Remediating Racism for Rent: A Landlord’s Obligation Under the FHA

Mollie Krent*† July, 2021

The Fair Housing Act (FHA) is an expansive and powerful piece of legislation that furthers equal housing in the United States by ferreting out discrimination in the housing market. While the power of the Act is well recognized by courts, the full contours of the FHA are still to be refined. In particular, it remains unsettled whether and when a landlord can be liable for tenant-on-tenant harassment. This Note argues, first, that the FHA does recognize liability in such a circumstance and, second, that a landlord should be subject to liability for her negligence in such a circumstance. Part I illustrates how the purpose and text of the FHA and analogous civil rights provisions suggest that a landlord should be held liable for her response to tenant-on-tenant harassment. Part II analyzes the standards of liability for tenant-on-tenant harassment that currently exist in the context of the FHA. Part III argues that a negligence standard of liability best accounts for the special status of the home and the unique nature of the landlord-tenant relationship.

Introduction

In 2010, Donahue Francis, a Black man, signed a rental lease agreement with Kings Park Manor (KPM).¹The quiet suburban community of Kings Park, New York, represented a change for Francis: he came there “in search of a better housing situation” after years of living in neighborhoods with higher crime rates.²In many ways, Francis’s tenancy in Kings Park—a predominantly white community in which nearly eight out of ten residents owned their homes³—neatly aligned with the goals of the Fair Housing Act (FHA), which was passed for the express purpose of furthering racial integration.⁴

But Francis did not find the peace he sought. By February 2012, Francis’s next-door neighbor Raymond Endres, a white man, began harassing him.⁵ Over several months, Endres called Francis a “fucking [n-word],” a “fucking asshole,”a “fucking lazy, god-damn fucking [n-word],” and he called out to Francis in the common areas or while Francis was within his own apartment with the door open.⁶ Endres even threatened Francis, saying “I oughta kill you, you fucking [n-word].”⁷ Francis contacted KPM and the property manager about Endres’s harassment four times.⁸ KPM took no action to address the harassment, despite the police having also notified KPM of the allegations and charging Endres with aggravated harassment.⁹ When KPM’s property manager contacted KPM’s owners seeking instruction, they “told her not to get involved.”¹⁰

Ultimately, the harassment continued up until Endres’s lease expired in January 2013 and he left the complex.¹¹ Francis sued both Endres and KPM for violating various provisions of New York state laws, the Civil Rights Act of 1866, and the FHA.¹² The Eastern District of New York dismissed the FHA claims, holding that the FHA only prohibited intentional discrimination and could not hold a landlord liable for a tenant’s harassment.¹³Francis then appealed to the Second Circuit.

Francis’s case against KPM presented novel questions for the Second Circuit: could a landlord be held liable for tenant-on-tenant harassment under the FHA and, if so, when?¹⁴This question had only been addressed explicitly by one other federal court of appeals, the Seventh Circuit, which in 2018 held that a landlord can be liable when she is deliberately indifferent to tenant-on-tenant harassment.¹⁵ But in its March 2021 en banc opinion, the Second Circuit took the opposite position, holding that a landlord could not be held liable for tenant-on-tenant harassment.¹⁶

Other courts of appeals who have yet to answer these questions should not follow suit. Liability in this context has great individual and national import. Reported instances of housing discrimination and hate crimes are on the rise.¹⁷ And harassment is especially invidious when it occurs in the victim’s home.¹⁸ A home is one’s castle: the space historically and culturally recognized as where one should have ultimate dominion.¹⁹ The home is particularly important to the most oppressed persons in society as a site necessary to their survival and liberation.²⁰ Unlike work or school, there can be no escape and no reprieve when one suffers harassment within the home.

Homes are the building blocks of any community, and courts need to pay careful attention to their collective composition. The United States remains extremely residentially segregated: the average white person lives in a neighborhood that is only 8percent Black and the average Black person lives in a neighborhood that is 35percent white.²¹ While rates of residential segregation show that the United States is becoming less segregated, Black Americans are more segregated than any other discrete racial or ethnic group.²² Research around housing choice points to fear of racial backlash as a factor preventing further integration.²³Clarifying a landlord’s duty under the FHA both not to discriminate in the renting of her properties and to ensure a harassment-free environment might quell some of the fear impeding further integration.²⁴

This Note will address two open questions: (1) whether landlords can be liable when a tenant harasses another tenant on the basis of a protected characteristic and (2) when landlords will be liable when a tenant harasses another tenant on the basis of a protected characteristic. The purpose of this Note is to argue that courts should recognize a negligence liability rule for landlords who fail to respond to tenant-on-tenant harassment. Such a rule fits into the regulatory scheme of the FHA, accords with other civil rights statutes, and furthers the policy goals of the Act.

Part I of this Note will answer the first question: the FHA should be interpreted to accommodate a landlord’s liability for tenant-on-tenant harassment because of the structure of the Act and because of how similar civil rights statutes make analogous harassment actionable against authority figures. Part II will examine the answers that have been presented so far with respect to the second question, namely the Department of Housing and Urban Development’s (HUD) negligence rule, the Seventh Circuit’s deliberate indifference rule, and the Second Circuit’s recent opinion in Francis II holding that landlords are not liable for tenant-on-tenant harassment. Part III will then explain why a negligence standard of liability is most proper for the housing context, arguing that such a rule best reflects the special status of the home and already aligns with the duties a landlord owes her tenants.

I. Interpreting the FHA to Bar Tenant-on-Tenant Harassment

Since the scope of the private cause of action in the FHA is a statutory-interpretation question, this Part uses the analytical tools courts usually employ when tackling such questions to uncover the doctrinal foundation of a landlord’s liability for tenant-on-tenant harassment under the Act. For example, when the Supreme Court decided in Texas Department of Housing and Community Affairs v. Inclusive Communities Project that disparate impact claims were cognizable under the FHA, it looked to the text of the FHA, congressional intent, and analogous civil rights statutes that had already been held to impose disparate impact liability.²⁵ This Part proceeds similarly, beginning with an analysis of the history, text, and purpose of the FHA and exploring the parallel liability rules in analogous contexts.

Many civil right statutes hold authority figures such as employers, schools, or prison guards liable for harassment, even under circumstances where they did not commit the harassment themselves. Comparing analogous civil rights provisions reveals that courts should also interpret the FHA to impose liability on a landlord for tenant-on-tenant harassment. While a few courts in addition to the Second Circuit have already held that landlords cannot be liable for tenant-on-tenant harassment,²⁶ those courts misunderstand the doctrinal foundation of this liability rule. This Note argues that the FHA prohibits tenant-on-tenant harassment and that a landlord can be liable for such conduct.

A. The FHA: Providing for Housing Access and Security

The FHA’s history, text, purpose, and interpretive relationship to analogous civil rights statutes form the statutory foundation upon which a landlord can be found liable for tenant-on-tenant harassment. In order for the FHA to prohibit such harassment, the statute first must be interpreted to protect a tenant in situations other than the acquisition of a home. The best reading of the FHA’s plain text and purpose is a broad one, under which the Act also protects tenants from harassment during their occupancy. The FHA fits into a patchwork of other civil rights causes of action that already recognize a defendant’s liability for action or inaction in response to harassment.²⁷

1. The FHA’s Origins

In response to the summer race riots of 1967,²⁸ President Lyndon B. Johnson established what became known as the Kerner Commission to investigate the root causes of racial unrest in the United States and offer potential solutions.²⁹The Commission’s report, published in March 1968, was bleak. It described the country as “moving toward two societies, one black, one white—separate and unequal.”³⁰ The Commission pointed to housing inequity as one of the causes of the widespread strife: Black Americans were more likely to live in housing that cost more than white Americans’ housing despite being three times more likely than white Americans to live in “overcrowded and substandard” housing.³¹

To quell racial violence and afford “common opportunities for all within a single society,”³² the Commission suggested a range of economic and social initiatives.³³ One suggestion was for the government to “[e]nact a comprehensive and enforceable Federal open-housing law to cover the sale or rental of all housing, including single-family homes.”³⁴ Roughly a month after the report’s publication, on April 4, 1968, Dr. Martin Luther King, Jr. was assassinated.³⁵ A week later, on April 11, 1968, Congress passed the FHA as Title VIII of the Civil Rights Act of 1968.³⁶

Like Title VII of the Civil Rights Act of 1964,³⁷ the FHA was designed to remedy the worsening racial divide in the United States.³⁸The FHA transformed the landscape of housing law by introducing a federal enforcement mechanism to root out overt and covert discrimination in housing.³⁹ The Act sought to bring all Americans within “a single society and a single American identity.”⁴⁰

2. The FHA’s Antidiscrimination Mandate

The FHA ferrets out discrimination in the housing market by prohibiting categories of conduct, which should include harassment that occurs during one’s tenancy. The three enumerated categories most relevant to this Note are (1) refusing to sell, rent, or negotiate housing, (2) making housing unavailable, or (3) “discriminat[ing] against any person in the terms, conditions, or privileges” of housing on the basis of a protected characteristic.⁴¹ The first category, which covers actions like refusing to sell to a person because of her protected characteristic, prohibits disparate treatment or conduct that treats a person less favorably on account of her protected characteristic.⁴² Such conduct is typically proven by the defendant’s discriminatory animus.⁴³ The second category, which covers actions like zoning decisions, prohibits conduct that has the effect of discriminating against a person because of her protected characteristic, even where no showing of discriminatory animus can be made.⁴⁴

Circuit courts differ on the reach of the third category of conduct: discrimination in the “terms, conditions, or privileges” of housing. If, as the Seventh, Ninth, and Tenth Circuits have held, the “terms, conditions, or privileges” of one’s housing preserve the enjoyment of one’s housing, then the FHA prohibits harassment.⁴⁵ But if that phrase relates only to acquiring housing, as the Fifth Circuit has held, then the FHA likely does not prohibit harassment.⁴⁶ Although the Supreme Court has yet to directly answer the question of the FHA’s post-acquisition applicability,⁴⁷ the Court has interpreted similar language in 42 U.S.C. § 1981, which prohibits racial discrimination in contracts, as evincing Congress’s intention to prohibit harassment after contract formation and preserve an employee’s enjoyment of the contract.⁴⁸ The Court’s decision in that analogous context is a thumb on the scale for the Tenth, Ninth, and Seventh Circuits’ broad interpretations of the FHA’s post-acquisition applicability.

Another key provision of the FHA is codified at 42 U.S.C. § 3617. It prohibits any retaliation against, interference with, or intimidation of a person seeking to exercise their fair housing rights.⁴⁹Circuit courts have differed on the reach of this section as well, with the Third, Sixth, Seventh, and Eighth Circuits holding that § 3617 applies to post-acquisition conduct regarding the enjoyment of one’s tenancy and the Fifth Circuit holding that § 3617 must apply only to acquisition conduct regarding the sale or rental of housing.⁵⁰

Viewed alongside § 3604, § 3617 supports the interpretation of the FHA as prohibiting hostile housing environments.⁵¹ Courts have held that § 3617 can be violated absent a violation of § 3604.⁵²So the FHA prohibits conduct that does not rise to the level of a § 3604 violation but might be comparable to such a violation. For example, while a typical violation of § 3604 might concern a person of color being told that an apartment is unavailable for rent because of her race, a violation of § 3617 might arise from a landlord threatening to evict a tenant after learning that her roommate is a person of color.⁵³ In other words, § 3617 prohibits conduct that threatens a tenant’s hold on her home even if it does not fully deprive her of it. Together, § 3604 and § 3617 should prohibit discrimination, intentional or unintentional, that interferes with a tenant’s enjoyment of her home, such as tenant-on-tenant harassment.⁵⁴

3. The FHA’s Reach: Access and Beyond

While courts of appeals have disagreed on the FHA’s reach, the congressional purpose of the Act should counsel in favor of interpreting the FHA to apply post-acquisition.⁵⁵ The stated purpose of the FHA is “to provide, within constitutional limitations, for fair housing throughout the United States.”⁵⁶ In its original proposed purposive language, Congress made its antidiscrimination plan explicit: “to prevent . . . discrimination . . . in the purchase, rental, lease, financing, use and occupancy of housing throughout the Nation.”⁵⁷The inclusion of the word “occupancy” evidences a reach beyond the point of housing access. The final purposive language, “to provide . . . for fair housing,” is broader and captures both the affirmative and preventative functions of the FHA.⁵⁸ It would be incoherent for Congress to enact legislation to realize the dream of an integrated society only to halt the application of that legislation once a person acquires the keys to her home. An integrated society is one that remains integrated.⁵⁹

4. Persons Subject to Suit Under the FHA

The language of the FHA allows for liability against a person even when she is not the one discriminating or harassing because the FHA does not identify defendants subject to suit. The FHA allows anyone who has suffered or believes she soon will suffer injury “by a discriminatory housing practice” to vindicate her rights, regardless of the perpetrating party.⁶⁰The FHA’s text details categories of prohibited discriminatory practices, defining “what is prohibited, not who is subject to those prohibitions.”⁶¹ In this way, the FHA is unlike its employment and education complements, which identify for whom it is illegal to engage in prohibited conduct.⁶² Congress has shown it knows how to limit liability by limiting the defendants subject to suit in other civil rights statutes. Because its language is purposefully “broad and inclusive,”⁶³ the FHA is even better suited than analogous civil rights statutes (which do recognize liability for third-party harassment) for imposing liability on defendants based on harassment by and of third parties.

B. Liability for Third-Party Harassment in Other Civil Rights Contexts

When faced with questions of first impression in interpreting a civil rights statute, courts often use rules established under other civil rights statutes as guideposts due to their similar phrasing and shared purposes. On the question of a landlord’s liability for tenant-on-tenant harassment, civil rights causes of action including Title VII, the Americans with Disabilities Act (ADA), Title IX, Bivens, and § 1983 are useful analogies. Each holds authority figures liable for their action or inaction in response to third-party harassment. Liability for third-party harassment is recognized across the different contexts of work, schools, and prisons because in each of these contexts the employees, students, or prisoners have relinquished some kind of control over their environment to these institutions and these institutions owe them some protection in return.⁶⁴ Because tenants—like employees, students, and prisoners—cede control over their environment to an authority figure, namely their landlord, it would be inconsistent within this patchwork of civil rights enforcement mechanisms for the FHA not to similarly protect the home by recognizing a landlord’s liability for tenant-on-tenant harassment.

1. Title VII, the ADA, and Negligence

With language strikingly similar to the FHA,⁶⁵Title VII and the ADA hold an employer liable when an employee or a customer harasses another employee and the employer’s negligence was a cause of the harm to the harassed employee.⁶⁶ In other words, an employer’s liability turns on the reasonableness of her use of, or her failure to use, means within her control to remediate the prohibited conduct of which she knew or should have known.⁶⁷

Title VII and the ADA impose liability on an employer when he has constructive knowledge, not actual knowledge.⁶⁸ An employer has constructive knowledge where the employer has enough information that would suggest that harassment is occurring.⁶⁹ With a constructive notice and negligence standard, an employer has an affirmative duty to take steps to discover and remedy the prohibited acts.⁷⁰

For example, in Dunn v. Washington County Hospital, the Seventh Circuit held that the defendant-hospital was liable for the sexual harassment that a doctor, an independent contractor with the hospital, inflicted on the plaintiff-nurse, an employee.⁷¹ Initially, the district court threw out the suit because the hospital could not be liable for an independent contractor’s actions under agency principles.⁷² The Seventh Circuit reversed the district court, holding that the employer’s liability for the harassment of an employee did not turn on the relationship between the hospital and the harasser.⁷³ The hospital would be just as liable for its negligence if the harasser were a patient or even “a macaw.”⁷⁴ The court reasoned that, for the purpose of liability, the identity of the harasser does not matter; what matters is how an employer responds to the harassment.⁷⁵

2. Title IX, § 1983, Bivens, and Deliberate Indifference

Similar to the employment context, authority figures like school officials and prison guards can be liable for student-on-student harassment or prisoner-on-prisoner harassment.⁷⁶ In those contexts, the authority figures are liable for their deliberate indifference to the harassment.

In order to be held liable for damages under Title IX for third-party harassment, the defendant must have been (1) deliberately indifferent to (2) known acts of harassment and mus (3) exert substantial control over the harasser and the environment of harassment.⁷⁷ For example, in Davis ex rel. LaShonda D. v. Monroe County Board of Education, the plaintiff sued a school on behalf of her minor daughter who had suffered repeated sexual harassment from a classmate.⁷⁸ Both the plaintiff and the minor daughter reported the harassment to the school, but the school took no action.⁷⁹ The Court held that because Title IX is Spending Clause legislation and a recipient of federal funds must be put on notice of the conditions Title IX attaches to federal funding, a school could only be liable under Title IX if it displays deliberate indifference to known acts of harassment.⁸⁰ The Court interpreted the language of Title IX and its enforcement scheme to place schools on notice that they could be liable for their own intentional conduct.⁸¹ Because of this intent requirement, which differentiates Title IX from Title VII, and Title IX’s language, the Court held that for a school to be liable it must exert substantial control over both the harasser and the context where the harassment took place.⁸²

Similar to Title IX, claims of third-party harassment are cognizable under § 1983 and Bivens causes of actions when authority figures are deliberately indifferent to harassment. Section 1983 and Bivens causes of actions allow individuals to mount damages suits against individual government officials, federal or local, that deprive them of their constitutional rights.⁸³ In order for a government official to be liable for third-party harassment that deprives individuals of their constitutional rights, the official must have had actual notice of the harassment.⁸⁴ For example, a federal, state, or municipal corrections officer will be liable for prisoner-on-prisoner harassment which deprives a plaintiff of her Eighth Amendment protections where the officer had actual notice of the harassment.⁸⁵ And while the Supreme Court has not directly answered the question of when a state or municipal official of a public school can be liable for her deliberate indifference to student-on-student harassment in violation of the Equal Protection Clause,⁸⁶ circuit courts have imported the actual notice requirement from Title IX.⁸⁷

Title IX, § 1983, and Bivens causes of action differ from Title VII, the ADA, and the FHA in important ways. While Title IX is a piece of Spending Clause legislation that covers conduct of schools receiving federal funds,⁸⁸ the FHA—not unlike Title VII—was passed pursuant to Congress’s authority under the Commerce Clause to regulate the housing market.⁸⁹ And in the case of § 1983 and Bivens actions, the underlying injuries are constitutional injuries, and “[m]ere negligent governmental conduct . . . cannot constitute a constitutional violation.”⁹⁰ Despite these differences among the different civil rights causes of action, they all recognize some form of liability for an authority figure’s action or inaction in response to acts of harassment between equals. The FHA should be read similarly.

II. Current Articulations of a Tenant-on-Tenant Liability Rule

While the FHA’s text, purpose, and relationship to other civil rights statutes support holding a landlord liable for tenant-on-tenant harassment in certain circumstances, the FHA on its face does not state what those circumstances should be. Where liability rules have been articulated—by Department of Housing and Urban Development (HUD) agency rulemaking, by the Seventh Circuit, and by the Second Circuit—these rules have differed significantly from one another. Borrowing from Title VII, the HUD Rule envisions a negligence standard of liability; borrowing from Title IX, the Seventh Circuit establishes a deliberate indifference standard of liability; and the Second Circuit forecloses such liability in the standard housing context. The HUD Rule is the most doctrinally justified rule and is best suited to furthering tenant protections.

A. The HUD Rule: Negligence Liability

In 2016, HUD promulgated a regulation clarifying in relevant part that a person could be directly liable for a third party’s prohibited conduct, which would include harassment.⁹¹ According to HUD, this rule clarified its interpretation of the FHA rather than creating new or additional theories of liability.⁹² HUD wanted to clarify its position to account for the added intrusiveness of harassment in the home as compared to the workplace.⁹³

HUD borrows much of its landlord-liability rule from Title VII.⁹⁴ Like employers who allow a hostile workplace, landlords will be liable for their negligence in the face of a third party’s discriminatory conduct, including for creating a hostile housing environment.⁹⁵ To make out a claim under the HUD Rule, a tenant must demonstrate that (1) a third party subjected her to a hostile housing environment; (2) her landlord knew or should have known about the hostile housing environment; and (3) the landlord did not act to end the harassment, though she could have.⁹⁶

The Rule’s second element amounts to a constructive notice requirement. Despite criticism on this point during the notice-and-comment period, HUD retained the “knew or should have known” standard to account for situations in which an uninvolved party might report observed harassment.⁹⁷ HUD uses this standard to make clear its expectation that a landlord take affirmative steps to provide a welcoming and harassment-free home.⁹⁸ In this way, like Title VII, the FHA obligates landlords to employ a variety of tools to protect their tenants from harassment, up to and including eviction.⁹⁹

B. The Seventh Circuit Rule: Deliberate Indifference

Two years after the HUD Rule was promulgated, the Seventh Circuit became the first court of appeal to decide when a landlord would be held liable for tenant-on-tenant harassment. In Wetzel v. Glen St. Andrew Living Community, LLC, Marsha Wetzel described the plight she faced as a gay woman living in a senior living facility.¹⁰⁰A few months into her tenancy and until she commenced suit, Wetzel was subjected to cotenant verbal harassment (“fucking [d-word],” “fucking [f-word],” “homosexual bitch”), threats (a resident said he would “rip [Wetzel’s] tits off”), and violence (a resident struck her so hard in the back of the head that she fell off the motorized scooter she depended on for mobility).¹⁰¹The Seventh Circuit held that defendants would be liable if they had actual knowledge of the harassment and were deliberately indifferent to it.¹⁰²

In developing that liability test, the court looked to Title VII and Title IX as blueprints, ultimately concluding that Title IX was the more appropriate guideline.¹⁰³ In so doing, the Seventh Circuit failed to account fully for the similarities of the parallel Title VII context and overestimated the similarities of the parallel Title IX context. Examining the employer context, the Seventh Circuit pointed to the Supreme Court’s decision in Burlington Industries, Inc. v. Ellerth, a case where a supervisor harassed an employee and the Court looked to agency principles to determine when to apply vicarious liability to an employer.¹⁰⁴ Despite finding no textual basis for applying different liability rules in the FHA than in the Title VII context, the Seventh Circuit declined to apply the Title VII rule to the FHA because of the differences between the workplace and the home.¹⁰⁵ In the workplace, agency principles counsel for imputing liability vicariously to an employer for the acts of her employee based on the scope of that employee’s duty and her relationship to the employer.¹⁰⁶ Tenants neither have such a clear duty to their landlords nor represent their landlords in the housing context.

This difference between the employment and the housing context also led the Seventh Circuit to decline to apply the HUD Rule because the Rule borrowed too much from Title VII principles.¹⁰⁷ However, the Seventh Circuit neglected to consider the Title VII contexts unrelated to agency principles in which an employer is directly, not vicariously, liable for his employee’s discriminatory conduct. Such is the case, for example, where an employer is liable for its negligence in failing to prevent or remediate a customer’s harassment of an employee.¹⁰⁸

The Seventh Circuit then turned to the Title IX context and adopted the Supreme Court’s holding in Davis, where a school board could only be liable if it was deliberately indifferent to known student-on-student harassment in schools.¹⁰⁹The Seventh Circuit imported the Title IX standard for liability into the FHA despite the fact that Title IX—but not the FHA—is Spending Clause legislation and thus requires intentional conduct for liability.¹¹⁰ The Supreme Court, however, has already held that a finding of intent is not necessary for liability in the context of the FHA.¹¹¹As a result, the Seventh Circuit introduced an incongruity into FHA doctrine.

C. The Second Circuit Rule: No Liability Without Discriminatory Intent

In its first opinion (later withdrawn), the Second Circuit was guided by the text, history, and jurisprudence of the FHA, as well as the HUD Rule, when it held a landlord liable for her negligence in responding to tenant-on-tenant harassment.¹¹² In its en banc opinion, however, the Second Circuit stated that a landlord cannot be liable for failing to respond to tenant-on-tenant harassment.¹¹³ Specifically, the Second Circuit held that a landlord does not violate the FHA absent discriminatory intent.¹¹⁴ The court assumed that a landlord could be liable for her deliberate indifference to complaints of harassment but only where the landlord “exercised substantial control over the context in which the harassment occurs and over the harasser.”¹¹⁵ Something more than the standard landlord-tenant relationship would be necessary for a landlord’s deliberate indifference to give rise to liability under the Second Circuit’s rule.

The en banc opinion rejected analogy to the Title VII employment context because of the lack of agency relationship in the housing context and the degree of control employers have over their agents.¹¹⁶ Like the Seventh Circuit, the Second Circuit seems to have ignored those cases in which employers are liable for their negligence in responding to employees or customers who harass other employees with whom they do not have an agency relationship.¹¹⁷

The en banc court omitted any real discussion of the text, history, or purpose of the FHA, quickly setting aside similarities between the FHA and Title VII based on their similar verbiage.¹¹⁸ Instead, its reasoning for foreclosing liability turned on the practical difficulties of asserting control in the housing context. Though the court acknowledged that other laws may compel landlords to control third parties,¹¹⁹ it denied that the power to evict is sufficient to hold a landlord liable when he fails to protect a tenant from another tenant.¹²⁰ But this is wrong on two key grounds. First, the case the Second Circuit cited for this proposition revolved around whether the power to evict gave the landlord a general duty to protect clients from purely personal disputes.¹²¹ Such conduct is not prohibited by the FHA,¹²² but the FHA does impose additional duties on landlords to keep their housing free from discrimination.¹²³ Second, landlords have much more than just eviction at their disposal. They can put up antiharassment signage, write a letter, threaten eviction, assess fines, restrict access to common areas and services like parking and laundry, offer to relocate either party, cover the costs associated with the harassed tenant’s move, or refer the dispute to a city civil agency with relevant expertise.¹²⁴ Any of these actions might remedy the harm from tenant-on-tenant discriminatory harassment.

The court puzzlingly said that because the landlord owes a contractual duty that makes her liable for the acts of third parties in some circumstances, tenants may already have avenues to seek contractual remedies such as rent abatement.¹²⁵ This is incorrect because it misses the very work that the FHA is doing. For one, the FHA offers remedies unavailable in most housing court actions.¹²⁶ Additionally, the court wrongly suggests that a landlord’s liability for tenant-on-tenant harassment is anomalous with tort principles.¹²⁷ However, the Restatement (Second) of Torts recognizes circumstances under which one can be liable for a third party’s criminal or tortious conduct without any agency relationship.¹²⁸ This is critical because, as the Second Circuit pointed out, Congress passed the FHA intending to incorporate background tort principles.¹²⁹

Moreover, the nature of compensatory damages makes them insufficient here by definition. Compensatory damages aim to make an injured person whole by compensating them for lost value.¹³⁰ Here, compensation in the form of a rent abatement means that the only harm being compensated is the value the tenant lost in the apartment.¹³¹ The only harm recognized by the protected-characteristic harassment, then, is an individual one to the tenant’s property and not to the tenant’s person, the entire building, the community, or the statutory scheme as a whole. It cannot constitute “fair housing” when a suffering tenant turns to her landlord and is given a coupon to compensate the value she lost by living in a place where her dignity was compromised and her safety threatened. The FHA requires more to acknowledge the full scope of harms it seeks to redress.

III. Negligence and the Special Status of the Home

The HUD Rule for landlord liability for tenant-on-tenant harassment, a negligence standard adapted from the Title VII context, is the best liability rule to apply to landlords when there is tenant-on-tenant harassment. It is supported by the text and history of the FHA and consistent with similar liability rules in other civil rights contexts. Even further, a negligence standard is preferable to any other available standard of liability because it better aligns with analogous civil rights schemes, accounts for the special status of the home, and reflects the common law landlord-tenant relationship.

A. The Space Between VII and IX

The text and purpose of the FHA protect a tenant against third-party harassment. Other civil rights statutes, including Title VII and Title IX, have recognized liability for third-party harassment either for an authority figure’s negligence or for their deliberate indifference. Unlike a negligence standard, in which a lapse in duty leads to liability, deliberate indifference requires a finding of a mental state—specifically, a “[c]onscious disregard of the harm that one’s actions could do to the interests or rights of another.”¹³² The FHA is more similar to civil rights statutes requiring negligence than those requiring deliberate indifference. The FHA, like Title VII, is a piece of Commerce Clause legislation and not Spending Clause legislation like Title IX, under which the Supreme Court held schools liable for their intentional discriminatory conduct.¹³³ The Supreme Court has also already recognized that defendants can be liable under the FHA without the plaintiff showing intentional discriminatory conduct.¹³⁴ Also, unlike § 1983 or Bivens, the FHA does not aim to cure unconstitutional conduct, so merely negligent violations of the FHA should be cognizable.

The choice of liability rule has a real impact on litigation outcomes by defining a plaintiff’s evidentiary burden.¹³⁵ Although harassment is more invidious in the home than at work or school,¹³⁶ the FHA is closer to Title VII than it is to Title IX and should borrow its liability rule from the former. There is no reason to add to an injured tenant’s burden by adopting a deliberate indifference standard.

B. A Negligence Standard Fosters Change

Because of the added invidiousness of harassment in the home, a negligence standard is preferable to a deliberate indifference standard because such a standard is more likely to incentivize landlords to take affirmative steps to protect tenants. Under the deliberate indifference standard adopted by the Seventh Circuit based on Title IX, a party is liable under the FHA if her response to known circumstances was clearly unreasonable.¹³⁷ Defendants are not liable for circumstances they failed to investigate.¹³⁸ Thus, under the Seventh Circuit’s deliberate indifference rule, a landlord might have no obligation to affirmatively investigate when she overhears a racial slur, gets a complaint from a tenant about the harassment of another tenant, or gets a vague complaint from the harassed tenant herself.^{¹³⁹Cf. Hostile Environment Harassment, 81 Fed. Reg. 63,054, 63,066–67 (Sept. 14, 2016) (to be codified at 24 C.F.R. pt. 100).} In contrast, under a negligence standard, a court evaluates what action the landlord could have taken in addition to what action was taken in evaluating liability.¹⁴⁰ Such an evaluation encourages landlords to proactively and reasonably respond to complaints.

The HUD Rule defines the reasonableness of the landlord’s action in response to tenant-on-tenant harassment based on its likely effectiveness at correcting the wrong.¹⁴¹ This definition “encourages housing providers to create safe, welcoming, and responsive housing environments by regularly training staff, developing and publicizing anti-discrimination policies, and acting quickly to resolve complaints once sufficient information exists that would lead a reasonable person to conclude that harassment was occurring.”¹⁴² By encouraging responsiveness, a negligence standard does more to actually root out discrimination in housing than other standards of liability, furthering the purpose of the FHA.

C. Negligence Reflects the Landlord-Tenant Relationship

A landlord’s liability for tenant-on-tenant harassment originates not only from the FHA but also from the common law landlord-tenant relationship. As Cassia Pangas argues, liability for tenant-on-tenant harassment is a natural offshoot of the duties a landlord already owe her tenants.¹⁴³ In its first question during oral argument, the Second Circuit en banc panel remarked that a landlord’s duty to respond to tenant-on-tenant harassment does not seem to comport with the landlord-tenant relationship.¹⁴⁴ This assertion neglects the arc of the landlord-tenant relationship, which, at its foundation, is composed of overlapping tort, contract, and property principles.¹⁴⁵ These overlapping doctrines ensure that the landlord-tenant legal relationship changes alongside evolving socioeconomic reality.

Despite the traditional rule that a landlord would not be liable for tortious injury to her tenant, the law has increasingly recognized that a landlord may be liable to her tenant for her negligence.¹⁴⁶ This evolution began with court recognition of the implied warranty of habitability in Javins v. First National Realty Corp.¹⁴⁷ There, the D.C. Circuit imported into the landlord-tenant relationship an implied warranty of quality common in the context of contracts, products liability, and even real property sales.¹⁴⁸ The court said that landlords, too, should be held responsible for the quality of housing stock they lease and that they have an obligation to repair their apartments regardless of the terms of their leases.¹⁴⁹ The court did so in part because the old standard, which disclaimed a landlord’s responsibility for preserving the habitability of an apartment, did not align with modern urban conditions.¹⁵⁰ The legal transformation announced in Javins has evolved even further—a landlord now owes a duty of care to her tenant.¹⁵¹ Thus, a landlord’s liability for failure to remediate harassment of a third party, while an innovation in the law, is not an incongruity.¹⁵²

For example, some courts recognize that a landlord has an affirmative duty to protect against third-party criminal acts in their building, a similar duty to the one proposed by this Note.¹⁵³ In the landmark case Kline v. 1500 Massachusetts Avenue Apartment Corp., a tenant sued her landlord after suffering an assault and robbery at the hands of an unknown assailant in the hallway of her building.¹⁵⁴ The D.C. Circuit held that a landlord has “the duty of taking protective measures guarding the entire premises and the areas peculiarly under the landlord’s control against the perpetration of criminal acts.”¹⁵⁵ The court concluded that a landlord’s control over a building’s common areas, the changing urban environment, and equitable principles counseled in favor of this affirmative duty.¹⁵⁶ Rather than holding that a safe apartment building was part and parcel of a rental lease’s implied warranty of habitability, the court built upon its reasoning in Javins to extend landlord liability to an additional context.¹⁵⁷ Namely, because the tenant has submitted some relevant power or control to the landlord as a term of his lease, the landlord will be liable for failing to act in a way that decreases reasonably anticipated harm to the tenant.¹⁵⁸

Both Javins and Kline exemplify instances of negligence proliferating beyond the traditional landlord-tenant relationship and a landlord’s liability growing to accommodate third-party conduct.¹⁵⁹ The same logic undergirding these opinions should lead courts to again recognize a landlord’s liability for their negligence in the face of third-party conduct. Just as the changing housing environment led the Javins and Kline courts to update the common law landlord-tenant relationship, the increasing number of hate crimes and instances of housing discrimination counsel further adaptation of that relationship.¹⁶⁰ Like the assault in Kline, the harassment in both Francis¹⁶¹ and Wetzel¹⁶² took place in common areas, which are the exclusive domain of the landlord. But in addition to lacking control over common areas or entryways, renters agree to live next to whomever the landlord or co-op board selects. Tenants cede control in deciding who their neighbor will be from lease term to lease term.¹⁶³ Such a transfer of power counsels for imposing an affirmative duty to remediate conflict that compromises an individual’s rights under the FHA.¹⁶⁴

Contrary to the Second and Seventh Circuits’ opinions, a negligence standard of liability for tenant-on-tenant harassment is most consistent with the evolving landlord-tenant relationship at common law. It was particularly important to the Kline court that the landlord had actual or constructive notice of the threat that crimes had occurred in the common spaces prior to Kline’s attack.¹⁶⁵ The notice requirement is a crucial difference between the Seventh Circuit’s deliberate indifference standard, requiring actual notice, and the HUD negligence rule, requiring constructive knowledge.¹⁶⁶ A constructive knowledge requirement is more consistent with the duties a landlord owes her tenant at common law than an actual notice requirement.¹⁶⁷ It is this backdrop that Congress sought to incorporate into the FHA.¹⁶⁸ For this reason, this Note argues for the adoption of a negligence standard with a constructive knowledge requirement as well.

Conclusion

The FHA provided Donahue Francis the right to more protection than he received from his landlord. The purpose and expansiveness of the FHA, covering parties that do not act with discriminatory intent and covering conduct that occurs post-acquisition, accommodates holding landlords liable for negligently failing to remediate tenant-on-tenant harassment of which they knew or should have known. Courts should adopt a negligence standard of liability, as articulated by HUD, because it best comports with existing civil rights doctrine, accounts for the need for heightened protection of the home, and reflects the evolving landlord-tenant relationship.

* J.D., May 2021, University of Michigan Law School. Thank you to Professors Samuel Bagenstos and Ellen Katz for their feedback and encouragement throughout this process. I am grateful to Professor Margo Schlanger for helping me work through issues in my piece. I am so awestruck and enriched by the work of the entire Michigan Law Review Notes team on this piece, especially David Fegley and Brian Remlinger, and of editor-in-chief Ahmed Rizk. This piece would also not exist without the cheerleading and Diet Coke-stocking of Nancy and Harold Krent, Zachary Suggs, and other dear friends and family. I am consistently inspired by tenant organizers and hope this piece might advance housing justice in some useful way. All errors are my own.

† Please note that direct quotations with derogatory language in the original have been altered and identified with an explanatory parenthetical. These quotations appear in the Introduction and Part II.