Anti-Gay Statements About Fellow Building Resident = Liability for “Hostile Housing Environment Harassment”

That’s what seems to be the holding of Gilbert v. 7355 South Shore Condominium Ass’n & Shelley Norton (Chi. Com. Hum. Rel’s July 20, 2011), leading to damages of $2100, fines of $1200, and “reasonable attorney fees and associated costs,” which I suspect are likely to be in the tens of thousands of dollars. The statements were said by a condo association manager about a condo owner, but as I’ll note below the logic of this case would likewise apply to tenants speaking about another tenant.

The case is complex, and involves unsuccessful claims of sexual orientation discrimination and race discrimination. (The plaintiff claimed various forms of discriminatory treatment — including eviction — by the defendant, but the commission held against the plaintiff, because it found that the plaintiff would have been subject to the same treatment even without regard to the defendant’s bias.) But here’s what seems to be the heart of the harassment claim, which the commission did accept (emphasis added):

[Vernita] Gray has provided ample direct evidence of Respondents’ discriminatory animus and creation of a hostile housing environment for Gray based on her sexual orientation. This included: Gray’s testimony that in March 2000, Norton told her that she would not turn the building into a Halsted Street; Butler’s testimony that Norton stated in June 2000 in relation to Gray that she was tired of this “gay ass shit”; Shields’ testimony that within the first couple of months of moving in, Norton told her that the walls were thin and intimate conduct could be heard, that she was not happy with Gray moving in because Gray did not respect the building’s culture, and that she did not want lesbian conduct in the building; and McMikel’s testimony that within a few months after she moved in during February 2003, Norton spoke of Gray and Gilbert being gay and of not wanting the gay lifestyle in the building….

[Commission] Reg. 420.175(b) … provides: “Slurs and other verbal or physical conduct relating to an individual’s membership in a Protected Class… constitutes harassment when the conduct: (i) has the purpose or effect of creating an intimidating, hostile or offensive housing environment; (ii) has the purpose or effect of unreasonably interfering with an individual’s housing; or (iii) otherwise adversely affects an individual’s housing opportunity.”

As recommended by the hearing officer, the Commission finds that Norton’s negative and derogatory comments about Gray’s sexual orientation had the purpose and effect of creating a hostile and offensive housing environment for Gray which interfered with her protected housing rights and violated the Chicago Fair Housing Ordinance.

Respondents object to this finding, arguing that in only one instance were the derogatory comments directed at Gray. Respondents’ objection is based on a narrow view of what constitutes hostile environment harassment that is not supported by the law. Certainly derogatory comments about Gray’s sexual orientation made to other persons (especially when they are other residents of the building) created a hostile housing environment just as derogatory comments made directly to Gray did.

Norton was the president of the condo association board, and may have been a paid employee. But since hostile housing environment harassment law has developed by analogy to hostile work environment harassment law, which holds employers liable for the speech of their employees, a condo association or landlord would likewise be liable for the speech of their members or tenants. It’s possible that a condo association might be absolved of liability on the theory that they can’t control their members’ speech, since presumably offensive speech about neighbors isn’t a ground for kicking someone out of a condo that he owns. But a landlord is indeed potentially liable for the speech of its tenants, since it could evict them, see Neudecker v. Boisclair Corp. (8th Cir. 2003).

And this decision illustrates that the possible liability isn’t just limited to insulting statements to a particular person, but also statements about that person. To repeat a hypothetical I posed earlier, say 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, or overheard by third parties who then tell the Christian tenants about them.)

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. And, as the Gilbert decision shows, the tenant-speakers would also be personally liable for damages and fines as well.

The same hypothetical could be given with regard to anti-extremist-Muslim views and anti-gay views, among others. And since the Chicago fair housing ordinance covers discrimination and therefore harassment based on “source of income,” “military discharge status,” “marital status,” and “parental status” (all defined quite broadly), there could be liability for statements that express hostility to welfare recipients, to lawyers or bankers, to veterans, to dishonorably discharged soldiers, to unwed parents, and more. And, as I noted, that’s true even if the statements aren’t personal face-to-face insults, but simply said about a neighbor to other neighbors — or (borrowing from hostile work environment harassment law) the group to which the neighbor belongs.

For more on hostile environment harassment law, including hostile work environment harassment law, see here. For hostile public accommodations law, which — like hostile housing environment law — applies similar speech restrictions outside the plaintiff’s workplace, and to places such as restaurants, parks, and the like, see here and here.