents of University of Wisconsin System, 898 F.2d 533, 537 (7th Cir. 1990). Considering the totality of the circumstances in this case, we agree with the ALJ that DiCenso’s conduct was not sufficiently egregious to create an objectively hostile housing environment.

Conclusion

For the foregoing reasons, we grant DiCenso’s petition and reverse the decision of the HUD Secretary Designee.

REVERSED.

FLAUM, Circuit Judge, dissenting.

The majority correctly notes that this case raises the purely legal issue of whether a particular incident of harassment was sufficiently egregious to create a hostile housing environment claim under the Fair Housing Act (the “FHA”). The majority reviews this legal issue de novo and concludes that Albert DiCenso’s conduct did not create an objectively hostile environment. Because, in my view, we must defer to HUD’s reasonable interpretation of what constitutes a hostile housing environment, I respectfully dissent from the majority’s decision.

It is well-established that considerable weight should be given to an agency’s construction of a statutory scheme that it has been entrusted to administer. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S. Ct. 2778, 2782-83, 81 L. Ed. 2d 694 (1984). The Supreme Court has held that HUD’s interpretation of the FHA “ordinarily commands considerable deference” since “HUD [is] the federal agency primarily assigned to implement and administer Title VIII.” Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 107, 99 S. Ct. 1601, 1611-12, 60 L. Ed. 2d 66 (1979); see Pfaff v. United States Dep’t of Housing & Urban Dev., 88 F.3d 739, 747 (9th Cir. 1996); Cowherd v. United States Dep’t of Housing & Urban Dev., 827 F.2d 40, 42 (7th Cir. 1987) (finding that Congress vested HUD “with considerable discretion to implement the various and often competing goals of the national housing policy”). The majority recognizes that Chevron calls for deference where an agency has expertise in reconciling conflicting policy considerations that underlie a statute, but posits that, because HUD has not enacted hostile housing environment guidelines, we need not defer to HUD’s construction of the FHA. Yet an agency is free to formulate policy through individual adjudicative proceedings rather than rulemaking. NLRB v. Bell Aerospace Co., 416 U.S. 267, 293-94, 94 S. Ct. 1757, 1771-72, 40 L. Ed. 2d 134 (1974). Thus an agency’s interpretation of the statute that it administers commands deference, irrespective of whether that interpretation emerges as a result of an adjudicative proceeding or a rulemaking process. Pfaff, 88 F.3d at 747; see Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 574, 108 S. Ct. 1392, 1396-97, 99 L. Ed. 2d 645 (1988) (applying Chevron deference in the context of an adjudicative proceeding); Federal Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 31-32, 102 S. Ct. 38, 41-42, 70 L. Ed. 2d 23 (1981) (finding that interpretation developed by agency during adjudication was entitled to deference). The scope of our review of this agency action is therefore clearly limited. We “may not substitute [our] own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Chevron, 467 U.S. at 844, 104 S. Ct. at 2782.

In the current case, the Secretary of HUD has taken the position that DiCenso’s conduct was sufficiently severe as to create a claim for hostile housing environment under the FHA. Section 804(b) of the FHA prohibits gender-based discrimination in the sale or rental of a dwelling, or in the “provision of services” in connection with such sale or rental. 42 U.S.C. § 3604(b). The Secretary, consistently with the approach adopted by the majority, believes that a hostile housing environment claim is actionable “when the offensive behavior unreasonably interferes with use and enjoyment of the premises.” Honce v. Vigil, 1 F.3d 1085, 1090 (10th Cir. 1993). The Secretary concludes that DiCenso’s offensive conduct was sufficiently severe to satisfy this test, despite the fact that the conduct only occurred once. DiCenso’s unwelcome caressing of Brown, combined with his offer of “sex for rent” and his hurling of gender-oriented epithets after Brown’s rejection of his offer, certainly provides the Secretary with ample support for this conclusion. Although the majority may very well be correct in stating that DiCenso’s conduct would not be sufficient to give rise to a claim for sexual harassment under our Title VII precedent, the majority provides no basis for doubting the reasonableness of the Secretary’s interpretation of the FHA. In conclusion it is my judgment that the Secretary’s interpretation of the FHA is a reasonable one and is therefore entitled to deference.

 1In addition to the aforementioned incident, Brown’s complaint alleged other incidents of purported harassment as well as unauthorized entries into the apartment. However, the mid-October exchange is the only incident for which the ALJ found DiCenso responsible. The ALJ heard the evidence, and observed the demeanor and testimony of the witnesses. Moreover, the Secretary’s Designee accepted the ALJ’s findings of fact. Accordingly, we will consider only the mid-October exchange in determining whether Brown has stated an actionable claim

 2DiCenso also filed suit against Brown and Andrews in the Circuit Court of Sangamon County to collect the unpaid January 1991 rent. After an evidentiary hearing, the court entered judgment in favor of DiCenso in the sum of $275.00 plus court costs

DiCenso v. Cisneros,  96 F.3d 1004 (7th Cir. 1996)

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Beliveau v. Caras, 873 F. Supp. 1393 (C.D. Cal. 1995)

Linda BELIVEAU, Plaintiff,
v.
Chris CARAS, James Rickell, and Does 1 through 25, inclusive, Defendants.

No. CV 94-5398 RAP (CTx).

United States District Court, C.D. California.

January 6, 1995.*1394 Angela M. Brown, Bodkin, McCarthy, Sargent & Smith, Los Angeles, CA.

Sue Ann Howard, Baumberger & Howard, Lancaster, CA.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR PARTIAL DISMISSAL

PAEZ, District Judge.

On October 17, 1994, the Court heard defendants Chris Caras’ and James Rickell’s motion for partial dismissal of plaintiff’s First Amended Complaint. After fully considering the moving, opposition, and reply papers, exhibits submitted in connection with the request to take judicial notice, authorities, and counsel’s oral arguments, the Court denies the motion with respect to the First, Seventh, and Eighth Causes of Action, and grants the motion without leave to amend the Second, Third, Sixth, Ninth, Tenth, and Eleventh Causes of Action.

I

PROCEDURAL BACKGROUND

Plaintiff Linda Beliveau (“Beliveau”) filed an action in Los Angeles Superior Court on *1395 February 24, 1994 against defendants Chris Caras, James Rickell, and Does 1 through 25 for sex discrimination in defendants’ “operation of their apartment complex in violation of the California Fair Employment and Housing Act (Government Code §§ 12940 et seq).” She asserted causes of action for housing discrimination, negligent hiring, negligent supervision, sexual assault, intentional infliction of emotional distress, and negligent infliction of emotional distress.

Defendants demurred to the complaint. On June 16, 1994, the Superior Court sustained the demurrer without leave to amend on the causes of action for housing discrimination, sexual assault (against Caras), intentional infliction of emotional distress (against Caras), and negligent infliction of emotional distress (against Caras). Leave to amend was granted with respect to the negligent hiring and negligent supervision causes of action.

On July 5, 1994, plaintiff filed a First Amended Complaint (“FAC”) alleging the following causes of action: (1) discrimination in housing (42 U.S.C. § 3604 et seq.); (2) negligent hiring (unamended); (3) negligent supervision (unamended); (4) sexual battery (against Rickell) (5) intentional infliction of emotional distress (against Rickell); (6) negligent infliction of emotional distress (against all defendants and without court permission); (7) violation of the Ralph Civil Rights Act (Civ.C. § 51.7); (8) violation of the Unruh Act (Civ.C. § 51); (9) breach of the covenant of good faith and fair dealing; (10) breach of the covenant of quiet enjoyment (Civ.C. § 1927); and (11) intentional nuisance (Civ.C. § 3479). Pursuant to Federal Rule of Evidence 201, the Court hereby takes judicial notice of the pleadings and records in the Los Angeles Superior Court.

Defendants removed the case to federal court on August 9, 1994 based on the federal claim for discrimination in housing. Defendants Caras and Rickell moved to dismiss the First, Second, Third, and Sixth through Eleventh Causes of Action.

II

RELEVANT FACTUAL BACKGROUND

The following facts, which the Court must accept as true for purposes of the instant motion, are alleged in the First Amended Complaint (“FAC”).

Plaintiff rents an apartment in Redondo Beach. Defendant Chris Caras owns and operates the building; defendant James Rickell is the resident manager.

In about July/August 1993, Beliveau noticed that Rickell was staring at her while she was laying out by the apartment pool in her bathing suit. During that same time period, Rickell “began making off-color, flirtatious and unwelcome remarks to Beliveau.” FAC, ¶ 10. Also during this time frame, Rickell “went to Plaintiff’s apartment to repair a water leak in her shower, when he thereafter called her into the bathroom, proceeded to put his arm around her, told her she was an attractive woman, he would like to keep her company any time, and made a remark about her breasts, referring to them as `headlights.'” Id., ¶ 11, Beliveau pushed him away, and he “grabbed her breast, and, after being pushed away again, grabbed her buttock as she walked away from him.” Id., ¶ 12.

III

DISCUSSION

A. Standard on Motion to Dismiss

The purpose of a Rule 12(b) (6) motion is to test the “legal sufficiency of the claim or claims stated in the complaint.” Schwarzer, Tashima and Wagstaffe, California Practice Guide: Federal Civil Procedure Before Trial (“Fed.Civ.Proc.“), § 9:187 (1994), citing Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); De La Cruz v. Tormey, 582 F.2d 45 (9th Cir. 1978), cert. denied, 441 U.S. 965, 99 S. Ct. 2416, 60 L. Ed. 2d 1072 (1979). The motion is disfavored; “dismissal is proper only in `extraordinary’ cases.” Fed. Civ.Proc., § 9:210, citing United States v. Redwood City, 640 F.2d 963 (9th Cir.1981).

In evaluating the motion, the Court looks only to the face of the complaint to determine whether there are defects. Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1483 (9th Cir. 1991); see also Fed.Civ.Proc., § 9:211. The *1396 complaint is construed in the light most favorable to the plaintiff. Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir.1980); Fed.Civ. Proc., § 9:213. In addition, “the court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them.” Fed.Civ.Proc., § 9:215 (emphasis in original), citing NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986). In short, the “test is whether the facts, as alleged, support any valid claim entitling the plaintiff to relief,” regardless of whether plaintiff erroneously used the wrong legal theory. Fed.Civ.Proc., § 9:227 (emphasis in original); Haddock v. Board of Dental Examiners of California, 777 F.2d 462, 464 (9th Cir.1985).

B. Federal Housing Discrimination Claim

Title VIII or the Housing Rights Act of 1968, the Fair Housing Act, 42 U.S.C. §§ 3601-3619, prohibits, among other things, sexual discrimination in housing. 42 U.S.C. § 3604(b) provides in relevant part:

[I]t shall be unlawful

 

(b) To 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, color, religion, sex, familial status, or national origin.

The application of sexual harassment doctrine to cases under Title VIII is relatively new. The first district court to find sexual harassment to constitute impermissible housing discrimination did so in Shellhammer v. Lewallen, Fair Hous. Fair Lend. Rep. (P-H) ¶ 15,472 (W.D.Ohio Nov. 22, 1983). In that case, a landlord requested that plaintiff pose for nude photographs and engage in sexual intercourse with him. Plaintiff refused, and, as the Shellhammers alleged, this prompted the landlord to commence eviction proceedings on the pretext of their purported nonpayment of rent.

The court reviewed the arguments for and against allowing a housing discrimination claim to be based on sexual harassment. The court noted that, in the employment context, other courts had not found the absence of express authorization in the text or legislative history of Title VII to justify rejecting such claims. Moreover, both Title VII and Title VIII were “designed to eradicate the effects of bias and prejudice. Their purposes are, clearly, the same; only their field of operation differs.” Indeed, as the Chief Judge of that district had explained, “The [Fair Housing] Act … is to be construed generously to ensure the prompt and effective elimination of all traces of discrimination within the housing field.” Id., p. 16,128, quoting United States v. City of Parma, 494 F. Supp. 1049, 1053 (N.D. Ohio 1980), aff’d, 661 F.2d 562 (6th Cir.1981). The district judge in Shellhammer concluded that, “[i]n view of the policy of broad interpretation of the Fair Housing Act, the statute’s remedial purposes, and the absence of any persuasive reason in support of the defendant’s contentions that sexual harassment is not actionable under the Act,” it was “entirely appropriate to incorporate this doctrine into the fair housing area.” Id.

The judge then explained that in the housing area, “sexual harassment would consist of either creating an `offensive environment,’ or conditioning tenancy or continued tenancy, upon sexual consideration.” Id. The court found the latter form of sexual harassment to be present.

Since Shellhammer, additional courts have agreed that sexual harassment is an actionable form of housing discrimination. In New York ex rel. Abrams v. Merlino, 694 F. Supp. 1101 (S.D.N.Y.1988), the state and four individual female plaintiffs, two of whom were African-American, sued a real estate broker and three real estate salespersons for an alleged pattern and practice of race and sex discrimination in providing real estate brokerage services. Plaintiffs alleged that, among other things, defendant Merlino “subject[ed] his female customers to unwanted physical touching and to suggestive sexual comments and propositions.” 694 F. Supp. at 1102. Judge Goettel noted his reluctance at the motion to dismiss stage to find that a claim for sexual harassment could not be stated, and denied the motion to dismiss. Id. at 1104.

More recently, in Honce v. Vigil, 1 F.3d 1085 (10th Cir.1993), the Tenth Circuit recognized sexual harassment as a basis for a Fair *1397 Housing Act discrimination claim. The court noted that employment discrimination cases provided helpful guidance. 1 F.3d at 1088. The court explained:

Applied to housing, a claim is actionable when the offensive behavior unreasonably interferes with use and enjoyment of the premises. The harassment must be `sufficiently severe or pervasive’ to alter the conditions of the housing arrangement … It is not sufficient if the harassment is isolated or trivial…. `”[C]asual or isolated manifestations of a discriminatory environment … may not raise a cause of action.”‘ … The offensive acts need not be purely sexual; it is sufficient that they would not have happened but for claimant’s gender.

Id. at 1090 (citations omitted). The court found defendant’s conduct, which escalated from asking her out to threats of eviction, to be “eccentric, and probably unwarranted,” but because his behavior was not sexual or directed only at women, it was not actionable. Id.

In sum, it is beyond question that sexual harassment is a form of discrimination. Moreover, as the above cases make clear, the purposes underlying Titles VII and VIII are sufficiently similar so as to support discrimination claims based on sexual harassment regardless of context. Indeed, it is the behavior that the law seeks to eradicate. The basic principles thus apply as strongly in the housing situation as in the workplace.[1] At this point, then, it is appropriate to turn to this circuit for guidance on the applicable standards in sexual harassment cases.

The Ninth Circuit set forth the parameters of sexual harassment claims in employment in Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991). There, an Internal Revenue Service agent became the object of another agent’s affections. He wrote her notes, asked her for dates, and otherwise made the working environment extremely uncomfortable for her with his unsolicited attention. 924 F.2d at 873-75. After attempting to resolve the problem through administrative proceedings, Ellison finally sued. The district court granted summary judgment for the government on the ground that plaintiff had “failed to state a prima facie case of sexual harassment due to a hostile working environment.” Plaintiff appealed. Id. at 875.

The Ninth Circuit reversed. The court noted first that “the required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct.” Id., quoting King v. Board of Regents of University of Wisconsin System, 898 F.2d 533, 537 (7th Cir.1990) (“[a]lthough a single act can be enough, … generally, repeated incidents create a stronger claim of hostile environment, with the strength of the claim depending on the number of incidents and the intensity of each incident.”)

The court explained that harassment should be analyzed from the victim’s perspective. Women’s viewpoints differ widely, the court acknowledged. But certain realities persist. Notably, women remain disproportionately vulnerable to rape and sexual assault, which can and often does shape women’s interpretations of words or behavior of a sexual nature, particularly if unsolicited or occurring in an inappropriate context. Id. at 879. Such differences in experience and perception are a regrettable function of the society we live in, not an inevitability grounded in biology.

Regardless of the source, though, the net result of the disparate experiences of women and men concerning harassment, as the Ninth Circuit recognized, is that a single standard perpetuates inequalities: “a sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women.” Id. at 879. *1398 The goal is a level playing field and “a gender-conscious examination of sexual harassment enables women to participate in the workplace on an equal footing with men.” Id. The court added: “By acknowledging and not trivializing the effects of sexual harassment on reasonable women, courts can work towards ensuring that neither men nor women will have to `run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living.'” Id. at 879-80, quoting Henson v. Dundee, 682 F.2d 897, 902 (11th Cir.1982).[2]

Applying the reasonable woman standard to the facts, the Ninth Circuit did not find Ellison’s reaction to be hyper-sensitive:

We believe that a reasonable woman could have had a similar reaction. After receiving the first bizarre note from Gray, a person she barely knew, Ellison asked a co-worker to tell Gray to leave her alone. Despite her request, Gray sent her a long, passionate, disturbing letter. He told her he had been “watching” and “experiencing” her; he made repeated references to sex; he said he would write again. Ellison had no way of knowing what Gray would do next.

Id. Despite the lack of evidence of any malicious intent on Gray’s part, the court refused to regard Gray as a “modern-day Cyrano de Bergerac wishing no more than to woo Ellison with his words.” Id.

In the instant case, plaintiff has alleged several incidents in which defendant Rickell made “off-color, flirtatious and unwelcome remarks.” In addition, she has alleged an incident of offensive touching, which, if proved, would constitute a sexual battery under California Civil Code § 1708.5.[3]Any such touching would support a sexual harassment claim under the federal Fair Housing Act. Particularly where, as here, the alleged battery was committed (1) in plaintiff’s own home, where she should feel (and be) less vulnerable, and (2) by one whose very role was to provide that safe environment, defendants’ contention that plaintiff has failed to allege “conduct that was so severe or pervasive to `alter the conditions’ of plaintiff’s housing environment” and has failed to “allege an `abusive’ housing environment” resulting from defendants’ conduct is not well-taken. There are few clearer examples of classic sexual harassment than an unpermitted, allegedly intentional, sexual touching. Under no circumstances should a woman have to risk further physical jeopardy simply to state a claim for relief under Title VIII. Plaintiff has adequately alleged the requisite offensive housing environment. The motion to dismiss this claim is denied.[4]

C. Other Claims

1. Claims Subject to Court Ruling on Demurrer

Before this case was removed, defendants demurred successfully to the causes of action for negligent hiring, negligent supervision, and negligent infliction of emotional distress. Plaintiff was given leave to amend the first two, but did not do so. The court did not give plaintiff leave to amend the negligent infliction cause of action as to the property owner, defendant Caras.

On removal, the state court’s rulings stand, unless or until modified by a federal court. Fed.Civ.Proc., § 2:1018, citing Salveson v. Western States Bankcard Ass’n, 525 F. Supp. 566 (N.D.Cal.1981). Thus, Caras is hereby dismissed (again) from the sixth cause of action for negligent infliction of emotional distress.

*1399 As for the other two claims, the court granted the demurrers on the grounds stated in the papers, specifically, failure to state a cognizable duty owed to plaintiff. At oral argument on October 17, 1994, plaintiff’s counsel agreed that the motion to dismiss these claims should also be granted.

2. Ralph Civil Rights Act

Plaintiff’s Seventh Cause of Action asserted a violation of the Ralph Civil Rights Act of 1976, Civil Code § 51.7, which provides in relevant part:

All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation, sex, or position in a labor dispute. The identification in this subdivision of particular bases of discrimination is illustrative rather than restrictive.

Defendants have challenged the claim with respect to Caras, arguing that only the actual harasser is potentially liable for any violation. Defendants relied on a series of cases in which courts have declined to apply the doctrine of respondeat superior to hold school district employers liable for the sexual torts of their employees.

It is, of course, well-established under California law, which controls on this claim, that the doctrine of respondeat superior may support a finding of employer liability for “torts committed by an employee within the scope of employment.” Mary M. v. City of Los Angeles, 54 Cal. 3d 202, 208, 285 Cal. Rptr. 99, 814 P.2d 1341 (1991), citing Perez v. Van Groningen & Sons, Inc., 41 Cal. 3d 962, 967, 227 Cal. Rptr. 106, 719 P.2d 676 (1986). The California Supreme Court affirmed the rationale for the doctrine as “based on `”a deeply rooted sentiment”‘ that it would be unjust for an enterprise to disclaim responsibility for injuries occurring in the course of its characteristic activities.” Id. at 208, 285 Cal. Rptr. 99, 814 P.2d 1341 (citations omitted).

In Mary M., the California Supreme Court stated again that for respondeat superior to apply, plaintiff had to “prove that the employee’s tortious conduct was committed within the scope of employment.” Id. at 209, 285 Cal. Rptr. 99, 814 P.2d 1341. That is, courts should inquire as to whether the risk may be fairly regarded “`as typical of or broadly incidental’ to the enterprise undertaken by the employer.” Id. (citations omitted). Even conduct that “violates an employee’s official duties or disregards the employer’s express orders may nonetheless be within the scope of employment.” Id. Tortious acts that do not benefit the employer or that are willful or malicious in nature may still be within the scope of employment. Id. Moreover, “[t]he doctrine of respondeat superior applies to public and private employers alike.” Id.

The California Supreme Court reiterated that courts must also consider three policy objectives in determining whether the doctrine of respondeat superior applies in a particular case. First, courts must evaluate whether imposing liability “may prevent recurrence of the tortious conduct” by “`creating a strong incentive for vigilance by those in a position “to guard substantially against the evil to be prevented.”‘” Id. at 214, 285 Cal. Rptr. 99, 814 P.2d 1341 (citation omitted). Second, courts consider whether imposing liability will “give greater assurance of compensation to the victim.” Id. at 215, 285 Cal. Rptr. 99, 814 P.2d 1341. And third, courts are to determine whether it is appropriate to “spread[] the risk of loss among the beneficiaries of the enterprise[.]” Id. at 216, 285 Cal. Rptr. 99, 814 P.2d 1341.

Whether certain conduct, such as the unwanted touching and allegedly offensive remarks here, occurs within the scope of employment is ordinarily a question of fact, unless the facts are undisputed. Farmers Insurance Group v. County of Santa Clara, 26 Cal. App. 4th 1154, 31 Cal. Rptr. 2d 874, 878 (1994). The Court cannot make factual determinations on a motion to dismiss; rather, the inquiry is whether the facts as alleged are sufficient to state a claim.

In the instant case, plaintiff has alleged that defendant Rickell was the resident manager and was employed by defendant Caras. Plaintiff further alleged that “each of *1400 the Defendants herein was, at all times relevant to this action, the agent, employee, representing partner, or joint venturer of the remaining Defendants and was acting within the course and scope of that relationship.” FAC, ¶ 6 (emphasis added). Moreover, the occasion for Rickell’s presence in plaintiff’s apartment was to repair a leaky shower faucet, that is, to perform one of his duties as resident manager. FAC, ¶ 11. It is thus reasonable to infer from the facts that Rickell was on the premises, that is, in the bathroom of Ms. Beliveau’s unit, on a job-related task.

There is little question that courts have demonstrated ambivalence concerning the proper characterization of an employee’s behavior when he allegedly commits a sexual battery or rape while “on duty.” The California Supreme Court found the City of Los Angeles to be liable when one of its police officers raped a woman after he took her home when she performed poorly on a field sobriety test. Mary M. v. City of Los Angeles, supra, 54 Cal. 3d at 214, 285 Cal. Rptr. 99, 814 P.2d 1341. The Supreme Court concluded in that case that the determination to impose liability on an employer required the court to decide whether doing so would achieve the three policy objectives. In Mary M., the Court emphasized that police officers’ duties included use of force when the occasion merited it. The Court found sexual assault to be “broadly incidental to the enterprise of law enforcement,” recognizing implicitly that rape is an act of force and violence, not sex. Id. at 218, 285 Cal. Rptr. 99, 814 P.2d 1341. As a result, imposing liability on the City of Los Angeles was consistent with the policy objectives of the respondeat superior doctrine.

Decisions following Mary M., however, have not made it possible to articulate a bright line rule on when respondeat superior ought to apply. For example, in Debbie Reynolds Professional Rehearsal Studios v. Superior Court, 25 Cal. App. 4th 222, 30 Cal. Rptr. 2d 514 (1994), the Court of Appeal determined that the defendant dance studio could not be held vicariously liable for the alleged batteries and molestation that one of the dance instructors committed against plaintiff: “His wrongful conduct was so divorced from his duties and work that, as a matter of law, it was outside the scope of his employment. He was hired to teach dance, not to molest, abuse, or threaten minors. Sexual abuse simply is not typical of or broadly incident to the enterprise undertaken by petitioner.” Id. at 227, 30 Cal. Rptr. 2d 514. The court further found that the abuse was not foreseeable, which made it unfair to require the employer to bear the cost of the loss. Id. at 227-28, 30 Cal. Rptr. 2d 514. The court’s decision comported with the school district-employee line of cases, leaving Mary M. to support an exception for sexual assaults by police officers to the “rule” of no respondeat superior liability.

Less than six months later, however, another division of the same district court of appeal appears to have confused the issue somewhat. In Morin v. Henry Mayo Newhall Memorial Hospital, 29 Cal. App. 4th 473, 34 Cal. Rptr. 2d 535 (1994), the court denied a hospital’s motion for summary judgment. The hospital had contended that respondeat superior could not apply to render it liable for the sexual battery committed by its ultrasound technician on a pregnant patient. The court relied on Mary M., but, for obvious reasons, did not analogize the police officer’s and ultrasound technician’s respective abilities to use force in the scope of their employment. Rather, the court of appeal stressed the similarities in the “indicia of authority” each employee possessed, which led the plaintiffs in each case to trust the wrongdoer. The court of appeal explained that, as in Mary M., abuse of the type that actually occurred was foreseeable and justified imposing the resulting costs on the hospital. The court of appeal then attempted to distinguish the authority and position of trust that a teacher possessed from that reposed in the ultrasound technician so as to support the decision to apply the respondeat superior doctrine. Id. at 479-81, 34 Cal. Rptr. 2d at 539.

As the above examples demonstrate, the line-drawing in the subset of respondeat superior cases involving sexual assaults and batteries is highly fact-specific. As discussed, plaintiff here has plainly alleged facts *1401 from which the Court may infer that defendant Rickell was acting within the scope of his employment when he purportedly committed the acts of sexual battery. He occupied a position of trust which allowed him to gain access to plaintiff’s home. Whether, as the resident manager, his duties were more akin to those of a police officer or an ultrasound technician, thus supporting application of respondeat superior, or whether he was more like a teacher, which might allow the building owner, defendant Caras, to escape liability, requires the Court to make (necessarily) artificial distinctions. The Court declines to do so at this stage of the proceedings. Plaintiff has alleged facts adequate to state a claim under the Ralph Civil Rights Act,[5] and the motion to dismiss this cause of action is denied.

3. Unruh Civil Rights Act

The Unruh Civil Rights Act, Civil Code § 51, provides in relevant part:

All persons within the jurisdiction of this state are free and equal, and no matter what their sex, color, religion, ancestry, national origin, or disability are entitled to the full and equal accommodations, advantages, privileges, or services in all business establishments of ever kind whatsoever.

The Unruh Civil Rights Act is to be liberally construed. Lambert v. Mandel’s of Cal., 156 Cal. App. 2d Supp. 855, 856, 319 P.2d 469, 470 (1958); Crowell v. Isaacs, 235 Cal. App. 2d 755, 757, 45 Cal. Rptr. 566, 567 (1965); Winchell v. English, 62 Cal. App. 3d 125, 128, 133 Cal. Rptr. 20, 21 (1976). Those engaged in sale or rental of real property are covered by the Act. 58 Ops.Atty.Gen. 608 (August 21, 1975).

Defendants contend that Civil Code § 51 does not by its term prohibit sexual harassment. Defendants rely on Harris v. Capital Growth Investors XIV, 52 Cal. 3d 1142, 278 Cal. Rptr. 614, 805 P.2d 873 (1991). Although the California Supreme Court did decide in Harris that economic discrimination and sex discrimination based on disparate impact were not cognizable under the Unruh Act, the Court nonetheless described the liberal construction of Civ.C. § 51 at considerable length. It may well be the case that the California Supreme Court will not, ultimately, allow sexual harassment claims under the Unruh Act. But it has not precluded these claims yet, and both the policy of liberal construction and the plain language of the provision should permit plaintiff to go forward. The motion to dismiss on this claim is denied.

4. Breach of the Covenant of Good Faith and Fair Dealing

The Second Restatement of Contracts, quoted in 1 B. Witkin, Summary of California Law, “Contracts” (9th ed. 1987) § 744, provides that “[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” Plaintiff did not contest defendants’ argument that plaintiff has no contract with Rickell and that Caras is not alleged to have done anything to breach the rental agreement. Def. Mot., pp. 19-20. As plaintiff has not even alleged a breach of contract claim in the FAC, she would seem to be missing a key element of her breach of implied covenant claim, whether pled in contract or tort. In any event, at oral argument, plaintiff’s counsel consented to dismissal of this claim.

5. Breach of the Covenant of Quiet Enjoyment

As Professor Witkin has explained, “[i]n every lease, there is an implied covenant by the lessor of quiet enjoyment and possession during the term.” 4 B. Witkin, Summary of *1402 California Law, “Real Property” (9th ed. 1987), § 573 (emphasis in original); Civ.C. § 1927.[6] Witkin added that the “covenant is a warranty by the lessor against his own acts, not against those of strangers.” Id. (emphasis in original; citations omitted). The covenant is breached by eviction actual or constructive. Id.

Here, plaintiff has alleged that she “continues to be, a resident of … the `RENTAL PREMISES[.]'” FAC, ¶ 2. As a result, she cannot state a claim for breach of the implied covenant of quiet enjoyment based on either actual or constructive eviction. This claim is therefore dismissed.

6. Intentional Nuisance

Nuisance is defined in the Civil Code as follows:

§ 3479. Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.

Quoting the Second Restatement of Torts, Witkin stated: “[Private nuisance] covers the invasion of the private interest in the use and enjoyment of land. In its origin it was purely tortious in character, and it has remained so. It is always a tort against land, and the plaintiff’s action must always be founded upon his interest in the land.” 11 B. Witkin, Summary of California Law, “Equity” (9th ed. 1990), § 122 (emphasis added). A single act can constitute a nuisance. Id., § 123 (citation omitted).

Assuming that plaintiff’s tenancy is an interest in land sufficient to confer standing for purposes of a nuisance claim (see Jones v. Kelly, 208 Cal. 251, 255 (1929)), it nevertheless does not appear that she has stated a nuisance claim based on Rickell’s conduct. In the case plaintiff cites, Stoiber v. Honeychuck, 101 Cal. App. 3d 903, 162 Cal. Rptr. 194 (1980), the court allowed a tenant to state a nuisance claim for the dilapidated and unsafe conditions of the rented premises. Plaintiff challenged the landlord’s and his agents’ failure to make repairs.

Here, though, the “nuisance” is Rickell’s alleged sexual battery, not his failure to make repairs. True, the incident occurred while he was in the apartment to repair the shower. This appears to be incidental, for nuisance purposes, to the harm plaintiff allegedly suffered. It is his unwelcome comments and offensive touching, combined with the fact he was the apartment manager, not his failure to make necessary repairs in her unit, that is the gravamen of her complaint. The motion to dismiss is also granted on this claim.

IV

CONCLUSION

For the reasons set forth above IT IS HEREBY ORDERED that defendants’ motion to dismiss with respect to the First, Seventh, and Eighth Causes of Action is denied. The motion regarding the Second, Third, Sixth, Ninth, Tenth, and Eleventh Causes of Action is granted without leave to amend.

NOTES

[1] One commentator has suggested that sexual harassment in the home is in some respects more oppressive: “When sexual harassment occurs at work, at that moment or at the end of the work day, the woman may remove herself from the offensive environment. She will choose whether to resign from her position based on economic and personal considerations. In contrast, when the harassment occurs in a woman’s home, it is a complete invasion in her life. Ideally, home is the haven from the troubles of the day. When home is not a safe place, a woman may feel distressed and, often, immobile.” Comment, “Home is No Haven: An Analysis of Sexual Harassment in Housing.” 1987 Wis.L.Rev. 1061, 1073 (Dec.1987).

[2] The court recognized that the “reasonable victim standard” would “classif[y] conduct as unlawful sexual harassment even when harassers do not realize that their conduct creates a hostile working environment.” Id. at 880. The burden, then, would be on employers to “educate and sensitize their workforce[.]” Id.

[3] Civ.C. § 1708.5(a) (1) provides that “A person commits a sexual battery who does any of the following: (1) Acts with the intent to cause a harmful or offensive contact with the intimate part of another, and a sexually offensive contact with that person directly or indirectly results.” Both “buttock” and “breast of a female” are “intimate parts” within the meaning of the statute. § 1708.5(d).

[4] The Court notes that, effective January 1, 1995, new California Civil Code § 51.9 will specifically authorize a cause of action for sexual harassment by, among others, a tenant against a landlord or property manager.

[5] The doctrine of respondeat superior also applies in the context of Federal Housing Act claims. Chicago v. Matchmaker Real Estate Sales Center, 982 F.2d 1086, 1096 (7th Cir.1992). Regardless of whether the principal authorized or prohibited the agent’s acts, the principal may still be liable if the acts were within the scope of the agent’s apparent authority. Moreover, “[a] principal cannot free itself of liability by delegating to an agent the duty not to discriminate.” Id. (citation omitted). As the Sixth Circuit added, “Federal courts have routinely applied these principles in fair housing cases and held principals liable for the discriminatory acts of their agents.” Id.

[6] Civil Code § 1927 provides: “An agreement to let upon hire binds the letter to secure to the hirer the quiet possession of the thing hired during the term of the hiring, against all persons lawfully claiming the same.”

Beliveau v. Caras, 873 F.Supp. 1393 (C.D. Cal. 1995)

 

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Robert G. Schwemm & Rigel C. Oliveri, A New Look at Sexual Harassment under the Fair Housing Act: The Forgotten Role of §3604(c)

Sexual harassment in housing is a significant national problem. Although less visible than the comparable problem in employment, sexual harassment in housing may be as prevalent and probably more devastating to its victims.  Nevertheless, relatively little attention has been paid to this issue or to the law that should govern it. Indeed, the law of sexual harassment in housing developed well after and in virtual lock -step with the law of sexual harassment in employment. Thus, courts have simply interpreted the Fair Housing Act (FHA) to prohibit sexual harassment to the same degree-and only to the same degree-as it is prohibited in employment by Title VII of the 1964 Civil Rights Act.  This is inappropriate. It is true that the FHA contains a “terms and conditions” provision that parallels the one in Title VII that has been the key to sexual harassment law in employment.  But the FHA also contains an additional provision-§ 3604(c)-that bans sexually discriminatory statements in a way that goes well beyond its Title VII counterpart. The availability of § 3604(c) as an additional weapon in the arsenal against sexual harassment in housing-and its lack of use by courts and litigants is the subject of this Article.

Recommended Citation:  Robert G. Schwemm & Rigel C. Oliveri, A New Look at Sexual Harassment under the Fair Housing Act: The Forgotten Role of § 3604(c), 2002 Wis. L. Rev. 771 (2002).

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Griff Tester, An Intersectional Analysis of Sexual Harassment in Housing

Research on sexual harassment in the workplace is extensive, yet research on sexual harassment in housing is extremely limited. In this study, the author qualitatively analyzes 60 cases of sexual harassment in rental housing to expand on recent research addressing this topic by examining the forms and processes of housing-related sexual harassment in more detail, with a particular focus on class and race. This study reveals that sexual coercion is the most common form of sexual harassment for women in housing. It also demonstrates the intersections of race, gender, and class in shaping this harassment. Landlords used their institutional authority in the housing context and racialized gender stereotypes to exploit tenants’ economic vulnerabilities and sexually coerce them. Landlords also used these strategies to defend themselves against complaints of harassment.

Tester, G. (2008). An Intersectional Analysis of Sexual Harassment in Housing. Gender & Society, 22(3), 349–366. https://doi.org/10.1177/0891243208317827

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Rigel C. Oliveri, Sexual Harassment of Low-Income Women in Housing: Pilot Study Results

Abstract

In recent months, high-profile and influential figures in media, government, and entertainment have been brought down by credible allegations that they have engaged in sexual misconduct. These revelations have sparked an important national discussion about the prevalence of sexual harassment in American society and the ways in which powerful people can use their positions both to exploit their vulnerable targets and to escape the consequences of their actions.

The conversation is a necessary starting point, but the focus on high-status workplaces overlooks other contexts in which sexual harassment occurs. This Article focuses on one overlooked, significant national problem: the sexual harassment and exploitation of low-income women by their landlords. Many published cases have dealt with the phenomenon, and the Department of Justice (“DOJ”) has filed many complaints against alleged harassers. Good academic articles in legal and social science literature also exist that discuss the subject from a largely theoretical perspective.4 But something crucial is missing: data. Unlike sexual harassment in the workplace, which has been exhaustively studied by academics of every stripe, there have been no reliable empirical studies about the nature and prevalence of sexual harassment in housing.

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Continental Can Co., Inc. v. State, 297 N.W.2d 241 (Minn. 1980)

Continental Can Co., Inc. v. State, 297 N.W.2d 241 (Minn. 1980) was the first coworker harassment case brought by Willie Ruth Hawkins, an African American woman who worked at the Continental Can Company in Eagan, Minnesota.

Starting in December of 1974, three of Hawkins’ white male co-workers repeatedly made explicit, sexually derogatory remarks and verbal sexual advances to Hawkins and touched her sexually. One of her coworkers, Cliff Warling, made racist and sexually abusive comment to Hawkins. Warling and other male coworkers told her that “a female has no  business in a factory” and “if a female would work [in] a factory, she has to be a tramp.”

Hawkins repeatedly complained to her supervisor but Continental did nothing. One supervisor told Hawkins that there was nothing he could do and that she had to expect that kind of behavior when working with men. In October 1975, the harassment of Hawkins escalated to physical violence. Warling approached Hawkins from behind while she was bending over and grabbed her between the legs. Hawkins complained immediately, but again Continental did nothing. A few days later, Hawkins’ husband came to the plant and confronted Warling, who denied the incident. When Mr. Hawkins returned later that evening to escort his wife home, they discovered that her car headlights were broken. Relations between the Hawkins and her coworkers deteriorated further, culminating in a coworker threatening Willie Ruth Hawkins with a gun in front of her children.

At that point, the Hawkins solicited the support of New Way Community Center and the Urban League, who threatened boycotts and adverse publicity if Continental did not respond. Continental then suspended two of the  harassers and held a plant meeting to inform all employees that Continental would not tolerate verbal or physical sexual harassment and discrimination. Fearing for her safety, Hawkins did not return to work and was later fired. She brought a lawsuit under state law and won, creating a precedent for the important principle that employer tolerance of hostile environment harassment by coworkers was sex discrimination.

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Williams v. New York City Housing Authority, 61 A.D.3d 62 (1st Dep’t 2009)

Williams v. New York City Housing Authority, 61 A.D.3d 62 (1st Dep’t 2009) established that the legal standard in New York City is not whether the harassing conduct was “severe or pervasive” but when looking at how someone is treated has that person been treated “less well” because of their gender. Thus, under the New York City Human Rights Law, conduct need not be “severe or pervasive” to constitute a hostile work environment, but instead the analysis is one of differential treatment and whether a victim has been treated “less well” than other employees in the workplace due to gender. In New York City a violation is defined as more than “petty slights and trivial inconveniences.” This standard was adopted into New York state law in 2019.

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Race-ing Justice, En-Gendering Power: Essays on Anita Hill, Clarence Thomas, and the Construction of Social Reality, edited by Toni Morrison (1993)

Race-ing Justice, En-Gendering Power: Essays on Anita Hill, Clarence Thomas, and the Construction of Social Reality, edited by Toni Morrison (1993).

“It was perhaps the most wretchedly aspersive race and gender scandal of recent times: the dramatic testimony of Anita Hill at the Senate hearings on the confirmation of Clarence Thomas as Supreme Court Justice. Yet even as the televised proceedings shocked and galvanized viewers not only in this country but the world over, they cast a long shadow on essential issues that define America.

In Race-ing Justice, En-gendering Power, Toni Morrison contributes an introduction and brings together eighteen provocative essays, all but one written especially for this book, by prominent and distinguished academicians—black and white, male and female. These writings powerfully elucidate not only the racial and sexual but also the historical, political, cultural, legal, psychological, and linguistic aspects of a signal and revelatory moment in American history.

With contributions by:
Homi K. Bhabha, Margaret A. Burnham, Kimberlé Crenshaw, Paula Giddings, A. Leon Higginbotham, Jr., Claudia Brodsky Lacour, Wahneema Lubiano, Manning Marable, Nellie Y. McKay, Toni Morrison, Nell Irvin Painter, Gayle Pemberton, Andrew Ross, Christine Stansell, Carol M. Swain, Michael Thelwell, Kendall Thomas, Cornel West, Patricia J. Williams”