How to Defend Your Community Against Retaliation Claims
This month, the Coach focuses on the rules banning retaliation—a separate, and often overlooked, source of liability under fair housing law. Under the retaliation rules, it’s unlawful to “coerce, intimidate, threaten, or interfere with” anyone exercising a fair housing right or assisting others who exercise that right.
In a nutshell, fair housing law prohibits housing discrimination—and retaliation against anyone who stands up against it. Fair housing complaints frequently include both types of claims, because of the timing. If you take action against a resident soon after he files a discrimination complaint, then it gives the impression that the two events are connected. That means you’d probably be called to defend a retaliation claim—on top of the initial discrimination claim.
One thing that doesn’t matter in retaliation claims is whether the resident had good reason to file the discrimination complaint in the first place. Under fair housing law, discrimination and retaliation are separate violations, so you could be liable for retaliation if you take adverse action against a resident solely because he filed a discrimination complaint against you, even if the discrimination claim is ultimately dismissed.
In this lesson, we’ll review the retaliation rules—what they are, when they apply, and whom they cover, to name a few. And, we’ll offer six rules, along with a checklist, to help you defend yourself against retaliation claims. Finally, you can take the COACH’s Quiz to see how much you’ve learned.
WHAT DOES THE LAW SAY?
The Fair Housing Act (FHA) prohibits housing discrimination because of race, color, national origin, religion, sex, familial status, or handicap (disability).
In addition to outlawing discriminatory rental practices, the FHA bans retaliation by making it unlawful to “coerce, intimidate, threaten, or interfere with” anyone who has exercised his rights under fair housing law, as well as anyone who has helped or encouraged someone to do so.
In general, the rules ban retaliation—or “adverse action”—such as terminating a tenancy through eviction or nonrenewal, imposing unfavorable terms and conditions, or withholding maintenance services—against a resident for exercising his fair housing rights. The rules also ban harassment, threats, and intimidation, as well as “interference,” which courts have broadly interpreted to “reach all practices which have the effect of interfering with the exercise of rights under the federal fair housing law.”
The retaliation rules protect all those “exercising their rights” under fair housing law—often described as “protected activities”—an umbrella term that includes filing a formal complaint, protesting discriminatory treatment, requesting disability-related reasonable accommodations or modifications, seeking the assistance of fair housing advocates, and cooperating with fair housing investigators.
Timing is everything in retaliation cases, because you’re liable for retaliation only if the resident proves a “causal connection” between his protected activity and your adverse action against him. If it’s a short time, then residents often get the benefit of the doubt, which puts the burden on you to break the link by proving that you had a legitimate, nondiscriminatory reason for the adverse action.
Then it’s up to the resident to try to reestablish the connection by proving that your stated reason for taking adverse action was merely a pretext—or an excuse—to cover up your retaliatory motives. To counter that argument, you’ll need good records to show that you had a valid reason for the adverse action, which had nothing to do with the resident’s protected activity, and that you’ve taken similar action in similar situations.
6 RULES FOR DEFENDING YOURSELF AGAINST RETALIATION CLAIMS
Rule #1: Don’t Retaliate Against Anyone for Filing Fair Housing Complaint
Don’t retaliate against applicants, residents, or anyone else because they’ve filed, or helped to file, a fair housing complaint against you. According to HUD regulations, it’s unlawful to retaliate against any person because that person has made a complaint, testified, assisted, or participated in any manner in a proceeding under fair housing law.
It’s natural to feel angry or hurt to learn that a resident has filed a complaint against you, but remember: The retaliation provisions apply to even unfounded allegations of discrimination—however unfair or offensive. You’ll only compound your problems if you try to get back at him by taking—or threatening to take—adverse actions like initiating eviction proceedings, not renewing his lease, increasing his rent, or delaying or denying maintenance services.
Watch what you say and how you act after learning about a resident’s fair housing complaint. You could face a retaliation claim if it looks like you’re trying to threaten, intimidate, or discourage the resident from pursuing her rights under fair housing law.
Example: In November 2014, the owners of a Washington community agreed to pay a $25,000 settlement after a court refused to dismiss a resident’s lawsuit for discrimination and retaliation under fair housing law.
When she moved in, according to the resident, she disclosed that she had post-traumatic stress disorder and depression and wanted a dog to assist with her disabilities, but the landlord allegedly required a pet deposit.
Over the next few years, she allegedly submitted doctor’s notes regarding her need for a dog as a service animal to help with her depression, but she didn’t get one until 2011. Allegedly, the landlord required her to sign a pet agreement and pay a $1,000 pet deposit. She said she started paying $50 per month toward the deposit, but later learned that she shouldn’t have to pay a deposit for an assistance animal. She submitted more notes from her doctor and filed a HUD complaint alleging disability discrimination.
After that, she claimed, “things started to get uncomfortable” with the owners. For one thing, she said they reminded her of the pet agreement, which required the dog to be leashed at all times. She also accused one of the owners of making intimidating statements by saying that she knew all the local judges and the resident would lose if she brought her complaint to court.
The Justice Department sued the owners for discrimination and retaliation, but the court refused requests by both parties for judgment without a trial. On the retaliation claim, the court ruled that the resident engaged in a protected activity by filing the HUD complaint. The owners successfully argued that enforcement of the local leash law wasn’t an adverse action. But the court ruled that the owner’s alleged statement that she knew all the judges and that the resident would lose if she brought the case to court could be evidence of an intimidation or threat because of her protected activity [U.S. v. Barber, October 2014].
Rule #2: Don’t Retaliate Against Anyone for Making Disability-Related Requests
Watch out for potential retaliation claims when dealing with requests for reasonable accommodations or modifications by or on behalf of individuals with disabilities. Let’s say your community has a no-pet policy, and you find out a resident has a dog in her unit. You remind her of the no-pet policy and tell her to remove the dog, but she asks to keep it as a reasonable accommodation because she has a disability and the dog is an assistance animal.
At that point, it’s dangerous to take further action against her for violating your rules—without looking into her accommodation request. You could face liability for disability discrimination for refusing the request if she’s legally entitled to keep the animal. Even if she’s not, she could charge you with retaliation for taking action against her for pursuing the request.
Example: In June 2014, a court refused to dismiss a fair housing case filed by the daughter of a disabled resident at a Florida condominium community. The complaint alleged that the daughter lived with the resident, an 82-year-old woman, who suffered from dementia and was bedridden, depressed, and unable to speak.
In 2012, the daughter said she formally requested a reasonable accommodation on her mother’s behalf for an exception to the community’s no-pet policy for an emotional support animal. Allegedly, she attached a note from the mother’s doctor, but the community responded by accusing her of deceit and threatening legal action unless the dog was removed.
Both parties initiated various administrative and legal proceedings regarding the dog. The daughter and the mother filed a fair housing complaint, and later sued the community for discrimination and retaliation.
The community asked the court to dismiss the case, contesting the daughter’s right to sue and validity of the complaint. The court upheld the daughter’s right to sue under fair housing law because she was a person associated with the mother, a resident with a disability.
The court refused to dismiss discrimination claim because the allegations, if true, indicated that the community refused to make a necessary accommodation for a resident they knew to be disabled. The same goes for the retaliation claim based on allegations that the community retaliated against them in response to their exercise of rights under the FHA. The complaint alleged that the community threatened legal action and initiated administrative proceedings after they requested the accommodation—and filed suit after they filed a fair housing complaint [Hopler v. Crystal Towers, Inc., June 2014].
Rule #3: Be Prepared for Retaliation Claims When Dealing with Troublesome Tenants
You don’t have to put up with lease violations or disruptive behavior merely because the resident filed a discrimination complaint against you in the past, but you should check with your attorney before taking action against him.
That’s because he’s likely to fight back by accusing you of retaliating against him for filing the discrimination complaint. This can be an effective tactic not only to buy him time in the unit, but also to shift the focus away from his misbehavior—and onto the way you treat residents.
Example: In July 2014, a court ruled against a resident who claimed that she was evicted in retaliation for filing a HUD complaint. She lived in residential housing for low-income women in New York. Over the years, she frequently fell behind on her rent, but the community agreed to deferred payment arrangements.
During extensive renovations to the community in 2008 and 2009, the resident complained that she was exposed to loud noise, noxious fumes, and extreme heat. Eventually, she and other residents were relocated to another building. In February 2010, she filed a HUD complaint, alleging discrimination for failure to maintain proper living conditions. A few months later, the community announced that it could no longer accept deferred payments because of financing restrictions. Four women, including the resident, were affected by the decision. She continued to fall behind on rent, so the community sent a “three-day notice” that eviction proceedings were imminent unless her rent was paid in full.
In July 2010, the community filed eviction cases against the resident and three others for nonpayment of rent. That same day, the community received notice of the resident’s HUD complaint. The eviction case was dropped when she paid the balance of her rent.
The resident sued the community for retaliation, but the court ruled against her, finding no evidence that retaliatory motives played any part in the community’s decision to stop accepting deferred payments or to initiate eviction proceedings. The timing alone did not suggest retaliatory intent—though the eviction proceedings were filed on the same day that the community received notice of the HUD complaint, it sent the three-day notice more than a week before receiving the HUD complaint.
Moreover, the community had legitimate, nondiscriminatory reasons for its actions. Restrictions in its financing arrangements required residents to be current with their rent, and the community proved that the policy applied across the board to all residents, regardless of whether they engaged in any protected activity [Johnson v. YWCA Residence, LLC, July 2014].
To defend yourself—and to help prevent the eviction proceedings from getting sidetracked—you’ll need documentation to prove that eviction is warranted because of the resident’s lease violations. If, for example, you’re evicting him for nonpayment of rent, you’ll need the records to prove it—and to show that you’ve consistently taken action against others who fail to pay their rent—regardless of protected class or activity.
Proceed cautiously when pursuing eviction proceedings based on other lease or rule violations. Fair housing experts warn that you should pursue eviction in such cases only if the resident is threatening the health, safety, or quiet enjoyment of other residents.
Be prepared to fight accusations of retaliation with proof that the resident committed a serious lease violation and that you have a consistent policy of evicting residents for similar violations. Keep copies of complaints, police reports, and other evidence of the frequency and severity of the problem behavior. Document your investigation, including witness statements, photos, and bills related to property damage or personal injury, along with previous efforts to resolve the problem, including written warnings to the resident to stop the offending behavior.
Rule #4: Don’t Crack Down on Rule Violations—or Change the Rules—for Discriminatory Reasons
It’s okay to make and enforce reasonable rules governing community operations and resident behavior, as long as you have legitimate, nondiscriminatory reasons for doing so. You could be accused of retaliation if it looks like you’re targeting residents for selective enforcement of the rules for discriminatory reasons.
Example: In October 2014, a court granted a temporary order to prevent a California community from evicting two families, pending further review of their fair housing claims. The families accused the community and its onsite manager of discrimination and retaliation by terminating their tenancies because they permitted their children to play outside. They claimed that the manager restricted children’s access to outdoor areas by more strictly enforcing community rules against families with children when children were playing outside than adults with no children. The complaint alleged that the manager issued numerous oral and written warnings to families with children when the children used outdoor areas, exaggerating claims that the children were noisy or disruptive.
According to the families, the manager sent them warnings and threatened to terminate their rental agreements. After telling him that they would continue to let their children pay outside, the manager allegedly posted termination notices on their doors.
The families sued, asking for a court order to stop their evictions pending resolution of their discrimination and retaliation claims. To support their case, they submitted statements from other residents, who said that they kept their children inside after the manager sent them similar warnings.
The court granted the request, pending a ruling on allegations that the families faced termination of their tenancies because of their familial status—that is, because they said they would continue to let their children to use the community’s common areas. The families presented evidence to suggest a discriminatory reason for the eviction notices.
The community argued that it had a legitimate, nondiscriminatory reason for their actions—namely, the children’s safety and neighbors’ comfort and convenience. But the families argued that was merely an excuse by raising questions about an alleged pattern of discrimination against families with young children at the community. The families could stay in their units, as long as they paid rent, pending further proceedings on their fair housing claims [Bischoff v. Brittain, October 2014].
Communities have the right to change the rules from time to time for legitimate, nondiscriminatory reasons. Just be sure to fully document when and why you make rule changes to avoid accusations that they’re intended to interfere with a resident’s fair housing rights.
Example: In November 2014, a court dismissed fair housing claims filed by the resident of a condominium community in the Virgin Islands in a dispute involving an assistance animal.
Despite a rule banning pets, the resident had a dog. The resident allegedly submitted documentation that she had a disability and the dog was an emotional support animal to alleviate her symptoms, but there was a dispute over whether she made a formal request for a reasonable accommodation.
Meanwhile, there was ongoing debate—at board meetings and on a blog hosted by another resident—about pet ownership and the no-dog policy. At some point, the resident claimed that the president warned her that she was violating the no-dog policy and asked her to submit a request for a reasonable accommodation. Some months later, the association added the no-dogs policy to the bylaws.
The resident sued the community and various individuals for discrimination and retaliation under fair housing law. The court rejected the discrimination claim, ruling that the community didn’t deny her reasonable accommodation request.
The court also ruled that the community didn’t retaliate against her because of her accommodation request. She argued that the board changed its bylaws to ban dogs in retaliation for her accommodation request, but the community proved that its rules banned dogs as early as 2007—years before the resident was prescribed an emotional support animal.
The court also rejected her retaliation claim against the resident who hosted the blog. She claimed that his blog posts amounted to harassment that interfered with her enjoyment of the property, but the court disagreed, ruling that even a broad reading of the law didn’t make unfortunate skirmishes between neighbors unlawful. His blog posts showed he wasn’t friendly to the resident, but it boiled down to a dispute between neighbors, not unlawful discrimination [Walters v. Cowpet Bay West Condominium Association, November 2014].
Rule #5: Don’t Retaliate Against Employees or Others Who Raise Discrimination Concerns
The FHA’s ban on retaliation applies not only to residents who complain about discrimination, but also to employees and neighbors who stick up for them or assist them in pursuing their fair housing rights.
According to HUD regulations, the retaliation provisions prohibit communities from firing or taking any other adverse employment action against employees or agents for helping members of protected groups to obtain housing. It’s also unlawful to intimidate or threaten any person because that person is engaging in activities designed to make other persons aware of, or encouraging such other persons to exercise, rights granted or protected by fair housing law, according to the regulations.
The retaliation provisions protect employees from adverse employment actions—such as being fired, demoted, or harassed—for opposing discriminatory practices or advising aggrieved residents to contact HUD or other fair housing agencies. That means that, in addition to any liability to the victims of alleged discrimination, a community could be required to pay damages to any employee who was subjected to disciplinary action because she supported the alleged victims in pursuing their rights.
Rule #6: Don’t Ignore Residents Who Complain About Harassment
Pay attention if a resident complains of harassment or threatening behavior by employees, contractors, and even other residents—particularly if there’s any suggestion of discriminatory motives for the objectionable conduct. The retaliation provisions prohibit anyone from threatening, intimidating, or interfering with residents because of their race, color, religion, sex, disability, familial status, or national origin of such persons—or that of their friends and associates.
Example: In 2011, a court found the former managers of a 48-unit South Dakota community liable for creating a racially hostile housing environment for an African-American family and retaliating against two white families who befriended them. The complaint also accused them of engaging in threatening, harassing, and intimidating conduct after the families filed a discrimination complaint with the local housing authority. The managers didn’t respond to the complaint, so the court ruled against them and ordered them to pay $30,000 in damages; the former owner previously paid a $30,000 settlement [U.S. v. TK Properties, LLC, March 2011].
The retaliation provisions also apply to other residents who threaten or harass a resident simply because he—or anyone associated with him—is a member of a protected class. In general, “interference” means more than a quarrel between neighbors or an isolated act of discrimination, but a pattern of harassment, motivated by discriminatory intent.
Example: In October 2014, a court refused to dismiss a lawsuit involving next-door neighbors in Illinois. The complaint was filed by a couple, who were born in Vietnam and were Asian, who had been at odds with their neighbors, who were Caucasian, since 2012. The couple sued the neighbors, alleging discrimination and retaliation under fair housing law. Among other things, the couple accused one of the neighbors of making overtly racist comments, such as yelling “Vietnam killed Americans” and “Go back where you came from.”
The neighbors asked the court to dismiss the case, arguing that fair housing law didn’t apply to quarrels between neighbors or isolated acts of discrimination. The court disagreed, arguing that the allegations of the complaint alleged more than a simple quarrel or isolated act, but rather a persistent course of racially motivated harassment for nearly two years [Nguyen v. Patek, October 2014].
It’s important for the owners and managers of rental housing to investigate complaints that residents are being threatened or harassed by neighbors. Depending on the circumstances, communities could face a fair housing complaint if they knew or should have known that a resident is being subjected to harassment by a neighbor, but failed to do anything to stop it.
Example: In 2012, the Justice Department announced an $18,500 settlement in a fair housing case against a West Virginia community for failure to act on behalf of African-American residents who were being racially harassed by a white neighbor. The complaint alleged that the public housing authority discriminated against an African-American family when it allowed a white tenant to harass the family without prompt and consistent enforcement of its rules and lease terms [U.S. v. Wheeling Housing Authority, April 2012].
- Fair Housing Act: 42 USC §3601 et seq.
Checklist: Flag Potential Retaliation Claims
A. Did the individual exercise rights under fair housing law, such as:
- File a complaint with HUD?
- Ask for a reasonable accommodation or modification?
- Complain of discrimination against other residents?
- Cooperate in a fair housing investigation?
B. Did you take adverse action against the individual, such as:
- Send warnings or impose fines?
- Threaten or initiate eviction?
- Decide not to renew the lease, alter lease terms, or withhold services?
- Threaten, intimidate, or harass the individual—or fail to stop others from doing so?
C. Was there a connection between the adverse action and the resident’s protected activity?
- Did resident’s protected activity take place before the adverse action?
- If before, did you know about it?
- If before, how long ago? If the adverse action occurred soon after the resident exercised his rights, then courts generally give the resident the benefit of the doubt.
Do you have proof of a legitimate, nondiscriminatory reason for taking action against the resident?
- Did the resident breach the lease or violate community rules?
- Do you consistently take action for similar violations?
Is there evidence to show your stated reason for taking action was a pretext—that is, an excuse to cover up retaliatory intent?
- Did you say or do anything to suggest that the real reason for taking action against the individual was to “coerce, intimidate, threaten, or interfere with” him for exercising a fair housing right or assisting others to do so?
Take The Quiz Now
|January 2015 Coach's Quiz|