Condo Media - January 2017 - 44

HOSTILE HOUSING & HARASSMENT, OH MY!
Recognizing the need for such
standards to use in investigations and
adjudication of claims of discrimination based on harassment and hostile
environments, the Department of
Housing and Urban Development,
commonly referred to as "HUD," on
Sept. 14, 2016, released new rules and
regulations to be applied both in administrative hearings and in cases filed
in the state and federal courts. These
rules and regulations went into effect
on Oct. 14, 2016.
It is worth mentioning that both
federal law and the state law, in Massachusetts M.G.L. c. 151B had already
imposed certain responsibilities on
community associations to take action
when the board had been informed of a

"It will be interesting
to see how the
administrative agencies and the courts
apply these new
formalized standards."

potential hostile environment allegedly being created by one unit owner
against another, or a group of unit
owners, who would be considered to be
a protected class.
In fact in a recent matter before the
Massachusetts Commission Against
Discrimination (the "MCAD"), in which
this office successfully represented the
board, the hearing investigator cited the
following as the standard to be applied
in determining whether a board created
or unjustly allowed a hostile environment to exist.
"In order for the Complainants to
establish a prima facie case of discriminatory harassment in housing, Complainants must show that: (1) they are
members of a protected class; (2) they
were subjected to unwelcome verbal or
physical conduct related to their protected class; (3) the harassment was sufficiently severe or pervasive to interfere
with Complainants' use or enjoyment of
their home; and (4) the harassment was
either carried out by the landlord, owner,
property manager, or their agent/employee, or Respondent knew or should
have known of the harassment and failed
to take prompt remedial action."
Note that within the condominium
context, the laws are clear that the governing board is deemed to be "the owner."
With the recent release of the rules
and regulations by HUD, a more formalized and expanded system of determining when liability will be imposed
has been created.
Briefly, the rule specifies how HUD
will treat complaints of quid pro quo
("this for that") harassment and hostile
environment harassment going forward.
The four key components of the rule
are as follows:
There is now a formal definition of
"quid pro quo harassment" and "hostile environment harassment."

The rule includes illustrations of
situations that will be considered to
be allowing a hostile environment to
exist; and
The rule identifies when a housing
provider, including community associations may be held responsible
for actions by third parties in allowing
harassment or hostile environment
harassment to exist.
At a minimum, the rules impose
liability when a condominium board
knew or should have known of the
discriminatory conduct of a third
party (i.e. unit owner) and failed to
take prompt action to correct it when
the board had the power to correct
and end a discriminatory housing
practice, either under the law or pursuant to its governing condominium
documents.
The rules also state that investigators
and courts should look at the totality of
the circumstances and apply the "reasonable person standard." Under the
rules, the standard is, "Whether unwelcome conduct is sufficiently severe or
pervasive as to create a hostile environment is evaluated from the perspective
of a reasonable person in the aggrieved
person's position."
As stated earlier, while the liability
under both state and federal law already
existed for boards, it will be interesting
to see how the administrative agencies
and the courts apply these new formalized standards.
If anything, the new rules serve as a
reminder that when in doubt about a
situation described as harassment or
creation of a hostile housing environment that has been reported to the
board, boards would be advised to
quickly contact their legal representative for guidance.

PAMELA JONAH, ESQ. IS WITH

There are now formalized standards
that will be used in both state agencies
(in Massachusetts the MCAD) and in
both state and federal courts;

44

CONDOMEDIA

THE LAW FIRM OF GOODMAN,
SHAPIRO AND LOMBARDI, LLC.
Condo Media - January 2017

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