10 Pitfalls to Avoid When Responding to a Sexual Harassment Complaint
We all know that it’s illegal for landlords to demand sexual favors or otherwise sexually harass their tenants. But it still happens all the time. And given the inherent imbalance in economic power between landlords and tenants, it’s a problem that’s unlikely to go away any time soon, especially not in low-income communities and especially during times of pandemic where so many tenants lack the wherewithal to pay their rent each month.
Yet, the picture isn’t totally grim. Although there are still far too many sexual predators in the world, the vast majority of America’s landlords are decent, law-abiding, and determined to provide a harassment-free housing environment to all tenants. In addition, growing awareness of sexual harassment in housing, coupled with increasing liability risks, have also provided landlords a new impetus to address the problem and ensure it doesn’t happen at their own communities.
However, the focus is also shifting. For a landlord determined to protect tenants from sexual and other forms of illegal harassment, the challenge isn’t so much about their own personal behavior as that of the leasing agents, managers, maintenance personnel, and other staff that serve as its legal agents. And while preventing objectionable behavior is the paramount objective, landlords must also be prepared to respond effectively if and when a tenant accuses a staff member of harassment. This month’s lesson focuses on perhaps the most crucial element of harassment response: how to investigate a harassment allegation swiftly, thoroughly, and in a way that’s fair to both the accuser and the accused.
First, we’ll explain why investigating harassment complaints is so important to managing your liability risks. Then we’ll point out 10 common investigation pitfalls and how to avoid them, before ending the lesson with a Coach’s Quiz enabling you to evaluate how well you learned the material. We’ll also give you a Model Sexual Harassment Investigation Checklist that you can use to implement the principles of the lesson and ensure that your own internal investigations are effective and legally sound.
Editor’s Note: Although this lesson talks about “sexual harassment,” the analysis applies equally to harassment based on race, color, religion, national origin, familial status, handicap (disability), and other protected grounds under state fair housing laws.
WHAT DOES THE LAW SAY?
Arguably, the most common and devastating investigation pitfall landlords commit is not investigating a complaint of harassment against a tenant, whether brought by the tenants themselves or a third-party witness. In addition to exacerbating the internal harassment problem, failing to investigate makes you a sitting duck for HUD investigators and tenants’ fair housing attorneys. Here’s why.
Sexual Harassment Is a Form of Housing Discrimination
First, the federal Fair Housing Act (FHA) bans housing discrimination on the basis of race, color, religion, sex, national origin, familial status, and handicap (disability). While the FHA doesn’t mention “harassment,” it’s well understood that the practice violates general parts of the law, including:
- Section 3604(b), which makes it illegal to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, on in the provision of services or facilities in connection therewith”; and
- Section 3617, which makes it illegal to “coerce, intimidate, threaten, or interfere” with residents in their exercise or enjoyment of their fair housing rights.
As in employment, there are two basic forms of sexual harassment in the housing context:
Quid Pro Quo Harassment
HUD regulations (“Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act”) define “quid pro quo” harassment as “an unwelcome request or demand to engage in conduct [as a condition related to]” renting the premises, the rental terms, or the provision of services or facilities in connection with the rental. Translation: Quid pro quo harassment occurs when a landlord or its agents abuse their power over the tenant to extract sexual favors, such as demanding sex in exchange for a rent break, repair, or avoiding eviction.
Hostile Environment Harassment
Hostile environment harassment, according to the regulations, “refers to unwelcome conduct that is sufficiently severe or pervasive as to interfere with: The availability, sale, rental, or use or enjoyment of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision or enjoyment of services or facilities in connection therewith; or the availability, terms, or conditions of a residential real estate-related transaction.” Common forms of hostile environment sexual harassment include:
- Offensive remarks about looks, clothing, or body parts;
- Unwelcome touching, sexual advances, questions, or requests for dates;
- Sexual comments or innuendo;
- Unwelcome sexual or lewd jokes, gestures, sounds, or displays;
- Sending, forwarding, or asking for sexually suggestive letters, notes, emails, or images; and
- Displaying pornography or sexually explicit content.
The Shellhammer Case
Although less common than workplace claims under Title VII of the Civil Rights Act covering employment, there are literally thousands of FHA (a.k.a., Title VIII) sexual harassment cases filed by tenants each year. But it wasn’t always that way. In fact, it wasn’t until 1985, 11 years after sex was added to the FHA as a protected class, that a federal court first recognized a landlord’s potential liability for sexual harassment. It began when a young woman named Tammy Shellhammer walked into a Toledo, Ohio, Fair Housing Office to complain about being harassed by her landlord. First, he asked her to pose nude for him; a month after that, he offered her money to have sex with him. Later, when Ms. Shellhammer and her husband disputed the rent, the landlord sent them packing.
The Shellhammers sued for sexual harassment. The Sixth Circuit Court of Appeals sent shock waves that reverberate to this day by upholding a $7,400 damage award against the landlord for quid pro quo harassment (although the court nixed the hostile environment claim) [Shellhammer v. Lewallen, 770 F.2d 167].
Landlord Liability for Sexual Harassment by Staff
Most FHA sexual harassment lawsuits involve conduct that the landlord personally commits, as in the Shellhammer case. But landlords who behave decently can still be liable for sexual harassment committed by their agents. There are two theories of liability:
Direct Liability. A landlord can be directly liable for staff members’ harassment of tenants if it knew or “should have known” of the conduct but failed to stop it. This is the housing equivalent to the Title VII rule that makes an employer potentially liable for failing to step in to protect an employee from sexual harassment committed by other employees or people at the workplace. Specifically, the HUD regulations say that a person is directly liable for “failing to take prompt action to correct and end a discriminatory housing practice by that person’s employee or agent, where the person knew or should have known of the discriminatory conduct” [Regulations, Section 100.7(a)(1)(ii)].
Vicarious Liability. Under traditional tort law principles persons are liable for not only their own conduct but also the actions and omissions committed by their agents. The name for this concept is “vicarious liability,” and the courts and HUD regulations clearly state it applies to fair housing. In other words, leasing agents, property managers, maintenance personnel, and other personnel represent the landlord they work for. As agents, they also carry the landlord’s authority vis-à-vis tenants. Landlords are vicariously liable if their agents abuse that authority and sexually harass tenants.
Example: The property manager of a Kansas community engaged in a pattern of sexually harassing tenants over a five-year period. In January 2020, a federal district court found the property owner vicariously liable for the manager’s harassment and awarded $160,000 in damages to 11 of the victims [United States v. Cao, Case 6:17-cv-01310-EFM (D. Kan.)].
Bottom Line: Landlords Must Respond to Complaints
If somebody comes to you to report that members of your staff are sexually harassing a tenant, you have a legal duty to take action to put a stop to it. Whether your liability is direct or vicarious—or both—you’ll be on the hook if the plaintiff—that is, the person bringing the legal complaint against you—can prove three things:
- The third-party agent engaged in quid pro quo harassment or created a hostile environment for the tenant;
- You knew or should have known about the conduct; and
- You failed to take prompt action to correct and end the harassment while having the power to do so.
Landlord liability for third-party harassment often comes down to prong 2—that is, what the landlord knew or should have known about what was going on. However, receiving a harassment complaint puts you on notice, which means the plaintiff wins on prong 2.
You also lose half of prong 3 relating to power to act when the third party is a person who works for you. Result: Your liability boils down to prong 1 and the rest of prong 3:
- Whether the third party actually engaged in harassment; and
- If so, whether you took prompt action to stop it.
The big question on which your potential liability rides: What “prompt action” must you take in response to a complaint about sexual harassment committed by one of your agents against a tenant? Answer: You must promptly investigate the complaint. If you determine that the allegations are true and harassment did take place, you must then initiate corrective action, typically by disciplining, reassigning, or even terminating the agent who engaged in it.
10 SEXUAL HARASSMENT INVESTIGATION
PITFALLS TO AVOID
Investigating sexual harassment complaints can put landlords between a rock and a hard place. Back in the bad old days when landlords didn’t take sexual harassment seriously, harassment complaints were typically ignored or swept under the rug. To the extent they were investigated at all, the tendency was to downplay the complaint as exaggeration, fabrication, or oversensitivity on the part of the victim. As we’ve seen, such a response exposes you to liability for failing to take prompt action to correct harassment that you knew about.
The good news is that nowadays landlords “get it” and understand that they must take sexual harassment complaints seriously. The problem is that some landlords are still rushing to judgment, only in the opposite direction. In a #MeToo society, there may be pressure to assume that sexual harassment accusations are true and swiftly discipline the accused to “put out the fire.” But discipline without proper investigation may violate a landlord’s duties to the employee under employment discrimination and labor standards laws and collective bargaining agreements.
Bottom Line: Implement clear written policies and procedures to ensure that investigations of sexual harassment complaints are balanced and fair to both the accuser and the accused. While actual procedures vary by organization, there are 10 common pitfalls to be mindful of when creating your own investigation protocols.
Pitfall #1: Waiting Too Long to Start
Perhaps the most common investigation mistake companies make is taking too long to get things started. Over time, memories fade, witnesses leave, and physical evidence disappears. In addition to compromising the evidence, delaying an investigation undermines its effectiveness and puts additional strain on the accuser, accused, and other parties involved. It also allows any misconduct that’s occurring to continue unchecked.
“In the workplace setting at least, failure to investigate promptly has become a favorite defense for employees and unions challenging disciplinary action for sexual harassment,” notes a New York City employment attorney. Conversely, acting swiftly may be a decisive factor in your favor, especially in a close case.
Example: In dismissing the lawsuit of an employee who was terminated for sexual harassment, the Fifth Circuit praised the employer for its “prompt remedial action,” saying it “took allegations seriously, conducted prompt and thorough investigations, and immediately implemented remedial and disciplinary measures based on the results of such investigation” [Williams-Boldware v. Denton County, Tex., 741 F.3d 635, 640 (5th Cir. 2014)].
Solution: Put the investigation process into motion immediately after receiving the complaint. But also keep in mind that while speed is important, fairness is the paramount concern and that rushing an investigation is just as bad as stalling it. Specifically, be sure to provide enough time for the preliminary work required before an internal sexual harassment investigation can begin, including:
- Reviewing the accuser/tenant’s rental records and files;
- Reviewing the accused’s personnel file, job description and performance reviews; and
- Identifying the issues raised in the complaint and whether they’d constitute sexual harassment if the accusations are true.
Pitfall #2: Using Investigator Who Isn’t Objective
It might be tempting to designate the property manager or other on-site person to investigate any sexual harassment complaints submitted by tenants at the site. But previous involvement and familiarity with the site might actually make them ill-suited to carry out investigations to the extent they may be directly or indirectly involved in the matters being investigated. And this lack of objectivity will cast doubt on the reliability and trustworthiness of the investigation results.
Solution: The person carrying out the investigation must be completely impartial and not related to or in any other special relationship with either the accuser or accused. That’s why managers shouldn’t investigate subordinates and vice versa. Individuals also shouldn’t investigate if they have a history of conﬂict with one of the parties. Nor should the investigators have a personal or professional stake in the outcome, such as managers determined to use the investigation to cover up wrongdoing committed by their personnel.
Unfortunately, it’s not always easy to ﬁnd objective and impartial investigators, especially at small communities where everyone knows one another and may be affected by the outcome of the investigation. And even if there are objective people available, they may not be qualified to investigate a sexual harassment complaint. As a result, you should consider hiring an external qualified investigator to investigate tenant sexual harassment complaints at your community.
It’s critically important that the investigator not only is fair, impartial, and credible but perceived as such by both sides. “Ask how the investigator would appear as a witness before a jury when representing the landlord,” suggests the New York attorney.
Pitfall #3: Not Getting Both Sides of the Story
Pitfall: One common mistake is talking only to the alleged victim. You can’t have a fair investigation unless you also give the accused an opportunity to give his or her side of the story.
Solution: You must also give the accused the facts they need to know about the allegations, including dates and speciﬁc details, to respond effectively. And make it clear to all witnesses, both immediately before and after the interview, that they won’t suffer retaliation of any kind for participating in the investigation.
Pitfall #4: Not Letting the Accused Respond Directly to the Accusation
A common tactic of interrogation is to not let the accused know what they’re accused of in the hopes of getting them to blurt out their offenses. But this practice is highly inadvisable when investigating sexual harassment. Lack of transparency can taint the investigation, especially when interviewing the accused.
Solution: Tell the accused exactly what he’s accused of and give him a fair chance to respond to the allegations. However, there’s one important detail that you may legitimately decide not to disclose: the accuser’s identity, for example, where there’s a pre-existing personal relationship between the parties.
Pitfall #5: Not Interviewing Third Parties
Investigators may get so caught up in the interplay between the accuser and accused that they overlook the other people who may have relevant information about the situation. This tunnel vision focus is especially likely to occur in he said/she said situations.
Solution: Investigators should ask the accuser and accused for the names and contact information of any witnesses who are familiar with the situation. That same question should then be posed to any third-party witnesses subsequently interviewed. If witnesses refuse to cooperate, remind them of their legal duty to cooperate in the investigation. If they still refuse, create a written record to document the refusal.
Pitfall #6: Asking Leading Questions
It’s not just how many interviews you do but how you do them. One common interview mistake to avoid is to lead witnesses—that is, phrase questions to set up the witness to respond in a certain way.
Example: Jane, a tenant, accuses the building manager, Mike, of making inappropriate remarks about her tight clothes not only to her but also to Megan, a neighboring tenant on the same floor. The investigator decides to interview Megan to see if she can conﬁrm the story.
- Bad interview question: “Did Mike ever say anything to you about Jane’s tight clothes?”
- Good interview question: “Did you ever hear Mike make any inappropriate comments about you or any of your neighbors?”
Solution: Warn investigators about asking leading questions and instruct them to phrase questions that are open-ended, focused strictly on the who/what/when/where/how/why and free of qualifiers, adjectives, or other items that may lead a witness. Of course, you won’t have to provide this tutorial if you hire an expert with professional qualifications to investigate sexual harassment complaints.
Pitfall #7: Interviewing Witnesses in Each Other’s Presence
Interviewing the accuser in front of the accused can intimidate the accuser, and vice-versa. Even third-party witnesses can be inﬂuenced by the presence or statements of others. Result: The testimony becomes less credible as evidence.
Solution: Ensure that witnesses are interviewed separately and not in the presence of other witnesses. Also be on the lookout for and take steps to minimize the risk of witness collaboration and intimidation.
Pitfall #8: Not Following Your Own Investigation Procedures
A sureﬁre way to taint an investigation is to deviate from your organization’s investigation procedures and protocols.
Solution: Although you can be ﬂexible if the occasion demands it, make sure you have a solid justiﬁcation any time you depart from normal policy and procedure.
Pitfall #9: Not Following Up on Investigation Report
From a liability standpoint, the absolute worst thing a landlord can do when an internal investigation finds that one or more of your agents did commit sexual harassment against a tenant is to do nothing at all. The investigation report becomes a smoking gun definitively proving that you were aware of the harassment and setting you up for FHA liability for not taking “prompt action” to stop it.
Solution: At a minimum, notify the accuser and accused of the investigator’s findings regardless of the outcome. If the report confirms the truth of the allegations, you must take action against any employees involved. More often than not, action will include discipline and perhaps termination based on the terms of your progressive discipline policies and procedures and the unique circumstances involved—for example, the gravity of the offense, the position and disciplinary history of the employee who committed it, remorse exhibited, etc.
You must also be prepared to hold agents who aren’t employees accountable for the sexual harassment they commit—for example, by terminating agreements or exerting financial pressures on landscaping, cleaning, servicing, or other contractors whose employees harass your tenants.
Pitfall #10: Not Documenting Investigation Results
It’s critically important to thoroughly document each step of your investigation so you can retrace your steps and prove that the investigation was thorough and fair. As lawyers like to say, if it isn’t documented, it never happened.
Solution: Keep records of:
- The sexual harassment complaint submitted by the tenant or third-party witness on the tenant’s behalf;
- The investigation plan;
- Witness statements and interview notes;
- The investigation report and recommendations; and
- The actions you took in response to the report or the reasons you determined not to take any corrective actions.
Following the steps laid out in our Model Sexual Harassment Investigation Checklist can go a long way in helping you spot and steer clear of the above pitfalls and ensure that your internal investigations are fair, thorough, and legally sound.
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|June 2021 Coach's Quiz|