Bad neighbor stories are ubiquitous in New York. Sometimes it’s because some minor grievance blossoms into thermonuclear war. Other times, it’s because one neighbor is crazy. This time, it was because the neighbor was not just crazy, but racist. This isn’t an unusual combination.
Donahue Francis wanted to quietly enjoy his apartment and do nothing to give rise to Raymond Endres’ enmity. That didn’t stop Endres from screaming racial and religious slurs at Francis. Francis called the cops, who had a stern talk with Endres which accomplished nothing. Inexplicably, the cops didn’t take it any further when the screaming continued.
Poor Francis was caught in racist neighbor hell, so he turned to the landlord for help. The landlord did nothing, not even acknowledge his requests. When Endres’ lease expired, the landlord refused to renew, whereupon he was gone. But until then, Francis suffered his neighbor’s abuse.
Francis sued the landlord under the Fair Housing Act, Title VIII of the Civil Rights Act of 1968. The district court granted the landlord’s motion to dismiss, but the Second Circuit reversed.
Just over fifty years ago, spurred by the assassination of Dr. Martin Luther King, Jr., Congress enacted Title VIII of the Civil Rights Act of 1968, commonly referred to as the Fair Housing Act of 1968 (“FHA” or “Act”), 42 U.S.C. § 3601 et seq., a landmark piece of civil rights legislation that accompanied the Civil Rights Act of 1964 and the Voting Rights Act of 1965. The main question before us is whether a landlord may be liable under the FHA for failing to take prompt action to address a racially hostile housing environment created by one tenant targeting another, where the landlord knew of the discriminatory conduct and had the power to correct it. In holding that a landlord may be liable in those limited circumstances, we adhere to the FHA’s broad language and remedial scope and agree with the views of the United States Department of Housing and Urban Development (“HUD”), the agency tasked with administering the FHA.
Baked into this preface are some curious insights to the problem. First, the FHA has been around for more than 50 years, and yet no court has ever extended liability to a landlord for failure to “promptly address” tenant-to-tenant claims of racial hostility. Second, the plaintiff was supported by Obama Administration’s HUD, there being a rather aggressive expansion of the administrative reach at the time.
The issue isn’t the landlord’s actions, but the tenant’s, except to the extent that it would create a new duty on the part of the landlord to thought-police tenants for racism. It wasn’t that Endres was outrageous in his conduct, but that his conduct in screaming racial slurs was racist. Had Endres screamed that Francis was ugly and his mother wore army boots, it would have similarly violated Francis’ right to quiet enjoyment of his home, but wouldn’t have invoked the FHA.
But what does Endres’ racism have to do with the landlord? What was the landlord supposed to do about it?
In determining the scope of a landlord’s power, courts will of course consider that housing providers ordinarily have a range of mechanisms at their disposal to correct discriminatory tenant-on-tenant harassment, such as “issuing and enforcing notices to quit, issuing threats of eviction and, if necessary, enforcing evictions,” all of which are “powerful tools” that may be “available to a housing provider to control or remedy a tenant’s illegal [discriminatory] conduct.”
Apparently, the circuit majority has never walked across Centre Street to Landlord/Tenant court, as one doesn’t “enforce evictions” until one gets a court to grant one. But while these are “tools,” if one deems legal process a tool, available to a landlord, it places a significant burden on a landlord to “fix,” from losing the rent for an apartment to the cost of pursuing legal proceedings. These may not bring tears to anyone’s eye on behalf of poor landlords, even though it would apply to mom & pop landlords as well.
But another issue that fails to make it onto the circuit’s radar is how the landlord would know whether a tenant actually engaged in conduct giving rise to FHA liability. Is the complaining tenant telling the truth? Are the complaints sufficiently bad as to give rise to an FHA violation? There is no test for how “severe and pervasive” conduct must be before landlord liability kicks in. There is no mechanism for the landlord to determine whether the complaints are true.
Even if the landlord is compelled to leap into the middle of the fray, someone could get tossed out on the street. Who should end up homeless? What if the crazy person is the one using complaints of racism to oust the neighbor he hates? How would a landlord know which neighbor is the bad one?
And if these issues strike a familiar note, it’s because these are the same problems that exist in the Obama Administration’s overreach on Title IX, making colleges liable for student-on-student sexual assault.
In dissent, Judge Debra Ann Livingstone points out the majority’s importing Title VII concepts into Title VIII and the influence of the Obama Administration’s bureaucratic extension of civil rights laws to create attenuated liability.
At bottom, the majority’s conclusion today rests on neither the FHA’s text nor its precedent, but on drawing an analogy to Title VII and its “hostile work environment” cases, as recently endorsed by HUD. To prevail on a hostile work environment claim under Title VII, a plaintiff need not demonstrate that the employer himself engaged in the alleged harassment nor offer evidence of discriminatory intent on the employer’s part. Instead, a negligent employer can
be liable “when a co-worker harasses the plaintiff.” Vance v. Ball State Univ., 570 U.S. 421, 427 (2013). Relying heavily on the 2016 HUD Rule promulgated after this litigation began, the majority becomes the first court to import into the FHA context a theory of liability lifted directly from Title VII case law.
Even assuming honesty, what’s a landlord to do if one tenant complains about the racially hostile living environment if another tenant wears a MAGA hat? What of the First Amendment implications? Would a landlord hold firm and risk liability, or just put someone on the street based on the sensibilities of one tenant’s perception of another’s political correctness?
The facts of this case were egregious, and few will defend Endres’ conduct. But if it’s the landlord’s duty to evict upon complaint of racism, upon pain of liability under the FHA, the fiasco of Title IX could now morph into homelessness for whomever the woke deem deplorables.