DIVERSITY CORNER
New Eleventh Circuit Decision Helps Protect Victims of Housing Sexual Harassment
BRYAN ANDERSON
Is sexual harassment – whether through creation of a hostile housing environment or demands for sex as part of a housing transaction like renting -- actionable under the federal Fair Housing Act ? The U . S . Court of Appeals for the Eleventh Circuit recently held that it is “ provided that the plaintiff demonstrates that she would not have been harassed but for her sex .”
The Court ’ s decision in Fox v . Gaines ( 11th Cir . 2021 ) No . 20-12620 brought the law in the Eleventh Circuit into alignment with each of the other federal circuit courts of appeals that have considered the question .
The Fox case arose from a tenant ’ s complaint that she had been forced out of her rented apartment for ending a sexual relationship with the property manager for the building where she lived . After administrative claims did not provide relief , the plaintiff filed a complaint with the U . S . District Court for the Southern District of Florida alleging violations of Title VIII of the Civil Rights Act of 1968 ( the “ Fair Housing Act ” or “ FHA ”) as well as related state laws .
The Fair Housing Act prohibits discrimination in the sale , rental , and financing of dwellings and in other housing-related transactions because of race , color , religion , sex , familial status , national origin and disability .
The words “ sexual harassment ” do not appear in the Fair Housing Act . However , several federal circuit courts of appeal and federal district courts around the country previously ruled that sexual harassment constituted discrimination in violation of the FHA – including both quid pro quo demands for sexual acts as part of housing transactions and creation of a hostile housing environment . These decisions relied upon legal analyses that courts followed in Title VII cases to find that sexual harassment is prohibited in employment .
During 2020 the U . S . District Court dismissed the Fox v . Gaines plaintiff ’ s claims of sexual harassment brought under Title VIII stating that “ without binding case law , the Court is not at liberty to rewrite the FHA to fit a case , no matter how sympathetic a litigant may be .” Fox v .
Gaines , Order on Motion to Dismiss dated June 19 , 2020 at p . 7 .
The Plaintiff appealed the District Court ’ s dismissal of her claims . After briefing and oral argument , the Eleventh Circuit said in its July 16 , 2021 , decision that whether sexual harassment qualifies as sex discrimination under the FHA was a question of first impression in the Circuit . The Court further said “[ t ] oday we join our sister circuits in concluding that it does .” Slip Op . at 6 . The Court ’ s decision will be published , making clear that precedent is being set .
Like prior federal circuit courts of appeal that considered the question , the Eleventh Circuit ’ s reasoning looks to cases interpreting Title VII as prohibiting sexual harassment in employment . Slip Op . at 8-9 . Vacating and remanding the district court ’ s dismissal order , the Eleventh Circuit held that “ sexual harassment can be a form of sex discrimination prohibited by the FHA , provided the plaintiff can demonstrate that she would not have been harassed but for her sex .” Id . at 2 .
How prevalent is sexual harassment in housing ? A 2018 Missouri Law Review article states “ there have been no reliable empirical studies about the nature and prevalence of sexual harassment in housing .” Absent empirical studies , which are clearly needed , there is significant anecdotal evidence that sexual harassment in housing is an increasing problem particularly during the COVID Pandemic .
During 2020 the National Fair Housing Alliance received its highest number of complaints ever for sexual harassment , which increase it says may be due to “ sexual harassment complaints from persons who became under- or unemployed due to COVID and whose
landlords were seeking sexual favors in exchange for rent .” 2021 NFHA Annual Report at 12 .
Other recent press reports characterize sexual harassment in housing systems as “ rampant ” while others say there has been an “ uptick ” of claims as tenants are affected by pandemic housing and job problems .
Sexual harassment in employment has been highlighted in recent years by high-profile cases that gave impetus to the “ Me-too ” movement , resulting in an increased willingness to call out harassing behavior related to peoples ’ jobs . It seems time for a similar “ Me-too ” movement helping protect victims of sexual harassment in housing . The Fox v . Gaines decision is a strong impetus for protecting these victims .
Fox v . Gaines was successfully briefed and argued for the appellant by Eneami Bestman of the Legal Aid Society of Palm Beach County . Pro bono help was provided by appellate attorney and Legal Aid Society board member Rebecca Mercier Vargas and Committee for Diversity and Inclusion member Bryan Anderson .