Landlords May Be Liable For Tenant-on-Tenant Harassment

Published date22 March 2022
Subject MatterLitigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Landlord & Tenant - Leases
Law FirmRiley Bennett Egloff
AuthorMs Katie R. Osborne

Some attorneys may be familiar with and can competently advise their clients regarding the federal and state causes of action for hostile work environment. However, there is a similar, lesser-known cause of action for discrimination in the housing context known as "hostile housing environment" that warrants attention in light of a fairly recent opinion by the Seventh Circuit clarifying its scope.

The Seventh Circuit first recognized a cause of action for hostile housing environment sex discrimination in DiCenso v. Cisneros, 95 F.3d 1004 (7th Cir. 1996). In DiCenso, the Court applied the Title VII standard for hostile work environment to housing discrimination claims, holding that a landlord can be liable to its tenant for sex discrimination, including sexual harassment, "when the offensive behavior unreasonably interferes with [the tenant's] use and enjoyment of the premises." Id. at 1008. As in the work context, sex-based harassment in the housing context places an emphasis on the frequency of the offensive behavior, such that isolated incidents may not have sufficient severity to create liability. Id.

DiCenso remained the seminal case for hostile housing environment claims in this circuit for 22 years, until August 27, 2018, when the Seventh Circuit decided Wetzel v. Glen St. Andrew Living Community, LLC on August 27, 2018. 901 F. 3d 856 (7th Cir. 2018). Wetzel involved the claim of Marsha Wetzel, an openly gay female who lived at Glen St. Andrew Living Community ("St. Andrew"), a residential community for older adults. Shortly after moving to St. Andrew, Wetzel had allegedly been openly and repeatedly harassed by other residents because of her sexual orientation. Wetzel routinely reported the verbal and physical abuse she sustained from other residents to the staff at St. Andrews, but the harassment continued and escalated in severity. Id. at 859-60.

Wetzel ultimately filed suit against the entities that owned and operated St. Andrew in the Northern District of Illinois, alleging, in part, that the defendants violated the Fair Housing Act by failing to ensure a non-discriminatory living environment and retaliating against her for reporting the sex-based harassment. The defendants moved for dismissal on the grounds that the Fair Housing Act did not create liability against a landlord for failing to stop tenant-on-tenant harassment unless the landlord's failure to act arose out of the discrimination. The district court granted the defendants' motion to...

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