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Sexual Harassment: A Fair Housing Violation

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Sexual harassment may be an actionable offense under the Fair Housing Act. Judges in the Eleventh Circuit, which consists of districts in Alabama, Florida, and Georgia, suggested that a Florida trial court judge wrongly determined that sexual harassment is not considered sex discrimination under the Fair Housing Act (“FHA”). This indicates that the judges might review Rita Fox v. Lucille Gaines, et al, wherein a woman sued her former landlords. Fox alleges that she was wrongly evicted after having ended a four-year affair with one of her landlords, Dana Gaines. The affair began when Gaines offered her an apartment for lease in exchange for a kiss. [1] 

The trial judge in Fox acknowledged that the finding he made in his dismissal order–that sexual harassment is not actionable as sex-based discrimination under the FHA–went against other federal courts’ rulings. Eleventh Circuit Judge Kevin C. Newsom believes that therefore the judgment should be vacated and the case remanded for further consideration. According to Judge Newsom, there appears to be “raging agreement that sexual harassment is actionable under the FHA if the but-for cause of the harassment is sex.” According to Fox, “but for her sex, Dana Gaines would never have initiated a sexual relationship with her” and that she would not have been forced out of her apartment by him and his wife once the relationship was over. Dana Gaines had even paid part of Fox’s rent on a regular basis during the course of their sexual relationship. The landlords, on the other hand, argue that the eviction was solely because of the “relationship breakdown” and not because Fox is a woman. [2] 

The United States federal government even joined in as an amicus curiae and supported Fox’s argument that sexual harassment is in fact sex discrimination under the FHA. Jason Lee, its counsel, stated that the ruling goes against the “unanimous conclusion of other federal appellate courts find[ing]s that sexual harassment violates the statute” and that this ruling is troubling because it “would bar relief not just in close cases but in egregious cases of sexual harassment” as well. Other amicus briefs supporting Fox were also filed by the American Civil Liberties Union, National Fair Housing Alliance, National Women’s Law Center, and Florida Housing Umbrella Group. [3] The U.S. Department of Housing and Urban Development (“HUD”) also specifically mentions that sexual harassment is a violation of the Fair Housing Act on its website

New York landlords are also most likely prohibited from sexual harassment in accordance with HUD’s website and New York regulations. New Yorkers are protected by various laws, such as the federal Fair Housing Act, the New York State Human Rights law, and local laws, including the New York City Human Rights law. Housing providers, such as owners, real estate agents, building superintendents, co-op and condominium boards, managing agents, and lenders are prohibited from discriminating on the basis of race, familial status, religion, disability, color, national origin, or sex. New Yorker residents are also protected from discrimination on the basis of creed, marital status, military status, age, and sexual orientation under the New York State Human Rights Law. Further protections include discrimination based on gender, citizenship status, partnership status, gender identity, lawful source of income, and lawful occupation. [4]

If you believe you have been the victim of discrimination in New York City, you can find instructions on how to file your complaint on the NYC Fair Housing website. You can also schedule an appointment with the NYC Commission on Human Rights by calling the Commission’s Infoline (718-722-3131) or dialing 311 and asking for the NYC Commission on Human Rights. The Commission’s services are free of charge. You can also file a claim of retaliation if you believe harmful actions were taken against you because you filed a complaint or served as a witness in another’s complaint. 

[1]  Rosie Manins, “11th Circ. Suggests Sexual Harassment Actionable Under FHA”, Law360, 13 May 2021, 11th Circ. Suggests Sexual Harassment Actionable Under FHA – Law360, acc. 17 May 2021. 

[2] Ibid.

[3] Ibid.

“[4] Fair Housing”, NY Attorney General, https://ag.ny.gov/civil-rights/fair-housing, acc. 17 May 2021.

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