Not My Problem. Landlord Liability for Tenant-on-Tenant Harassment.

Abstract

Tenant-on-tenant harassment because of a victim’s race, gender, or other protected status, is a severe and increasingly widespread problem often targeting vulnerable tenants. The creation of a hostile housing environment violates the federal Fair Housing Act (FHA), and victims may recover from their abusers, whether they are landlords or fellow tenants. But plaintiffs in two recent FHA lawsuits sought recovery from their landlords for something different: their landlords’ failure to intervene in and stop harassment committed by other tenants. These suits raise novel and important questions about the scope of the FHA, but the two courts disagreed about how the FHA’s language should be interpreted. This article demonstrates why the FHA should be interpreted to impose on landlords a duty to take reasonable steps to investigate and remedy tenant-on-tenant harassment that they know or should have known about. In the workplace, under Title VII, employers have a duty, flowing from statutory language nearly identical to the FHA, to take reasonable steps to prevent hostile work environments. Despite strong similarities between the FHA and Title VII in language and congressional intent, courts have been reluctant to import a parallel standard in the housing setting. This Article analyzes the Title VII analogy and illustrates that compelling reasons exist for courts to fully adopt the Title VII analogy in this emerging area of FHA law.