Tenant States Claims Under the Fair Housing Act and New York City Human Rights Law Following Sexual Harassment By Superintendent

A recent federal court decision illustrates the rights that tenants, particularly those in New York City, have against discrimination outside the employment context.

In Ponce v. 480 East 21st Street LLC, the court held that plaintiff stated a sex discrimination claim under the New York City Human Rights Law, and retaliation claims under that statute and Title 8 of the Civil Rights Act of 1968 (the “Fair Housing Act“), following the termination of her lease after she complained about sexual harassment and assault by her superintendent.

Specifically, plaintiff alleged that her superintendent, Taveres, made unwanted sexual advances and comments about her anatomy, and that on November 15, 2011 he “intentionally touched [her] buttocks for the purpose of gratifying his sexual desires and humiliating and degrading [her]”.  She then filed a complaint against Taveres with the NYPD.  In a subsequent letter, her building’s managing agent advised her by letter that “[d]ue to” the November incident, it would not be renewing her lease.

Plaintiff Did Not Plausibly Allege Sex Discrimination Under the FHA

The FHA prohibits discrimination, including sexual harassment, “against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of … sex.” When evaluating these claims courts apply the legal standard for sexual harassment under Title VII of the Civil Rights Act of 1964.

Plaintiff failed to provide sufficient detail – she only alleged, for example, unspecified “unwanted sexual advances” – to make out a FHA claim. Also, her allegation regarding the November 15, 2011 incident was a “single, isolated episode that does not rise to an actionable level under the FHA.”

Plaintiff Plausibly Alleged Sex Discrimination Under the NYCHRL

The court reached a different result, however, regarding plaintiff’s New York City Human Rights Law discrimination claim. Notably, the court is required to interpret the NYCHRL more broadly than its federal and state counterparts:

The NYCHRL similarly prohibits sexual harassment in the housing context, N.Y.C. Admin. Code § 8-107(5)(a)(2), but plaintiff’s claim under this law “requires an independent analysis” because it is not “coextensive with its federal and state counterparts.”  Rather, “interpretations of state and federal civil rights statutes can serve only as a floor below which the [NYCHRL] cannot fall,” and the NYCHRL must be “construed liberally” for its “uniquely broad and remedial purposes.” A plaintiff claiming sexual harassment under the NYCHRL need only allege “unequal treatment” based on sex. The severity and pervasiveness of the alleged conduct are relevant to damages but not liability.

The court concluded that “[u]nder this lower standard, plaintiff has sufficiently stated a claim by alleging that she was subjected to unwelcome harassment of a sexual nature on November 15, 2011” and that “[t]he isolated nature of the harassment does not preclude the claim.”

Plaintiff Plausibly Alleged Retaliation Under the FHA

The FHA prohibits retaliation. Specifically:

Under the FHA, it is “unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of … any right granted or protected by [the FHA]. The elements of a prima facie retaliation claim under the FHA are (1) the plaintiff engaged in protected activity, (2) the defendant was aware of this activity, (3) the defendant took adverse action against the plaintiff, and (4) a causal connection exists between the protected activity and the adverse action.

Plaintiff plausibly alleged retaliation, notwithstanding defendants’ argument that the November 15, 2011 was one of many reasons for the non-renewal of plaintiff’s lease.

As to the first three elements, the court held:

[Plaintiff] engaged in protected activity by filing a complaint against Tavares with the police for conduct that she considered to be sexual harassment. Defendants were aware of this complaint because the nonrenewal letter she received specifically references “the incident in which precinct 070 was involved.” They took an adverse action by refusing to renew her lease.

The court then discussed why plaintiff plausibly alleged the fourth element (causation):

Defendants dispute the fourth element, arguing that the November 15, 2011 incident “was not the ultimate reason” for the nonrenewal of plaintiff’s lease; rather, it “was merely the straw that broke the camel’s back” because of “the continued contentious history between” plaintiff and Tavares. The implication of this argument is that plaintiff must prove her protected activity was the sole motive for the nonrenewal decision rather than played a part in that decision. Even assuming this questionable premise, the Complaint alleges a single, retaliatory motive. The nonrenewal letter states: “Due to the incident which occurred with the super, Freddy, on November 15, 2011 in which precinct 070 was involved, we regret to inform you that we will not renew your lease.” Although this may mean that the motive for nonrenewal was the altercation between plaintiff and Tavares, it is plausible that the motive was plaintiff’s complaint to the police, i.e., her protected activity. The letter does not reference a “contentious history” or any other motive for the nonrenewal. Therefore, plaintiff states a claim for retaliation.

Notably, the court refused to incorporate into the FHA the “but for” retaliation causation standard – that is, that an “illegal motive was the sole reason for the adverse action” – recently imposed by the Supreme Court in Title VII retaliation cases in Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013). It was hesitant to apply this standard in the FHA context, since Nassar “was based, in part, on Title VII’s statutory scheme and the specific text of its retaliation provision.”

Plaintiff Plausibly Alleged Retaliation Under the NYCHRL

Plaintiff also stated a retaliation claim under the New York City Human Rights Law, which similarly

prohibits retaliation against any person who has “opposed any practice forbidden under this chapter.” The retaliatory act is unlawful if it is “reasonably likely to deter a person from engaging in protected activity,” even if it does not “result in an ultimate action . . . or in a materially adverse change in the terms and conditions of” housing.

The court held that Plaintiff plausibly pled a retaliation claim under this standard:  “She alleges that she opposed the alleged sexual harassment by filing a complaint with the police, and that defendants refused to renew her lease, which would likely deter a person from making such a complaint.”

Plaintiff Failed to Plausibly Allege Assault

Finally, the court dismissed plaintiff’s assault claim under the vicarious liability theory of respondeat superior, since plaintiff pleaded no facts indicating that Taveres’ alleged assault was anything but “a clear departure from the scope of employment, [and] committed for wholly personal motives.”