The federal Housing and Urban Development Department (“HUD”), adopted regulations in September 2016 which for the first time prohibited sexual harassment within housing accommodations. “Housing accommodations” in this context includes homeowner associations. These regulations have thus far not received widespread attention, but in California this will change soon.
In August 2018 the California Fair Employment and Housing Council approved Fair Housing regulations, providing the first written enforcement guidelines to help associations comply and avoid exposure to state or private discrimination claims. The new state regulations will take effect on January 1 or April 1, 2019, after some further rule-making process, and will be found at California Code of Regulations 12000-12271.
The inaugural regulations do not address all Fair Housing issues but are informative regarding accommodation of disabilities and assistance animals, and also bring a new requirement by echoing the HUD regulations (as California must) by requiring housing providers to reasonably respond to sexual harassment against residents.
Sexual harassment was previously considered only as an employment issue, and its two varieties – unwanted sexual advances and hostile environment- have both long been illegal in the workplace.
Under the new regulations, associations must protect residents from unwanted advances not only from vendors or management, but also from other residents. If a resident complains against a neighbor, what should associations do, since they can’t relocate or evict residents? Kevin Kish, Director of the Department of Fair Employment and Housing, said “an HOA can’t be liable for failure to take an action it doesn’t have the power to take.” Under section 12010(c) a violation exists where the person knew or should have known of the discriminatory conduct and had the power to correct it.
Hostile environment claims normally evoke the notion of sexually charged banter, conduct or displays. However, HOAs may be unable to act if their rules do not ban such conduct or statements, and Civil Code 4710 protects display of non-commercial signs (even objectionable ones). Will HOAs be prosecuted for conduct they cannot stop? Director Kish stated, “that’s a separate question from whether we as the state could hold an individual liable for his or her own acts, regardless of what the HOA can or cannot do.” How do HOAs deal with “he said – she said” situations? Can associations ignore the complaint if the accused resident flatly denies it? Director Kish said “whether an HOA can ‘throw up its hands’ depends to some degree on the power it has to take action in a given scenario. In the case of a harassment allegation involving two homeowners, the actions available may be more limited, but there still may be available actions.”
Such actions might include asking the residents to avoid each other, or recommending Internal Dispute Resolution. Should the HOA after investigating still reasonably be unable to determine what happened, only then can the matter be considered unresolvable.
Some respected HOA attorneys have recommended HOAs adopt rules barring sexual harassment conduct. However, associations may want to avoid accepting this responsibility, as volunteers have insufficient resources to handle interpersonal behavior issues. Rather than regulating personal misconduct, perhaps the HOA’s effort is better spent educating residents on their rights under the Fair Housing regulations, and their protections from Director Kish’s DFEH.