Homeowner associations are notorious for issuing notices for the smallest infractions, so why are they silent when it comes to sexual harassment?
The California Department of Fair Employment and Housing (“DFEH”) receives and investigates fair housing complaints based on numerous protected statuses. In 2017, a total of 212 claims were filed that alleged sex or gender discrimination. Though sexual harassment protections are already included in state law (Cal. Gov’t § 12900. et seq.) and federal law (24 C.F.R. 100, et seq.), DFEH has proposed amendments to its regulations regarding sexual harassment and the role of the homeowner association. (Cal. Code Regs. tit. 2, §§ 12000-12271). The proposed rules are expected to be in effect starting April 1, 2019.
A fair housing violation based on sexual harassment can occur in many instances. Common examples are: owner v. resident; manager v. resident; employee v. resident; and resident v. resident. If a renter harasses another renter, then the owner or manager can act, once notified, against the harassing renter by issuing a three-day notice to perform a covenant or quit or a termination notice if the behavior does not cease. The housing provider is able to do this under the theory that the harassing renter is disrupting the harassed renter’s quiet use and enjoyment of his/her unit. But what happens when a homeowner harasses another homeowner and the homeowner association (“HOA”) does not have the same mechanisms to stop the harassing behavior?
Homeowner associations had a responsibility before DFEH’s proposed rules to address sexual harassment, but there was confusion on what action the HOA should take especially when it involved two homeowners. Often, HOAs ignored the harassing behavior because it did not know what to do. The inaction of the HOA would allow the harassed homeowner to seek legal action against the HOA. Though the proposed rules do not include an action plan for the HOA to address sexual harassment, DFEH recommends for the HOA to act within its power to address sexual harassment. So, what should the HOA do?
1. Promptly investigate the harassed homeowner’s sexual harassment claims. This may involve interviewing both homeowners and witnesses, if any.
2. Have the harassing homeowner removed from the HOA board, if applicable. If the harassing homeowner is on the HOA board, move to have that homeowner removed or at least recused from voting on an issue involving the harassed homeowner.
3. Issue notices to the harassing homeowner. Though sexual harassment may not be an explicit rule in the HOA’s Covenants, Conditions, and Restrictions (“CC&Rs”), harassment is most likely included in an existing rule.
4. Create a “no sexual harassment” rule if the HOA does not already have one in its CC&Rs.
5. Issue fines to the harassing homeowner if the behavior does not cease. If the fines go unpaid, this could lead to a lien being placed on the harassing homeowner’s property and foreclosure.
This is a non-exhaustive list of steps an HOA could take. Though an HOA and property manager have different authority over residents, this does not absolve an HOA of its failure to act. HOAs have the duty to create and enforce rules for all homeowners to abide by and maintain a safe living environment.
HOAs should not shy away from their duties
when it comes to sexual harassment.
Note: This is not intended to serve as legal advice. Please consult an attorney if you have questions about your HOA’s responsibilities and liabilities.