2d Circuit Holds Landlord Liable As The New “Thought Police”

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.

31 thoughts on “2d Circuit Holds Landlord Liable As The New “Thought Police”

  1. Guitardave

    I fear this crap will lead to the same brain-dead, totally unfair “solution” that the gutless administrators of the high school i attended used. That is, throw them both out. ( my freakin’ head almost exploded when i heard a wuss-ass ‘guidance counselor’ say, “we’re not concerned with who ‘started it’…”) …and, of course, it will screw the landlords too.

    1. SHG Post author

      Under these circumstances, that’s not likely to happen. If a landlord evicted a tenant for complaining of a racially hostile environment, that would constitute a directly actionable violation of the FHA. This will be more like Title IX, where the accuser invariably wins.

      1. Guitardave

        You right. I was being a bit hyperbolic. But, like my example, it seems a little detective work would easily reveal who is in the wrong……but i know, its not that simple. I had a friend who was a landlord that got in some FHA hot water cause he evicted a genuine problem tenant….it was an expensive lesson for him.

        1. SHG Post author

          Oy, Dave. No, a little detective work would not “easily reveal” who is in the wrong. No, no, no, no. I have failed you.

          1. Guitardave

            OK, I’ll shut up and play my guitar . In my “anecdotal lived experience” it was very clear who was wrong…but i know….. it don’t mean shit as to the point of your post. My bad for bringing it up.

            PS. you sound like my Mother..”where did i go wrong?!?” 🙂 You have clarified a LOT of things for idiots like me, so you have not “failed”. I hope your not so silly as to believe its you job is to reverse the damage that years of drugs and lazy thinking can do…(Sisyphus’ gig looks easy in comparison). I think its your job to be clear and cogent, its mine to understand. The only one failing here is me. It most certainly is NOT a lack of clarity on your part …fortunately, i don’t feel bad about failing, or being stupid, as it appears to be natures default setting for most humans, and …..” what good is a fountain if your cups already full?”

            PSS: Thanks for debut on twitter. I LMAO when i saw the length of the thread.

            1. SHG Post author

              Remember, there is always the outlier anecdote that is simple and easy, but the question (for lawyers, anyway) is whether the rule can be applied broadly, since you have one rule and an infinite number of applications. Sure, some situations are easy. Others, not so much. The rules has to deal with all of them, not the easy one.

              Glad you’re cool with the twitter debut. I thought it went pretty well.

      2. B. McLeod

        And if the landlord tries to throw out the crazy guy, the next housing suit will be for “disability discrimination.” This is a no-win scenario for landlords.

  2. Turk

    Hey landlord, I don’t like the content of the music Greenfield’s playing. It’s racist/sexist/somethingist. I’m offended.

    I demand you do something about it.

    1. Kathleen Casey

      I don’t like the content of the things Greenfield’s thinking. Actionable for sure.

  3. Hunting Guy

    I’m triggered by your comment. My mother was a WAC in WW2. My wife is a retired Air Force JAG. They wore Army boots and both would take insult at your comment. The implication that they are ugly or incapable of functioning in civilian life is completely untrue.

    Times change.

    There is nothing insulting about women wearing Army boots.

  4. Sacho

    Isn’t this going to invariably lead to lawsuits against woke landlords for wrongful termination, similar to the lawsuits hitting universities now?

    Sounds like a pretty rough deal, but hey, landlords are capitalist scum anyway.

    1. SHG Post author

      For landlords, there is a procedural difference, as they can’t evict like colleges can expel. They need an eviction order from the local landlord/tenant court, so this will shift the problem to the local courts, where eviction proceedings will become the federal cases.

  5. B. McLeod

    I had the same thought about the court’s perception of the landlord’s “power to correct.” Before ruling on these types of housing cases, judges should be required to spend a year trying to run a multifamily complex for low and moderate income tenants.

  6. Elpey P.

    At least there wasn’t a tenant occupation of the landlord’s office with a list of demands. Yet. Hey hey, ho ho, this building’s name has got to go.

  7. Jake

    Here in civilized California landlords have a duty to enforce noise regulations with warnings and eviction. Why bother mucking about in the content of the noise?

    1. SHG Post author

      Noise can be objectively determined and its prohibition is content neutral. Yet again, the issues completely elude you.

      1. Jake

        You misapprehend. The racist rabble-rouser was both an asshole and noisy. (“That didn’t stop Endres from screaming”). I don’t know or care what the law says in NY because, well, I can’t hear racists from my porch in California. My point is the west is the best, ipso facto. I rest my case.

        1. Guitardave

          Damn, Jake. I thought i was gonna get the “the most useless un-deleted comment of the day” award…oh well…. in the words of Kurt Vonnegut “and so it goes”

  8. Bryan Burroughs

    Amazing to see how far the 1st Amendment has been demolished in the name of the Civil Rights Act. This is speech that the gov’t otherwise wouldn’t be able to restrict, but they are more than welcome to force landlords to do it for them.

  9. Matthew Scott Wideman

    This hits very close to home as I own rental property and a great deal of my practice is based in this area of law. In Missouri (and a lot of other jurisdictions) there isn’t a way to evict a tenant based solely on racism towards another tenant. It’s either for rent owed OR violation of the rental agreement. Just a nightmare all around.

    I can’t stand when the ivory tower judges put their fingers in their ears, in regards to how it actually works on the street level, and push an agenda.

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