901 F.3d 856
7th Cir.2018Background
- Marsha Wetzel, an openly lesbian resident of Glen St. Andrew Living Community, experienced prolonged verbal and physical harassment by other residents (slurs, threats, physical assaults) over ~15 months.
- Wetzel repeatedly reported the abuse to St. Andrew management; managers largely dismissed her complaints and in some instances retaliated (restricted common-area access, moved her dining seat, stopped cleaning services, accused her falsely of smoking, woke and slapped her).
- Wetzel sued under the Fair Housing Act (FHA), asserting (1) a hostile-housing-environment claim based on sex/sexual-orientation discrimination and (2) a retaliation claim under 42 U.S.C. § 3617; state-law claims were also pled.
- Defendants moved to dismiss, arguing FHA liability requires the defendant itself to have discriminatory animus and that § 3604(b) does not cover post-acquisition harassment; the district court granted dismissal and declined supplemental jurisdiction over state claims.
- The Seventh Circuit reversed, holding the FHA can reach a housing provider that knows of tenant-on-tenant, sex-based harassment and is deliberately indifferent to it, and that retaliation claims under § 3617 need not allege discriminatory animus; the case was remanded and state claims reinstated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FHA creates liability for a housing provider who knows of tenant-on-tenant harassment based on a protected trait but does not act | Management's deliberate inaction after notice is actionable under the FHA | FHA imposes liability only when the defendant itself acted with discriminatory animus | Reversed dismissal: FHA covers housing providers who have actual notice of tenant-on-tenant harassment and are deliberately indifferent, creating direct liability for failure to take reasonable steps to stop it |
| Whether Wetzel's harassment was "severe or pervasive" enough to interfere with residency privileges | The repeated threats, slurs, assaults, and exclusion from services/facilities materially interfered with enjoyment of housing | Characterized incidents as neighborly squabbles among difficult seniors | Wetzel plausibly alleged severe/pervasive harassment (frequency, physical assaults, deprivation of contracted services) sufficient to survive dismissal |
| Whether § 3604(b) can support post-acquisition harassment claims | §3604(b) and §3617 protect provision of services/facilities and privileges tied to occupancy; post-acquisition harms fit within those terms | §3604(b) does not reach conduct occurring after acquisition | §3604(b) can cover post-acquisition discrimination in services/facilities and privileges of rental; §3617 independently covers interference claims post-acquisition |
| Whether a retaliation claim under §3617 requires pleading discriminatory animus | Retaliation protects persons for exercising FHA rights; intent to discriminate is not an element of retaliation | Retaliation requires discriminatory animus by the defendant | Rejected defendant's argument: retaliation claims under §3617 do not require an allegation of discriminatory animus; plaintiff stated a plausible retaliation claim |
Key Cases Cited
- Bloch v. Frischholz, 587 F.3d 771 (7th Cir. 2009) (FHA protections can extend post-acquisition; framework for post-sale claims)
- Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (sexual-orientation discrimination is sex discrimination for anti-discrimination statutes)
- Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (U.S. 1999) ( Title IX: funding recipients can be liable for deliberate indifference to known student-on-student sexual harassment)
- Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (U.S. 1998) (Title VII employer liability principles for harassment useful analog)
- Faragher v. City of Boca Raton, 524 U.S. 775 (U.S. 1998) (distinguishing employer liability and setting hostile-environment standards)
- Meritor Sav. Bank v. Vinson, 477 U.S. 57 (U.S. 1986) (hostile-environment sexual harassment recognized under anti-discrimination law)
- Halprin v. Prairie Single Family Homes of Dearborn Park Ass'n, 388 F.3d 327 (7th Cir. 2004) (limits on post-acquisition FHA claims; distinguished on facts)
- Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690 (9th Cir. 2009) (interpreting §3604(b) to reach services/facilities provided after acquisition)
- Meyer v. Holley, 537 U.S. 280 (U.S. 2003) (corporate vicarious liability under the FHA; limits on officer/owner liability)
- Curtis v. Loether, 415 U.S. 189 (U.S. 1974) (FHA creates a legal duty and private remedy for wrongs in housing)