Sexual Harassment is Prohibited by the Fair Housing Act, 11th Circuit Holds

In a recent decision, the U.S. Court of Appeals for the Eleventh Circuit[1]Note: This firm does not engage in the practice of law, and its owner is not licensed to practice law, in the jurisdiction which issued this decision. held that the federal Fair Housing Act prohibits, as a form of “discrimination,” sexual harassment.

The case is Fox v. Gaines et al, No. 20-12620, 2021 WL 3009368 (11th Cir. July 16, 2021). The court reasoned by analogy, citing textual similarities between the FHA and Title VII of the Civil Rights Act of 1964 (a federal law which prohibits, among other things, “discrimination” in employment), and U.S. Supreme Court decision interpreting Title VII.

The court explained:

The FHA makes it unlawful to “discriminate 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.” 42 U.S.C. § 3604(b). The Supreme Court has held that the words “because of” and “based on” indicate “but-for causality.” Burrage v. United States, 571 U.S. 204, 213 (2014). So, by its plain meaning, the FHA protects a tenant or prospective homebuyer from receiving differential or less favorable treatment in housing terms, conditions, or privileges if the but-for cause of that treatment is her sex.

When interpreting the FHA, we—like our sister circuits—look to cases interpreting Title VII, which uses language virtually identical to the FHA’s.7 See, e.g., DiCenso, 96 F.3d at 1008; Honce, 1 F.3d at 1088; see also Kyles v. J.K. Guardian Sec. Servs., Inc., 222 F.3d 289, 295 (7th Cir. 2000) (“Courts have recognized that [the FHA] is the functional equivalent of Title VII … so the provisions of these two statutes are given like construction and application.”). Turning to cases interpreting Title VII confirms our conclusion that the FHA prohibits sexual harassment.

Interpreting Title VII, the Supreme Court ruled that “[w]ithout question” sexual harassment is a form of sex discrimination within the meaning of Title VII’s nearly identical prohibition on “discriminat[ion] … because of … sex.” Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 63–67 (1986) (quoting 42 U.S.C. § 2000e-2(a)(1)); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79–80 (1998) (“Title VII prohibits ‘discriminat[ion] … because of … sex’ ” which includes “sexual harassment of any kind that meets the statutory requirements.”). In Meritor the Court relied on the reasoning of our decision in Henson v. City of Dundee, where we held that “a hostile or offensive atmosphere created by sexual harassment can, standing alone, constitute a violation of Title VII,” explaining that a “pattern of sexual harassment inflicted upon an employee because of her sex is a pattern of behavior that inflicts disparate treatment upon a member of one sex with respect to terms, conditions, or privileges of employment.” 682 F.2d 897, 902 (11th Cir. 1982); see Meritor, 477 U.S. at 66–67. Following Meritor and Henson, we have consistently held that sexual harassment constitutes impermissible sex discrimination under Title VII where, but for the fact of the claimant’s sex, she would not have been the object of harassment. See, e.g., Mendoza v. Borden, Inc., 195 F.3d 1238, 1244–45, 1248 n.5 (1999) (en banc); Fleming v. Boeing Co., 120 F.3d 242, 244 (11th Cir. 1997) (“Two types of sexual harassment are prohibited by Title VII: quid pro quo harassment and hostile work environment harassment.” (emphasis omitted)). As these Title VII cases make clear, the plain text of “discriminat[ion] … because of … sex,” 42 U.S.C. § 3604(b), includes sexual harassment where the plaintiff proves that, but for her sex, she would not have been subjected to sexual harassment.

Thus, we hold that sexual harassment—both hostile housing environment and quid pro quo sexual harassment—is actionable under the FHA, provided the plaintiff demonstrates that she would not have been harassed but for her sex.

Based on this, the Eleventh Circuit vacated the district court’s order granting defendants’ motions to dismiss, and remanded the matter to the district court and directed it to consider whether plaintiff adequately alleged violations of the FHA.

1 Note: This firm does not engage in the practice of law, and its owner is not licensed to practice law, in the jurisdiction which issued this decision.
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