California Tenant States Claim Against Landlord Under FEHA for Failing to Intervene in Tenant-on-Tenant Sexual Harassment

The San Francisco Superior Court has recognized a tenant’s Fair Employment & Housing Act (FEHA) cause of action on allegations she was sexually harassed by another tenant.  In Battista v. NorthPoint Apartments, Plaintiff claims the harasser pursued her and when rebuffed he followed her to the laundry room several times and placed his hands on her, and that he stared at her from within his apartment, unclothed, using binoculars and fondling himself.  Although Plaintiff made multiple complaints, management refused to take any type of action against the harasser.

golden-gate-bridge-1433858-1-mDefendant demurred to this cause of action, which was overruled by the trial court.  Although FEHA does not contain specific language authorizing a claim of tenant on tenant harassment, FEHA is broadly interpreted to effectuate its purposes and  similar interpretations have been recognized in the past absent explicit language.  In Brown v. Smith (1997) 55 Cal.App.4th 767, 779, the trial court interpreted FEHA, which only proscribed “sex” discrimination in housing, to include “sexual harassment” despite there being no such specific language in the housing portion of the statute.  The Brown court, affirming the trial court in finding that FEHA nonetheless covers sexual harassment, relied upon:

• Statutory construction principles of reading the statutory scheme as a whole (55 Cal.App.4th at 777)
• In general, remedial statutes are construed liberally to accomplish the evident purpose of the legislation (55 Cal.App.4th at 778)
• Regarding employment, FEHA specifically proscribed “sexual harassment” (55 Cal.App.4th at 779)
• The Legislature’s policy statement “[T]he practice of discrimination because of race, color, religion, sex, marital status, national origin, ancestry, familial status, or disability in housing accommodations is declared to be against public policy.” (55 Cal.App.4th at 779 (citing Gov. Code § 12920)
• A comprehensive list of “housing accommodations provisions covered by Gov. Code § 12927, including the proscription of inferior terms, conditions or services in connection with the housing accommodations. (55 Cal.App.4th at 779)
• Nothing in the FEHA shall be construed to allow lesser rights than the Federal Fair Housing Act (FHA). FEHA provides greater rights and remedies than the FHA. (55 Cal.App.4th at 780 (citing Gov Code § 12955.6))
• FEHA “shall be construed liberally for the accomplishment of the purposes thereof.” (55 Cal.App.4th at 780-81 (citing Gov Code § 12993))

The Brown court went on to review several circuit cases and a district court case recognizing sexual harassment under the Federal Fair Housing Act (FHA).  Applied to the housing context, a claim is actionable ‘when the offensive behavior unreasonably interferes with use and enjoyment of the premises.’  Honce v. Vigil (10th Cir.1993) 1 F.3d 1085, 1090.  Given the FHA, the statutory scheme of FEHA and the rules of interpretation, the Brown court held that FEHA § 12955 covers sexual harassment. (55 Cal.App.4th at 782).  So it is here for “tenant-on-tenant” sexual harassment under FEHA. All of the statutory rules of construction remain in place. The same public policies that militated finding sexual harassment was covered by § 12955 when this specific term did not appear in the text are present here now.  The central principle is that a tenant is entitled to uninterrupted “use and enjoyment of the premises” (as cited above), in harmony with the well-established covenant of quiet use and enjoyment.

In Fahnbulleh v. GFZ REALTY, LLC, 795 F.Supp.2d at 361-62, plaintiff worked for defendant apartments, lived at the complex and was harassed by her neighbor with emails, propositions and having her path blocked.  The plaintiff complained to management who said they could not do anything about it.  The Fehnbulleh court looked to federal employment law, Title VII, which recognizes an employer’s duty to protect employees from harassment by non-employees under their “employ” (such as customers or suppliers). 795 F.Supp.2d at at 364.

Drawing upon principles that are well-established in the context of Title VII hostile-environment doctrine, Williams held that “[c]onduct is imputable to a landlord, if the landlord ‘knew or should have known of the harassment, and took no effectual action to correct the situation.’ ” 955 F.Supp. at 496 (quoting Katz v. Dole, 709 F.2d 251, 256 (4th Cir.1983)).  795 F.Supp.2d at at 364.

Just as the Fahnbulleh plaintiff was allowed to move forward with her tenant-on-tenant sexual harassment case, it is similarly just to allow plaintiff Battista to advance this claim:  The landlord here clearly knew or should have known of the harasser’s conduct – the numerous complaints by Battista are undisputed – and it was clearly within Defendant’s purview to take remedial measures including eviction (they eventually did).

As a California tenant on tenant harassment lawyer, I have experience in these matters and please feel free to contact me with questions.