Court Imputes Liability for Discrimination to Landlord

In Wetzel v. Glen St. Andrew Living Community, LLC, the United States Court of Appeals for the Seventh Circuit held that a landlord can be found liable under the Fair Housing Act (“FHA”) for failing to protect a tenant from known, discriminatory harassment by other tenants. 

The issue before the court concerned the treatment of Ms. Wetzel at St. Andrew, a senior residential community. Ms. Wetzel moved into the community after her partner passed away, and subsequently endured physical and verbal harassment from other residents based on her sexual orientation. Ms. Wetzel sought relief from St. Andrew’s staff, who were apathetic and dismissed the other tenants’ behavior as accidental. Staff members subsequently restricted Ms. Wetzel’s access to public areas, halted her cleaning services, and in one instance, physically assaulted Ms. Wetzel.

Ms. Wetzel brought suit against St. Andrew under the FHA, alleging that it failed to ensure a non-discriminatory living environment. St. Andrew moved to dismiss the case, arguing that the FHA does not apply to post-acquisition harassment and that a landlord is not liable under the FHA for failure to stop tenant-on-tenant harassment unless the landlord’s in-action was due to a discriminatory animus.  The district court agreed with St. Andrew and dismissed the suit. Ms. Wetzel appealed to the Seventh Circuit Court of Appeals.

In reviewing the issues presented, the Seventh Circuit established that the protections afforded by the FHA do not evaporate once a tenant takes possession of the property. The Court instead framed the issue as to whether the FHA covers the particular kinds of post-acquisition discrimination that Ms. Wetzel suffered. A plaintiff must show the following three elements to bring a claim for discriminatory harassment that unreasonably interferes with the use and enjoyment of a home also referred to as a hostile housing environment under the FHA: (1) that she endured unwelcome harassment based on a protected characteristic; (2) that the harassment was severe or pervasive enough to interfere with the terms, conditions, or privileges of her residency, or in the provision of services or facilities; and (3) that there is a basis for imputing liability to the defendant.

In finding that Ms. Wetzel met the first requirement, the court noted that discrimination based on sexual orientation qualifies as discrimination based on sex, a protected characteristic under the FHA. The court also found that the harassment suffered by Ms. Wetzel constituted “severe and pervasive harassment.” Moving on to the third element, the court noted that the FHA does not set forth a test for landlord liability. The court therefore reviewed analogous liability under other anti-discrimination statutes such as Title VII and Title IX. The court reasoned that these interpretations of analogous anti-discrimination statutes establishes that the FHA provides a basis to impute liability to a landlord when the landlord had actual knowledge of the severe and pervasive harassment and was deliberately indifferent to it.

St. Andrew argued that it had minimal control over its residents’ actions; however, the Court determined that absolute control is not required for liability.  Based on its knowledge of the harassment, St. Andrew could have evicted any tenant pursuant to the tenant agreement which prohibited  tenants from  directly threatening the health and safety of other individuals or unreasonably interfering with the peaceful use of the residence by other tenants. Additionally, St. Andrew could have updated its tenant handbook to clarify the anti-harassment provision and suspended privileges for any tenants who violate that policy. 

The Court therefore reversed the district court’s judgment and remanded the case for further proceedings consistent with its opinion. 

Wetzel v. Glen St. Andrew Living Community, LLC, 901 F.3d 856 (7th Cir. 2018), cert. denied, 139 S. Ct. 1249 (2019)

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