if it’s offensive enough to cotenants based on race, religion, sex, national origin, disability, or familial status (or, in some jurisdictions, sexual orientation, political affiliation, occupation, or “matriculation”). That’s what Neudecker v. Boisclair Corp., a case that the Eighth Circuit federal court of appeals decided last month, held as to disability, but its logic applies equally to all the other categories. The court held, among other things, that landlords are liable under housing discrimination law for “hostile housing environments” created by their tenants’ speech, just as employers are liable for “hostile work environments” created by their employees’ (and patrons’ speech).
The court doesn’t go into great detail about what the legal rule would be, or about the particular harassment at issue here, which apparently consisted of a tenant being “constantly harassed and threatened” based on his disability, which is obsessive-compulsive disorder. But given the hostile work environment cases that the court relies on by analogy, it’s clear what the rule would be:
- If the other tenants’ conduct or speech is “severe or pervasive” enough
- to create a “hostile, abusive or offensive” housing environment,
- for the plaintiff and for a reasonable person,
- based on race, religion, sex, national origin, age, disability, and familial status,
- and if the landlord is notified of this,
then the landlord must stop such speech — for instance, by threatening to evict, or evicting, the offending tenants (if their leases so allow). The tenant in this case alleged that the harassment was severe enough that it led to him move, but presumably that wouldn’t be part of the test. And this is true even if the tenants’ speech isn’t within some existing First Amendment exception (such as the one for threats). It could cover offensive political statements, sexually themed displays, sexually themed jokes, religious proselytizing, and so on, as is the case in the workplace.
Say, for instance, that some tenants are very hostile to fundamentalist Christianity. They often condemn fundamentalist Christians (referring to them as “Jesus freaks”) in conversations in common areas, such as around the swimming pool, in the laundry room, or in hallways. (Such conversations are overheard by fundamentalist Christian tenants every couple of weeks.) They sometimes wear T-shirts that contain anti-fundamentalist-Christian messages, and put bumper stickers with anti-fundamentalist-Christian messages on the cars that they park in the building’s garage. The landlord also allows all tenants to put up posters on their own doors (so long as they don’t physically damage the door); the anti-fundamentalist tenants have put up some posters that ridicule fundamentalist Christianity. They do not make such statements directly to other fundamentalist Christian tenants, but they’re well aware that fundamentalist Christian tenants might see the posters and hear the statements. But the anti-fundamentalist tenants don’t care: They want to express their views, and don’t care that others might be offended.
The fundamentalist Christian tenants go to the landlord, and say: The other tenants’ speech has created an environment that’s hostile to us based on our religion (and that a reasonable person would find hostile based on religion). Tell the other tenants that they must stop this, and that you’ll evict them if they don’t stop. The landlord would then have a legal obligation — enforceable by the threat of a substantial damages verdict — to stop the anti-fundamentalist tenants from expressing their offensive viewpoints.
I’ve argued before that hostile work environment law that mandates similar workplace speech codes is itself unconstitutional. But I’ve also argued that once such speech restrictions are allowed under a “hostile work environment” theory, they’d spread from offices and factories to other places: restaurants, bars, universities, newspapers, even apartment complexes (see, for instance, here). The Neudecker case, which makes clear that offensive speech by tenants can lead to landlord liability just as offensive speech by employees can lead to employer liability, is just one more piece of evidence.
Hostile environment harassment law is one of the broadest speech restrictions in existence today. And it’s getting broader still.