HUD releases final rule on harassment, guidance on nuisance ordinances

This morning, the Department of Housing and Urban Development (HUD) published in the Federal Register a final rule to formalize legal standards under the Fair Housing Act with respect to sexual and other forms of harassment in housing.

The rule, “Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices under the Fair Housing Act,” focuses on standards for use in investigations and adjudications involving allegations of harassment on the basis of race, color, religion, national origin, sex, familial status, and disability. It also specifies how HUD will evaluate complaints of quid pro quo (“this for that”) and hostile environment harassment under the act, in addition to providing for uniform treatment of Fair Housing Act claims raising allegations of such harassment in administrative and judicial forums. Major provisions of the harassment final rule include:

• Formalizing definitions of quid pro quo harassment and hostile environment harassment under the Fair Housing Act
• Formalizing standards for evaluating claims of quid pro quo and hostile environment harassment under the act
• Adding illustrations of prohibited quid pro quo and hostile environment harassment to HUD’s existing Fair Housing Act regulations
• Identifying traditional principles of direct and vicarious liability applicable to all discriminatory housing practices under the act, including quid pro quo and hostile environment harassment

Part 100 of Title 24 of the Code of Federal Regulations (CFR) is the only part affected by the new rule. To view specific regulatory changes, most of which consist of additions, see pages 71 through 78 of the pre-publication copy of the harassment final rule, available here.

In an accompanying press release, HUD also announced that its Office of General Counsel (OGC) has issued new guidance on the application of Fair Housing Act standards to the enforcement of local “nuisance” and other “crime-free” housing ordinances to protect survivors of domestic violence, other crime victims, and those in need of police or emergency services. The basic idea behind the guidance is to explain how the Fair Housing Act applies to ensure that such ordinances do not lead to discrimination in violation of the act.

Of particular interest, Section III of the guidance lays out the three steps used to analyze whether a local government’s enforcement of such ordinances results in a Fair Housing Act violation. This includes:

• Evaluating whether the challenged nuisance or crime-free housing ordinance policy or practice has a discriminatory effect
• Evaluating whether the challenged ordinance is necessary to achieve a substantial, legitimate, nondiscriminatory interest
• Evaluating whether there is a less discriminatory alternative

A different analytical framework is used to evaluate claims of intentional discrimination, as outlined in Part IV of the guidance. For claims in which the ordinance is enacted for discriminatory reasons, courts look to certain factors, including:

• The impact of the ordinance, i.e., whether it disproportionately impacts a certain population such as women, minority residents, or residents with disabilities
• The historical background of the ordinance
• The sequence of events by which the ordinance was adopted
• Departures from the normal procedural sequence
• Substantive departures, such as whether the factors considered should have suggested a different result
• The legislative or administrative record

For claims in which the ordinance is selectively enforced in a discriminatory manner, the guidance notes that courts look for evidence from which an inference can be drawn—whether direct or circumstantial. Further details can be found in the Part VI of the guidance.

Finally, the guidance reminds those administering HUD programs of their duty to affirmatively further fair housing—to take meaningful action to overcome fair housing issues and barriers to housing—and to frame the assessment of nuisance and crime-free ordinances within this affirmative duty.

To read the press release on this guidance and the harassment final rule, click here. To access the guidance document, click here.

Do you have concerns about whether or not your agency is compliant with federal fair housing law? Nan McKay and Associates can help. Contact sales@nanmckay.com for more information.