Under the Fair Housing Act (“FHA”), it is 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). This means that the FHA protects a prospective tenant or homebuyer from receiving different or less favorable treatment in housing terms, conditions, or privileges based on their sex. Until recently, it was unclear whether sexual harassment qualifies as sex discrimination under the FHA.

In Fox v. Gaines, No. 20-12620 (11th  Cir. July 16, 2021), the Eleventh Circuit Court of Appeals definitively concluded that a property owner or landlord could be sued under the FHA for sexual harassment. In Fox, a property manager of an apartment made several sexual advances towards a tenant. First, when the tenant applied to live in the apartment, the property manager commented on her looks. The property manager then told the tenant that he would only hold the unit for the tenant if she kissed him. When the tenant picked up the keys to the apartment, the property manager reminded the tenant about the kiss, and the tenant kissed the property manager. Subsequently, when the tenant failed to pay the full amount of the monthly rent, the property manager offered to exchange sexual favors for a reduced rent. Ultimately, when the tenant ended the relationship with the property manager, she was evicted shortly thereafter for failing to timely pay the rent.

The tenant sued the property owner and the property manager for violations of the FHA and alleged that the sexual harassment constituted discrimination on the basis of sex. The trial court dismissed the case, finding that it was unclear whether the tenant’s claims of sexual harassment were viable under the FHA. However, the Eleventh Circuit Court of Appeals reversed the trial court’s dismissal; holding that the property owner’s and property manager’s sexual harassment in the form of creating hostile a housing environment and quid pro quo sexual harassment, were actionable.

What can property owners do to prevent sexual harassment from occurring between their tenants and property managers? For starters, property owners should vet their property managers and conduct a background check.  A property owner should exercise some level of vigilance over the property manager including keeping track of the amount of rent that is being collected to assure that the full amount (including late fees) is paid. Moreover, property owners should implement some level of manager training and a written sexual harassment policy and clearly convey that policy to the property manager and tenant(s).  While each of the foregoing recommendations would undoubtedly help in reducing the risk and likelihood of property manager misconduct, including harassment,  providing a clear line of communication between the property owner and the tenant would also have helped to possibly prevent the sexual harassment that occurred in the Fox case.