San Francisco Apartment Association

Feature

Creating a Sexual Harassment Policy

by Nadeen Green

Fair housing and sexual harassment? Do they really have anything to do with one another? Absolutely they do, and the courts continue to expand on the connection.
Housing law recognizes two types of sexual harassment claims:

  • a “conditioned tenancy” or “quid pro quo” claim, which in nonlegalese means making a sexual demand on a resident in order for that resident to get maintenance on the apartment, a rent concession or avoid an eviction; and
  • a “hostile environment” claim, which can give rise to claims concerning the psychological wellbeing of a resident who can demonstrate such a situation.

Furthermore, fair housing law has been broadly applied to define sexual harassment as a violation of the Fair Housing Act prohibition against sex discrimination.

And, of course, the FHA provides for significant financial punishment and penalties for violations, making sexual harassment within the context of the landlord-tenant relationship potentially quite costly to the landlord.

If the fear of losing vast sums of money doesn’t motivate you to create a fair sexual harassment policy, then how about jail time? Some creative lawyers and advocates are now going beyond the fair housing arena. One idea is to charge landlords under laws related to prostitution, with the argument that requiring sex for rent or other benefits is, in effect, coercion into prostitution. And some fair housing lawyers have charged landlords with criminal battery, as well as violations of sexual predator laws. In fact, one landlord was successfully convicted of the latter.

Now, one might think that perhaps this is an issue with “smaller” landlords, those whom we refer to as “mom-and-pop” owners and landlords, and sometimes that has been the case. For example, in one true-life case, a wife and husband rented a house under the Section 8 program. The wife was allegedly told that if she wanted to keep the rental, she would have to have sex with her landlord once a month; and the landlord supposedly threatened to shoot the husband when he complained. In another case, a landlord went to a resident’s apartment to clean spots on the rug. As he left, he placed his hand under her shirt, fondled her breast and attempted to kiss her. The resident rejected these “advances” and was subsequently evicted; these liberties cost the landlord more than $36,000. A similar settlement was paid by another landlord who kept harassing his tenant for a date. He went as far as to enter her bedroom while she was asleep and threaten to change her locks if she did not do what he wanted. After she filed complaints, he removed her front door, turned off her heat and hot water, and threatened to blow up the building with her in it.

But supposedly more sophisticated landlords of larger buildings have also engaged in wanton and improper behavior, including one case in California where 15 single women (and 25 children) were verbally and physically harassed by a resident manager who asked for sexual favors, grabbed tenants’ breasts, entered their apartments in the middle of the night and tampered with their mail. The well-organized women went to the property owners with documentation in hand and were ignored. They were not, however, ignored by the legal system, as their settlement was for $1.65 million in a case where the defendants included the resident manager, the property owners, the management company, the president of the company and a general partner.

No one in your organization should abuse the power that they have over
residents. You should have a sexual harassment policy in place and train all your staff on a regular basis. You should respond to even the merest hint of sexual impropriety, investigate, take action as necessary and communicate to all involved, all as you document, document, document.

But wait. Isn’t there another side of the sexual harassment coin? Absolutely. While there are those in our industry who would abuse their positions, the more likely scenario is that your staff will be the victims, not the victimizers. As an industry, we have responded to this problem for our leasing agents. Many companies have policies in place to better protect these professionals in the scariest of their job requirements: going into empty apartments with strangers. But fewer companies have addressed the issue for maintenance professionals, regarding the scariest of their job requirements: going into occupied apartments when the residents are home. Perhaps this is because of a double standard: more leasing agents are women, while more maintenance professionals are men, and we seem to think that sexual harassment does not bother them. But sexual harassment by definition is unwanted attention and, for those willing to listen, our industry’s maintenance professionals have stories to tell and ideas to share about how their workplaces can be made safer.

So, with a tip of the hat to all of those maintenance professionals who opened the eyes of this author and shared their stories, here are the ideas that they have on this topic.

  • Consider a policy encouraging and allowing maintenance professionals the opportunity to leave a unit at any time that they believe the situation is uncomfortable. If a resident is making comments, gestures or touching inappropriately, or if the environment itself is threatening (hard-core pornography being played, as in a real-life example), no employee should have to stay and take it.
  • In return, the maintenance employee should be required to immediately notify management of the scenario, plus advise management that the employee has left the unit and explain why.
  • Respond to the input from your maintenance professionals that they are uncomfortable with a particular resident and either send someone else to complete work orders or send someone to accompany your employee.
  • Insist that no maintenance professional will ever be in an occupied unit unless there is a written work order (emergencies excepted). If a resident entices your employee into the unit and the employee does not respond as hoped for, that resident is likely to contact management and accuse the employee of wrongdoing. Without a written work order, your employee could be in a dangerous situation.
  • Make it clear to residents and maintenance professionals alike that unless there is an emergency (fire or flood) no maintenance professional will be alone in the unit with someone’s minor child.

A wise landlord will consider these ideas and develop a written policy to incorporate them. Why? Well, actually, there are three reasons. First, it is the right thing to do. Second, your failure to protect your employees from sexual harassment (or worse, to expect them to take it) can result in your being sued by your own employees. And last, industry surveys consistently show that your primary resident-retention tool is your professional maintenance staff. And isn’t it just good business to protect your assets?

The opinions exprssed in this article are those of the author and do not necessarily reflect the viewpoint of SFAA or the San Francisco Apartment Magazine. Nadeen Green is senior counsel with For Rent Magazine®. The information contained in the article is not to be considered legal advice, and the author and FRM strongly recommend that you consult with your own counsel regarding any fair housing questions or problems you may have. Copyright © 2006 by the San Francisco Apartment Magazine. All rights reserved.