Sexual Harassment

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Sexual Harassment 2021-07-12T13:43:57+00:00

KNOW YOUR RIGHTS:

Survivors of Sexual Harassment

Persons Protected By Sexual Harassment Laws

Sexual harassment includes any unwanted sexual advance, request for sexual favors, or other unwelcome verbal or physical conduct of a sexual nature. (link)  The U.S. Department for Housing and Urban Development (HUD) has noted, “harassment can be written, verbal, or other conduct, and does not require physical contact.” (link)

All persons have a right to be free of sexual harassment in the context of housing, which includes, among other things, living in their home, engaging in housing-related services, or attempting to secure housing. HUD has acknowledged that low-income women – often racial and ethnic minorities and persons with disability may be particularly vulnerable to sexual harassment in housing. (link)  Nevertheless, the sex, gender, gender identity, or sexual orientation of the person being harassed does not preclude that person from the legal protections afforded by fair housing laws. For example, lesbian, gay, bisexual, heterosexual, transgender, cisgender, and gender non-conforming persons are all included under these laws.

Federal Protection from Sexual Harassment in Housing Discrimination

The federal Fair Housing Act prohibits discrimination in housing, both public and private, and housing-related transactions on the basis of race, color, religion, sex, national origin, familial status, and disability.  Courts have consistently recognized sexual harassment as a form of sex discrimination that violates the Fair Housing Act. (link)  In 1989, HUD created fair housing regulations, which include examples of discriminatory housing practices related to quid pro quo sexual harassment and hostile environment harassment. Specifically, these regulations identified the following as illegal conduct: (a) denying or limiting housing-related services or facilities because a person refused to provide sexual favors; and (b) interfering with persons in their enjoyment of a dwelling because of race, color, religion, sex, disability, familial status, or national origin of such persons, or of visitors or associates of such persons. (link)

In September of 2016, HUD issued a rule defining the terms quid pro sexual harassment and hostile environment harassment. It stated that quid pro quo harassment,

“refers to an unwelcome request or demand to engage in conduct where submission to
the request or demand, either explicitly or implicitly is made a condition related to: the
sale, rental or availability of a dwelling; the terms, conditions, or privileges of the sale or
rental, or the provision of services or facilities in connection therewith; or the availability,
terms, or conditions of a residential real estate-related transaction.”

HUD defined hostile environment harassment as that which “refers to unwelcome conduct that is sufficiently severe or pervasive as to interfere with: the availability, sale, rental, or use or enjoyment of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision of enjoyment of services of facilities in connection therewith; or the availability, terms or conditions of a residential real-estate related transaction.

Additional Protection in Massachusetts

In addition to federal protections, the Massachusetts fair housing law prohibits housing discrimination on the basis of gender, gender identity, sexual orientation, marital status, age, ancestry, genetic information, veteran or active military status, and source of income (e.g. a housing voucher, food stamps, and Section 8) Mass. Gen. Laws Ch. 151B, § 4.

Massachusetts Civil Rights Act

Massachusetts state law prohibits any person from using threats, intimidation, or coercion to interfere with the secured rights of any other person. See Mass. Gen. Laws Ch. 12 §§ 11H-J.

Termination of a Lease

In Massachusetts, a tenant or co-tenant may terminate a rental agreement or tenancy and leave the premises if they notify the owner that a household member is (a) a victim of domestic violence, rape, sexual assault, or stalking as long as the notification is made within three months of the most recent act of domestic violence, rape, sexual assault or stalking; or (b) reasonably in fear of imminent serious physical harm from domestic violence, rape, sexual assault or stalking. Mass. Gen. Laws Ch. 186 §§ 24(a-b). An owner of a home cannot refuse to enter into a rental agreement based on an applicant having terminated a rental agreement due to such domestic violence, rape, sexual assault or stalking. Mass. Gen. Laws Ch. 186 §25. A housing subsidy provider also cannot deny assistance on this basis. Mass. Gen. Laws Ch. 186 §25.

Change of Locks

Upon request, a homeowner is required, in Massachusetts to allow the tenant (at the tenant’s expense) to change the locks of an individual dwelling unit where the tenant, co-tenant or household member lives if that person is under an imminent threat of domestic violence, rape, sexual assault, or stalking at the premises. Mass. Gen. Laws Ch. 186 §26(b). A homeowner cannot refuse to enter into a rental agreement based on an applicant having requested a change of locks on this basis. Mass. Gen. Laws Ch. 186 §25. A housing subsidy provider also cannot deny assistance on this basis. Mass. Gen. Laws Ch. 186 §25. If a landlord prevents the tenant from changing the locks or otherwise fails to make a good faith effort to provide a new key to said tenant, co-tenant, or household member requesting the lock change, is liable for the greater of actual and consequential damages or three months’ rent. Mass. Gen. Laws Ch. 186 §26(g).

The Act to Prevent Harassment

In Massachusetts, any person suffering from harassment may file a complaint requesting protection from such harassment. Mass Gen. Laws Ch. 258E § 3(a). A person can seek a harassment prevention order against any other person who has harassed, stalked, or sexually assaulted them, irrespective of the relationship between the two parties . The person seeking a harassment prevention order can request that the offender:
  • not abuse them by physical harm, attempt to physically harm, or place them in fear of imminent serious physical harm, and stop harassing (a) by any willful and malicious conduct aimed at them and intended to cause fear, intimidation, abuse, or damage to property; (b) by using force, threat, or duress to make them engage in sexual relations unwillingly; or (c) by committing against them any act that violates the Commonwealth’s laws on indecent assault and battery, rape, statutory rape, assault with intent to rape, enticing a child, criminal stalking, criminal harassment, or drugging for sexual intercourse;
  • not content them, unless authorized by the Court;
  • remain away from their residence and/or workspace; or
  • pay monetary compensation for losses (e.g. loss of earnings, out-of-pocket losses for injuries sustained or property damaged, cost of replacement locks, medical expenses, cost for obtaining an unlisted phone number) suffered as a direct result of the harassment. Mass. Gen. Laws Ch. 258E, § 3(a).
Violating a harassment prevention order is a criminal offense punishable by 2.5 years imprisonment and a fine of as much as $5,000. In response to each violation of a harassment prevention order, courts in Massachusetts can order the offender to pay the person who requested the protection

monetary compensation (e.g. loss of earnings, out-of-pocket losses for injuries sustained or property damaged, cost of replace locks, medical expenses, cost for obtaining an unlisted phone number).

A restraining order can be granted for as long as one year as three years and can be extended for additional time as the court deems necessary to protect the plaintiff from harassment. Gen. Laws Ch. 258E, § 3(d).

Additional Protection in Rhode Island

In addition to the federal protections, the Rhode Island Fair Housing Practices Act (R.I. Gen. Laws § 34-37-4) also prohibits housing discrimination on the basis of sexual orientation, gender identity, gender expression, marital status, source of income (e.g. a housing voucher, food stamps, Section 8, child support, alimony) military status as a veteran with an honorable discharge or general administrative discharge, status as a servicemember in the armed forces, country of ancestral origin, age, whether a member of the household is, has been, or is threatened with domestic abuse, and whether a tenant or housing applicant has obtained, sought, or is seeking relief from any court in the form of a restraining order for protection from domestic abuse.

The Residential Landlord and Tenant Act in Rhode Island (R.I. Gen. Laws § 34-18) provides, among other things, the following, which may be implicated in circumstances surrounding sexual harassment:

Agreements
  • If a landlord deliberately uses a rental agreement containing provisions known to be unlawful, the tenant may recover, in addition to actual damages, an amount up to three months’ rent and reasonable attorney’s fees. § 34-18-17(b).
  • If a provision in a rental agreement or settlement agreement is unconscionable (that is, of a degree so unreasonable or unfair) when made, the court may refuse to enforcement the agreement. § 34-18-13(a).
Rules and Policies
  • A rule or regulation, created by the landlord and concerning a tenant’s use and occupancy of the premises, is unenforceable if:
  1. its purpose is not to (a) promote the convenience, safety, or welfare of tenants on the premises; (b) preserve the property from abusive use; or (c) make a fair distribution of services and facilities held out for tenants generally;
  2. it is not reasonably related to its purpose;
  3. it is not sufficiently explicit in its prohibition, direction or limitation of tenant’s conduct to fairly inform the tenant of what the tenant must or must not do to comply;
  4. it does not apply to all tenants on the premises in a fair manner;
  5. it its purpose is for a landlord to evade duties; or
  6. tenant does not have notice of it. § 34-18-25(a).

Entry and Access

  • A landlord cannot abuse the right of access or use that right to harass the tenant. Unless impracticable or in the instance of an emergency, the landlord must give two days’ notice of intent to enter and may only enter at the dwelling at reasonable times. § 34-18-26(C).
  • If the landlord unlawful enters the dwelling, lawfully enters in an unreasonable manner, or makes repeated demands for otherwise lawful entry that has the effect of unreasonably harassing the tenant, the tenant may obtain relief to prevent the recurrence of the conduct or terminate the rental agreement. § 34-18-45(b).

Rent

  • Before increasing rent, a landlord for a residential tenancy, must provide notice of the increase in writing to a tenant at least 30 days before the rent is increased. § 34-18-16.1.
Maintenance and Services
  • A landlord must comply with the requirements of applicable building and housing codes affecting health and safety; make repairs and do “whatever is necessary to put and keep the premises in a fit and habitable condition,” and keep all common areas of the premises in a clean and safe condition; and maintain in good and safe working order and a condition all electrical, plumbing, sanitary, heating, ventilating, air conditioning, and other facilities and appliances, supplied or required to be supplied by the landlord. § 34-18-22(a). A tenant may recover actual damages and receive injunctive relief for a landlord’s failure to comply. § 34-18-28.
  • If a landlord unlawfully removes a tenant from the premises or willfully (i.e. intentionally, knowingly and purposely without justifiable excuse) diminishes services to a tenant by interrupting an essential service, the tenant may recover possession of the dwelling or terminate the rental agreement. The tenant may also recover possession, terminate the rental agreement, and recover the greater of three months of rent or threefold the actual damages sustained. § 34-18-34.
Retaliation
  • A landlord may not retaliate by increasing rent, decreasing services, or by threatening eviction because a tenant availed themselves of any lawful rights or remedies. § 34-18- 46(a)(4). If a landlord engages in this sort of retaliation the tenant is entitled to recover possession, terminate the rental agreement, and recover the greater of three months of rent or threefold the actual damages sustained. § 34-18-46(b).

Rhode Island Domestic Violence – Restraining Order

In Rhode Island, a person may petition the court for an order (e.g. a restraining order) that will protect and support that person (and/or that person’s minor child) from sexual exploitation or domestic abuse. (R.I. Gen. Laws § 15-15-3) Rhode Island law defines domestic abuse, in pertinent part, as attempting to cause or causing physical harm; placing another person in fear of imminent serious physical harm; causing another to engage involuntarily in sexual relations by force, threat of force, or duress; stalking; or cyberstalking. § 15-15-1. A person can seek a restraining order against present or former family members, parents, stepparents, or, if a minor, a person with whom that minor has been in a substantive dating relationship.
§ 15-15-1. Among other things, the person seeking a restraining order can request:
  • that the offender be restrained from contacting, assaulting, molesting, sexually exploiting or interfering with the person at home or on the street;
  • that the offender vacate the household immediately;
  • that the person retain custody of minor children, rather the offender; and
  • that the offender surrender firearms. § 15-15-3(a).
The person suffering from domestic abuse has an opportunity to be present and testify when the court considers the petition.

§ 15-15-3(i). If a court grants the order and the offender violates it, the  offender can be found in contempt of court, guilty of a misdemeanor, punished by a fine totaling as much as $1,000, and imprisoned for as long as one year for the initial violation. § 15-15-3(n)(1). Subsequent violations of offenses punishable as a misdemeanor involving domestic violence can, ultimately, be deemed a felony punishable for as many as 10 years in prison. § 15-15-3(n)(2); § 12-29-5. A restraining order can be granted for as many as three years and can be extended for additional time if necessary to protect against abuse. § 15-15-3(m)(2).

Some Activities Covered Under Fair Housing Law

  • Sales, rentals, services, facilities, policies, and negotiations related to housing;
  • Statements of preference, limitation, or discrimination in housing transactions;
  • Eviction and termination of residency;
  • Housing eligibility determinations;
  • Tenant screening;
  • Provision of reasonable accommodation and modification for persons with disabilities;
  • Terms, conditions, and privileges of the sale or rental of housing;
  • Aided someone else in engaging in housing discrimination;
  • Relations between residents;
  • Interference with a person’s enjoyment of a dwelling; and
  • Retaliatory conduct made as a result of another person asserting fair housing rights.

Persons Prohibited from Engaging in Sexual Harassment in Housing

All persons are prohibited from engaging in sexual harassment. In the context of housing, this might refer to landlords, property owners, developers, management companies, condo associations, property managers, housing authorities, real estate agents, builders, brokers, lenders, contractors, or other employees or agents of a housing provider as well as fellow tenants or other neighbors.

In addition, a housing provider is liable under the Fair Housing Act for the discriminatory conduct of the provider’s agents as well as that of third parties (e.g. other tenants) if the housing provider knew or should have known of the discriminatory conduct, has the power to correct it, and failed to do so. (link)  The housing provider can be held liable in this capacity even when the provider’s failure to act or correct the conduct is not motivated by an intent to discriminate. (link)

Contrary to popular myth, the sex, gender, gender identity, or sexual orientation of the person responsible for the harassment does not exclude them from liability for the harassment.

Examples of Sexual Harassment that May Constitute Fair Housing Violations*

  • A landlord asks a person to perform sex or sexual favors to avoid eviction;
  • A housing provider asks a person to perform sex or sexual favors in exchange for reduced rent, repairs, excused late payments, or excused fees;
  • An agent of the housing provider engages in unwelcomed sexual conduct, which may include making unwanted sexual advances, groping or touching;
  • A property manager threatens eviction on the basis of refusal to engage in sexual conduct;
  • A landlord makes severe or pervasive unwelcome, sexually suggestive comments in person, over the phone, or via text and enters a residence without permission;
  • A contractor of the housing provider refuses to repair a residence if a person does not send nude photos;
  • A homeowner refuses to rent or sell a home to a person because of their gender, gender identity, gender expression, or sexual orientation;
  • A housing provider attempts to evict or increase rent for reporting sexual harassment; or
  • Housing authority employees retaliate for reporting sexual harassment or refusing sexual advances.

*This list does not include every example of sexual harassment. If you believe you have been sexually harassed by a landlord, housing provider, or any employee, agent, or contractor of the housing provider, please contact SouthCoast Fair Housing today to learn more about your options and how the law may protect you.

What evidence might be used in bringing a sexual harassment claim?
  1. Testimony from the person who experienced or any person who witnessed the severe or pervasive unwelcome, sexually suggestive comments or conduct.
  2. Emails, text messages, screenshots of Snapchats, or other forms of communication that show a landlord is requesting sexual favors in exchange for reduced rent or repairs.
  3. Application materials that may inquire about your sexual orientation.
  4. Diary entries or notes made by the person who experienced the sexual harassment regarding: what happened; when and where it happened; any statements made; the names and position of the harasser; the names, addresses, and phone numbers of any witnesses or any other tenants who have also been harassed; and/or how the person experiencing the harassment felt when the event(s) transpired.
  5. Any other documents related to the harassment, including: notes or gifts from the harasser, rent increase notices, warning notices, eviction notices, or police reports.
  6. Recordings of conversations that have been lawfully obtained. In Rhode Island, you are not required to disclose that you are recording if you are a party to the conversation or at least one person is a party to the conversation consents to the recording after having full knowledge and notice that the conversation will be recorded. In Massachusetts, it is only legal to record audio if every person being recorded knows they are being recorded. To see the recording laws applicable for other states, visit https://www.mwl-law.com/wp-content/uploads/2018/02/RECORDING-CONVERSATIONS-CHART.pdf.

Additional Law That Protects Against Sexual Harassment in Housing

The “Violence Against Women Act (VAWA) 42 U.S.C. ch. 136, Subchapter III VAWA is a federal law that protects against domestic violence, sexual assault, dating violence, and stalking. In some instances, particularly when the housing provider receives federal funding, VAWA operates in concert with the Fair Housing Act to offer additional protections. (link) Despite the name of the law, VAWA does not just protect one group of people; it protects men, lesbian, gay, bisexual, transgender, and gender-non-conforming persons as well as women.

If you believe you have experienced sexual harassment or other forms of harassment based on your identity in a protected class, please contact SouthCoast Fair Housing for additional information and assistance. You may also file a Complaint directly with the U.S. Department of Housing and Urban Development, Massachusetts Commission Against Discrimination, or Rhode Island Commission for Human Rights or contact the U.S. Department of Justice’s Sexual Harassment in Housing Initiative.

For more information, to schedule a fair housing training, or to file a housing discrimination complaint, call (774) 473-9994 or (410) 285-2550, email info@southcoastfairhousing.org , or complete an online intake form (http://southcoastfairhousing.org/intake-form/) and a SouthCoast Fair Housing specialist will be sure to follow up with you.

The work that provided the basis for this publication was supported by funding under a grant (EOI190024) with the U.S. Department of Housing and Urban Development.  The substance and findings of the work are dedicated to the public. The author and publisher are solely responsible for the accuracy of the statements and interpretations contained in this publication.  Such interpretations do not necessarily reflect the views of the Federal Government.