Court Dismisses “Hostile Housing Environment” Claim Under the Fair Housing Act

In Favourite v. 55 Halley Street, Inc., 2019 WL 2226762 (S.D.N.Y. May 23, 2019), the court dismissed plaintiff’s claim of race discrimination under the federal Fair Housing Act (FHA).

The court summarized the law as follows:

Plaintiff alleges the Defendants engaged in discriminatory housing practices on the basis of race in violation of the Fair Housing Act (“FHA”), 42 U.S.C. § 3601 et. seq. The FHA was enacted “to eradicate discriminatory practices within a sector of our Nation’s economy.” Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., ––– U.S. ––––, 135 S.Ct. 2507, 2511, 192 L.Ed.2d 514 (2015); see 42 U.S.C. § 3601. The language of the FHA is “broad and inclusive.” Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 209, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972). To properly assert a claim pursuant to the FHA, a plaintiff must show a relationship between the discriminatory conduct and her or her housing. See Abrams v. Merlino, 694 F.Supp. 1101, 1104 (S.D.N.Y.1988) (“[P]laintiffs, to succeed, must demonstrate … a relationship between the harassment and housing.”) Claims of housing discrimination under the FHA are viewed under the McDonnell Douglas burden-shifting framework. …

Plaintiff asserts claims of discrimination under the FHA, 42 U.S.C. § 3604(b) (“Section 3604”) and 42 U.S.C. § 3617 (“Section 3617”). Specifically, under Section 3604(b) Plaintiff alleges that the Defendants “created a hostile housing environment based on race.” (Complaint, ¶ 153.) Section 3604 provides in relevant part, that it shall be unlawful to “discriminate against any person in the terms, conditions, or privileges of sale … a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin. 42 U.S.C.A. § 3604(b). Courts in this Circuit have construed Section 3604(b) of the FHA to prohibit the creation of a “hostile environment” by individuals who have control or authority over the “terms, conditions, or privileges of sale or rental of a dwelling,” similar to the prohibition imposed by Title VII against the creation of a hostile work environment. Cain v. Rambert, No. 13-CV-5807 MKB, 2014 WL 2440596, at *4 (E.D.N.Y. May 30, 2014) (citing Ponce v. 480 E. 21st St., LLC, No. 12-CV-C4828, 2013 WL 4543622, at *2 (E.D.N.Y. Aug. 28, 2013)). A plaintiff asserting a hostile housing environment claim pursuant to Section 3604(b) must establish that (1) she was subjected to harassment that was sufficiently pervasive and severe so as to create a hostile housing environment, (2) the harassment was because of the plaintiff’s membership in a protected class, and (3) the defendant(s) is responsible for the allegedly harassing conduct towards the plaintiff.

In applying the law to dismiss plaintiff’s claim, the court noted, inter alia, that “Plaintiff, prior to commencing this action, never raised the issue of race as a factor in her disagreements with any of the residents and/or the Board.”  Furthermore, while plaintiff argued that the Board president “used language that reflected a racial bias”, including their “comments about the ‘types of people’ she was bringing into the building, and inquiry concerning ‘How can you afford to live here?'”, such statements “were about lifestyle and noise, not about race.” Also, while plaintiff alleged that the Board president made a remark that the super was “big, black and scary”, the court – while noting that it “does not condone this remark” – held that this was a non-actionable “stray remark.” The court also noted the presence of other residents of color in the building, and that there was “no showing … that they were treated as unwelcomed as Plaintiff alleges she was treated”, as well as the 27 noise warnings sent to residents of the building, including Plaintiff.