LOHIER, Circuit Judge:
BACKGROUND
1. Facts
The allegations in Francis's complaint, which we assume to be true, see Morales v. City of New York,
The specific allegations are as follows. See Joint App'x 11-17. In February 2012 Francis heard Endres say "Jews, fucking Jews," while standing in front of their apartments.
From the start of Endres's several-month campaign of harassment, Francis, "fear[ing] for his personal safety," contacted the police and the KPM Defendants to complain. His first call to the police on March 11 prompted Suffolk County Police Hate Crimes Unit officers to visit the KPM apartment complex, interview witnesses, and warn Endres to stop threatening Francis with racial epithets. That day Francis also filed a police report, and a police officer told the KPM Defendants about Endres's conduct. The KPM Defendants did nothing.
In May 2012 Francis called the police аgain and filed another police report. This time, by letter dated May 23, 2012, Francis notified the KPM Defendants directly about Endres's racist conduct between March and May 2012. The letter "report[ed] ... Endres for racial harassment, [and] for making racial slurs directly to [Francis]." It also provided contact information for the Suffolk County police officers responsible for investigating Endres. Again, the KPM Defendants failed to do anything at all, even as little as respond to Francis's letter.
Endres's conduct persisted. His escalating racial threats to Francis finally prodded the Suffolk County Police Department to arrest Endres for aggravated harassment in violation of New York Penal Law § 240.30. On August 10, 2012, Francis sent a second letter. It informed the KPM Defendants that Endres continued to direct racial slurs at Francis and "anti-semitic, derogatory slurs against Jewish people." It also disclosed that Endres had recently been arrested for harassment.
Endres's attempt to photograph Francis's apartment on September 2 was apparently the last straw. Francis contacted the police and the following day sent the KPM Defendants a third and final letter complaining about Endres's continued harassment. After receiving the letter, KPM advised
The complaint alleges that the KPM Defendants not only failed to investigate or attempt to resolve Francis's complaints of racial abuse but, to the contrary, allowed Endres to live at the complex through January 2013 without reprisal. That month, Endres's lease expired and he moved out of his apartment. A few months later, in April 2013, Endres pleaded guilty tо harassment in violation of New York Penal Law § 240.26(1). That same month, the State court entered an order of protection prohibiting him from contacting Francis.
2. Procedural History
In June 2014 Francis sued the KPM Defendants and Endres, claiming primarily that they violated §§ 3604 and 3617 of the FHA,
Following oral argument, we solicited HUD's views relating to a landlord's potential liability for a tenant's racial harassment of another tenant under its regulations. In response, HUD, as amicus curiae, points us to its rules designed to clarify the law in this area and urges us to recognize certain limited claims against landlords arising out of tenant-on-tenant racial harassment.
DISCUSSION
We focus on Francis's federal claims arising under §§ 3604 and 3617 of the FHA and under the Civil Rights Act of 1866, as well as his New York claims arising under NYSHRL § 296 and for negligent infliction of emotional distress. We review the District Court's dismissal of these claims de novo, accepting the factual allegations in the complaint as true. See Biro v. Condé Nast,
1. Post-Acquisition Claims Under the Fair Housing Act
We start with the statutory text. As relevant to this appeal, § 3604(b) of the Act makes it unlawful "[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a
We first address Francis's claims under §§ 3604(b) and 3617 with the text and those principles in mind. As a threshold matter, we consider whether § 3604 prohibits discrimination occurring after a plaintiff buys or rents housing. We hold that so-called "post-acquisition" claims are cognizable under § 3604.
Our view is rooted first in the language of the provision itself, which prohibits discrimination in the "terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith."
In arriving at this interpretation, we note how closely § 3604(b) 's broad language tracks the language of Title VII, which, together with the FHA, forms part of the backbone of the coordinated congressional "scheme of federal civil rights laws enacted to end discrimination." Huntington Branch, N.A.A.C.P. v. Town of Huntington,
In recognizing post-acquisition hostile housing environment claims under the FHA, two of our sister circuits have likewise cited the linguistic overlap between Title VII and § 3604(b). See DiCenso v. Cisneros,
It is telling that on the issue of whether the FHA prohibits any type of post-acquisition discrimination, every other circuit faced with the issue has acknowledged that § 3604(b) at least prohibits "discrimination relating to ... actual or constructive eviction," which is necessarily post-acquisition. Cox v. City of Dallas,
The only division, if one exists, relates to the scope or degree of the provision's reach. To answer that question we turn to § 3617, which, again, makes it "unlawful to coerce, intimidаte, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of
We also note that HUD's regulations have for thirty years clearly contemplated claims based on post-acquisition conduct, consistent with our interpretation of §§ 3604 and 3617. In 1989, for example, HUD promulgated regulations that prohibited "[f]ailing or delaying maintenance or repairs of sale or rental dwellings because of race,"
Finally, in our view, contrary interpretations of §§ 3604(b) and 3617 would contravene Congress's intent to root out discrimination in housing and to "replace the ghettos [with] truly integrated and balanced living patterns." Trafficante,
For these reasons, we conclude that the FHA reaches conduct that, as here, "would constitute discrimination in the enjoyment of residence in a dwelling or in the provision of services associated with that dwelling" after acquisition.
2. The HUD Regulations and Tenant-on-Tenant Racial Harassment
Having concluded that the FHA encompasses post-acquisition claims, we next consider whether a landlord may ever be liable under the FHA for intentionally failing to address tenant-on-tenant racial discrimination.
The KPM Defendants appear to argue that landlords are not liable under the FHA even for such intentional failures. But as the Seventh Circuit has recognized, the text of § 3617, which forbids "interfer[ence]" with a person's "exercise or enjoyment of" his or her rights under the FHA, encompasses landlord liability for a tenant's racially hostile conduct in some circumstances. See Wetzel,
Our dissenting colleague observes, see Dissenting Op., post, at 134-35, 137-38, that the text of the FHA nowhere explicitly endorses landlord liability for tenant-on-tenant harassment. True, but we have never required every last detail of a legislative scheme to be spelled out in a statute itself-especially a civil rights statute. After all, the FHA also makes no explicit reference to liability for actual or constructive eviction, or for landlord-on-tenant intentional harassment, even though both forms of liability are widely recognized. See Wetzel,
The Rule, HUD's other implementing regulations for §§ 3604(b) and 3617, and the views expressed in its amicus brief only reinforce our textual interpretation, reflect the Act's broad scope and purpose,
HUD's regulations, as clarified by the Rule, specifically provide that a landlord may be liable under the FHA for "[f]ailing to take prompt action to correct and end a discriminatory housing practice by a third-party" tenant where the landlord "knew or should have known of the discriminatory conduct and had the power to correct it."
The KPM Defendants conjure a parade of horribles that will result from the Rule, most prominently that the FHA will become a "vehicle for the resolution of neighborhood disputes." Appellee's Br. 6. Their description is overblown. As mentioned above, and as relevant here, the Rule governs a landlord's obligation only in a discrete subset of disputes that involve discrimination "sufficiently severe or pervasive as to interfere with," among other things, the "use or enjoyment of a dwelling."
The KPM Defendants also argue that HUD's regulations rest on a fundamental misunderstanding of the landlord-tenant relationship. Unlike employer-employee relationships, they contend, no agency relationship exists between landlords and tenants, and landlords exert far less control over tenants than do employers over employees. We disagree with their argument. In devising
The KPM Defendants also argue that HUD's regulations fail to consider a landlord's variable levels of control over tenants. But
In determining the scope of a landlord's power, courts will of course consider that housing providers ordinarily have a range of mechanisms at their disposal to correct discriminatory tenant-on-tenant harassment, such as "issuing and enforcing notices to quit, issuing threats of eviction and, if necessary, enforcing evictions," all of which are "powerful tools" that may be "available to a housing provider to control or remedy a tenant's illegal [discriminatory] conduct." Id.; see Wetzel,
The KPM Defendants and our dissenting colleague further submit that
In this case, the Rule promulgated by HUD purports on its face to be an interpretive rule. It "codifies HUD's longstanding view that a property owner ... may be held liable for failing to take corrective action within its power in response to tenant-on-tenant harassment of which the owner knew or should have known."
We accept, too, HUD's characterization of its own regulation as interpretive, as the Rule expresses the agency's view that the claim at issue in this casе has long been cognizable under the FHA. See Huberman v. Perales,
Lastly, in urging that we affirm the District Court's dismissal of Francis's FHA claims, the KPM Defendants argue that even if a hostile housing environment
Second, the KPM Defendants' argument misunderstands the difference between the harassing acts of a landlord or its agent and the harassing acts of a third party over which the landlord has a real measure of control. Take, for example, the somewhat analogous context involving a hostile work environment claim under Title VII. Faced with such a claim, we have not required a showing of direct intentional discrimination by the employer before imposing liability. Instead, we have premised an employer's liability on the employer's actual or constructive knowledge of the non-supervisory employee's harassment and the employer's subsequent failure to act. See Duch v. Jakubek,
Finally, even assuming that such a requirement exists, we think that Francis's complaint, viewed in the light most favorable to Francis, plausibly and adequately alleges that the KPM Defendants engaged in intentional racial discrimination. Specifically, it alleges that the KPM Defendants "discriminat[ed] against [Francis] by tolerating and/or facilitating a hostile environment," even though the defendants had authority to "counsel, discipline, or evict [Endres] due to his continued harassment of [Francis]," and also had "intervened against other tenants at Kings Park Manor regarding non-race-related violations of their leases or of the law." Joint App'x 19-20. In other words, Francis has alleged that the KPM Defendants had actual knowledge of Endres's criminal racial harassment of Francis but, because it involved race, intentionally allowed it to continue even though they had the power to end it. See Wetzel,
For these reasons, we vacate the District Court's dismissal of Francis's FHA claims and remand for further proceedings relating to those claims.
3. The Civil Rights Act of 1866
The District Court dismissed Francis's claims under the Civil Rights Act of 1866,
4. State Law Claims
Finally, Francis challenges the District Court's dismissal of his claims under NYSHRL §§ 296(5) and 296(6), as well as its dismissal of his claim for negligent infliction of emotional distress under New York State law. We address each challenge in turn.
a. New York Executive Law
Section 296(5) of the NYSHRL, like the FHA, prohibits housing discrimination and provides in relevant part: "It shall be an unlawful discriminatory practice for the owner, lessee, sub-lessee, assignee, or managing agent ... [t]o discriminate against any person because of race ... in the terms, conditions or privileges of the sale, rental or lease of any such housing accommodation or in the furnishing of facilities or services in connection therewith."
Because we conclude that the FHA must proceed rather than fail, we vacate the District Court's dismissal of Francis's claims under § 296 and remand for further proceedings.
b. Negligent Infliction of Emotional Distress
The District Court dismissed Francis's claim on the ground that a landlord owes no common law duty of care to prevent one tenant from harassing another tenant. But as we explained above, the KPM Defendants may have had a duty arising from the FHA itself. Nevertheless, we affirm for the separate reason that any injury for negligent infliction of emotional distress "is сompensable only when [it is] a direct, rather than a consequential, result of the breach" of a duty that a defendant owes to a plaintiff.
CONCLUSION
We have considered the parties' remaining arguments and conclude that they are either without merit or, as with the KPM Defendants' arguments based on the First, Fourth, and Fourteenth Amendments, forfeited. For the reasons set forth above, we VACATE the District Court's dismissal of Francis's claims under the FHA, §§ 1981 and 1982, and NYSHRL § 296, and REMAND for further proceedings consistent with this opinion. We AFFIRM the District Court's judgment in all other respects.
Debra Ann Livingston, Circuit Judge, dissenting:
This complaint involves the resident of a New York apartment complex who allegedly subjected his neighbor to racially motivated harassment on about a dozen occasions before moving away when the landlord declined to renew his lease. But the case is not about the heinous conduct of horrible neighbors, nor whether to condone it. Instead, the question here is whether this Court properly construes Title VIII of the Civil Rights Act of 1968, referred to as the Fair Housing Act (the "FHA"), to impose a duty on landlords to monitor and remediate the behavior of one's neighbors, on pain of incurring liability for damages and litigation costs, including attorney's fees. The majority does not properly construe the FHA to impose such third-party liability for the conduct of neighbors. Instead, it steers the FHA
The majority justifies its novel and expansive theory of landlord liability for tenant-on-tenant harassment by invoking the "broad language" of the FHA. But I can find no support for the majority's decision in the FHA's text, our precedent, or the background tort principles that informed Congress at the time the FHA was enacted. Accordingly, I respectfully dissent.
I
1. Textual Analysis
Although the trajectory of its analysis somewhat obscures the breadth of its holding, the majority today tackles the question whether the FHA imposes liability on landlords for "failing to take prompt action to address a racially hostile housing environment created by one tenant targeting another," regardless of the landlord's lack of discriminatory intent. Maj. Op. at 114. In concluding that the FHA does impose such liability, the majority purports to "start with the statutory text." Maj. Op. at 116. But make no mistake. This is textual analysis in name only, performed en route to fashioning a new cause of action from a fundamentally flawed analogy to Title VII and from "great," Maj. Op. at 120-21, if unjustified, deference to pronouncements by the Department of Housing and Urban Development ("HUD") in connection with a rule that HUD promulgated after this litigation began.
Two provisions of the FHA are at issue here. Section 3604(b) makes it unlawful "to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of servicеs or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin."
Indeed, even to reach the question before us today, the majority must first resolve an antecedent question long left unanswered in this Circuit: namely, whether § 3604(b) reaches any conduct occurring after the initial sale or rental of a residence, let alone a landlord's alleged failure to prevent or remediate the conduct of tenants commencing years after a plaintiff's lease was signed. See Francis ,
Again at the start, and as Judge Posner noted some years ago when analyzing the provisions at issue here, "[t]he Fair Housing Act contains no hint either in its language or its legislative history of a concern with anything but access to housing." Halprin v. Prairie Single Family Homes of Dearborn Park Ass'n ,
The majority reassures that "there is no circuit split on whether § 3604 reaches post-acquisition conduct." Maj. Op. at 118. In doing so, however, the majority obfuscates the deep division that does exist as to "the scope or degree of the provision's [post-acquisition] reach." Maj. Op. at 118 (emphasis added). Judge Posner himself allowed that § 3604(b)"might be stretched far enough [in the post-acquisition context] to reach a case of 'constructive eviction.' " Halprin ,
By way of reminder, § 3604(b) makes it unlawful to discriminate "in the terms, conditions, or privileges of sale or rental of a dwelling." As the majority notes, this language partially "tracks the language of Title VII." Maj. Op. at 117. But unlike Title VII, which provides a cause of action against specified employers who discriminate, the FHA does not identify a class of potential defendants who can be charged-so that not only landlords, but also public housing authorities, cooperative boards, block associations, real estate agents, or, indeed, anyone , is potentially liable.
With this limitless list of potential defendants in mind, the full import of the majority's approach becomes clear. Agreeing with the Ninth Circuit, the majority construes the phrase "privileges of sale or rental" in § 3604(b) to encompass claims regarding any " 'services or facilities perceived to be wanting after the owner or tenant has acquired possession of the dwelling' "-regardless whether such services or facilities have any connection with the rental or sale. Maj. Op. at 117 (quoting Modesto ,
But § 3604(b) simply does not have the vague and expansive scope that the majority's (and the Ninth Circuit's) interpretation affords it. The FHA expressly defines "to rent" as "to lease, to sublease, to let and otherwise to grant for a consideration the right to occupy the premises not owned by the occupant."
To be clear, § 3604(b) prohibits discrimination in the "terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith ...." (emphasis added). But this doesn't change the analysis. The Fifth Circuit has recognized as much, holding that the prohibition on discrimination in "the provision of services or facilities in connection therewith" applies specifically to "the sale or rental of [the] dwelling," rather than to the dwelling generally. Cox v. City of Dallas ,
The majority fails to recognize that the same limiting principle holds true for the word "privileges" in § 3604(b) 's prohibition against discrimination in the "terms, conditions, or privileges of sale or rental." The majority "agree[s] with the analysis of the Ninth Circuit" that "privileges" connotes "continuing rights," so as to encompass post-acquisition claims "regarding services
The majority evades this textually required connection for a simple reason: the complaint here contains not a word to suggest that Kings Park Manor, Inc., the landlord in this case, undertook any obligation in its rental arrangement with Donahue Francis, the tenant, for monitoring the conduct of other tenants and remediating their behavior. This is not a usual "term, condition, or privilege" of a lease. But after today, that no longer matters. The majority joins the Ninth Circuit in eliminating any required connection between the "terms, conditions, or privileges of sale or rental" and the sale or rental itself, placing this Court on the wrong side of the significant circuit split as to § 3604 's post-acquisition reach.
Nor do the majority's textual problems end with § 3604(b). Turning our attention to § 3617, I gather that it is the majority's position that a landlord's failure to redress tenant-on-tenant harassment qualifies as an "interference" with the enjoyment of a "right ... protected by" § 3604(b).
Finally, I disagree with the majority's evisceration of any discriminatory intent requirement from these provisions of the FHA. See Maj. Op. at 124 ("Insofar as the District Court required Francis to allege that the KPM Defendants' conduct was the result of direct, intentional racial discrimination, we conclude that this was error.").
The majority decides to the contrary, but it can do so only by ignoring this clear statutory text and all or part of past decisions of this Court and others. See, e.g. , Austin v. Town of Farmington ,
Perhaps recognizing the precariousness of that position, the majority asserts, finally, that even assuming a requirement of intentional discrimination, Francis has, in any event, adequately alleged that the KPM Defendants engaged in intentional racial discrimination. Maj. Op. at 124-25.
In essence, the majority's statutory analysis is not textuаl at all, but floats on the statute's "broad and inclusive compass," Maj. Op. at 117 (quoting City of Edmonds v. Oxford House,
2. Precedent
Nor is support for the majority's newfound theory of liability to be found in the precedent of our Circuit and our sister circuits. If the claim at issue here were really discernible from the statute's text, we would expect a substantial body of decisions grappling with the question of landlord liability for tenant-on-tenant harassment. See Antonin Scalia & Brian A. Garner, Reading Law: The Interpretation of Legal Texts 80-81 (2012) ("New rights
Previously, the closest cases on point recognized "hostile housing environment claims." Under this theory of liability, plaintiffs have been permitted to move forward with claims under the FHA where a landlord's "offensive behavior unreasonably interfere[d] with use and enjoyment of the premises." Honce v. Vigil ,
As precedent for imposing an affirmative obligation on landlords to redress tenant-on-tenant harassment, the majority and HUD point us to Neudecker v. Boisclair Corp. ,
The majority also points to the Seventh Circuit's recent opinion in Wetzel , but that case, involving the alleged harassment on protected grounds of a senior citizen living in a senior facility, is likewise distinguishable. To be clear, Wetzel does hold that the FHA "creates liability against a landlord that has actual notice of tenant-on-tenant harassment based on a protected status, yet chooses not to take any reasonable steps within its control to stop that harassment." Wetzel ,
To the extent that Wetzel reads more broadly to align with the majority's opinion here, it is similarly unpersuasive. Wetzel acknowledges that the FHA "does not address" the question of landlord liability for third-party harassment, and that the statute "does not spell out a test" for liability under these circumstances. Id . at 863. These concessions support my view: the statute does not "address" a distinct duty on the part of the landlord to redress harassment because the statute does not impose one. And it would be peculiar for the statute to spell out a "test" for a theory of liability found nowhere within its text. But even assuming arguendo that Wetzel was correctly decided, it is sufficiently distinguishable from the present case as to provide little, if any, support for the majority's conclusion that an FHA claim has been adequately alleged here.
3. The Title VII Analogy and the HUD Rule
At bottom, the majority's conclusion today rests on neither the FHA's text nor its precedent, but on drawing an analogy to Title VII and its "hostile work environment" cases, as recently endorsed by HUD. To prevail on a hostile work еnvironment claim under Title VII, a plaintiff need not demonstrate that the employer himself engaged in the alleged harassment nor offer evidence of discriminatory intent on the employer's part. Instead, a negligent employer can be liable "when a co-worker harasses the plaintiff." Vance v. Ball State Univ. ,
The majority "distill[s] from the [HUD] Rule"-not, I will note, the FHA-three elements a plaintiff must prove to establish a housing provider's liability for third-party harassment: " '(1) [t]he third-party created a hostile environment for the plaintiff ...; (2) the housing provider knew or should have known about the conduct creating the hostile environment;' and (3) notwithstanding its obligation under the FHA[,] ... 'the housing provider failed to take prompt action to correct and end the harassment while having the power to do so.' " Maj. Op. at 121 (quoting HUD Rule,
Far from bolstering the majority's analysis, however, the analogy to Title VII highlights the glaring problems inherent in its theory of FHA liability. To be sure, Title VII can be relevant to the interpretation
Given that "strict reliance on Title VII case law is not always appropriate," the majority would do well to consider why the analogy it draws between the employer-employee and landlord-tenant relationships makes no sense in the circumstances of this case. First, as the court below aptly noted, there are "well-known legal distinctions between the employer-employee relationship and the landlord-tenant relationship-including, that an employee is considered an agent of the employer while the tenant is not considered an agent of the landlord." Francis ,
Granted, the absence of a principal-agent relationship in the landlord-tenant context may not be dispositive on the issue whether a Title VII analogy can be drawn. Though less common, an employer can sometimes be liable for failing to address a hostile work environment that is created by a non-agent (a non-employee). See, e.g. , Summa v. Hofstra Univ. ,
Employers simply exert far more control over not only their employees, but also the entire workplace environment, than do landlords over their tenants and the residences those tenants quite literally
Likewise, the remedial steps we call upon employers to take in the employment setting have no analogue in the housing setting. In the Title VII context, we assess whether an employer "knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action." Duch,
As this laundry list of corrective actions indicates, just as landlords do not have the same capacity as employers to monitor their tenants, neither do they ordinarily have similar tools at their disposal to investigate and remediate misconduct. A landlord cannot temporarily evict a tenant or force all tenants to undergo harassment training and provide information about each other's behavior. And while an employer can transfer a problematic employee, a landlord cannot move tenants around different building units in similar fashion. Furthermore, even if landlords could develop a roster of such intermediate steps and penalties, we might question whеther Congress sought to import such a system into the housing context, without a word as to the due process principles that such a system might implicate.
The majority ignores these concerns by asserting that landlords control residential complexes, just as employers control workplaces,
4. Background Tort Principles and the FHA
The majority fundamentally errs in its assessment of the present cause of action by failing to consider the Supreme Court's instruction that "an action brought for compensation by a victim of housing discrimination is, in effect, a tort action." Meyer ,
Even if we were to import the Title VII "hostile work environment" standard into the context of the FHA in some circumstances, this common law background suggests the need for a far more careful delineation of the situations in which a landlord еxercises sufficient control over tenant behavior to be directly liable for failing to redress that behavior. Perhaps the degree of control exercised by a landlord in cases such as Wetzel , where the landlord was responsible for the provision of daily meals and the maintenance of community spaces in a senior living facility, differs in kind from the typical case. Perhaps not. The allegations in the present complaint, however, at least as they relate to the landlord-tenant relationship, are typical in all respects. And as New York courts have confirmed, the power to evict is too blunt and unwieldy an instrument to support the conclusion that landlords are in a position to prevent one tenant's harassment of another, so that liability for the failure to do so may properly be imposed.
* * *
The instant complaint provides a good example of the difficult questions that go unaddressed in the majority's rush to recognize this new cause of action. According to its allegations, the plaintiff, having already notified the police of his neighbor's outrageous conduct, did not notify the management company of the harassment until almost three months after the first incident occurred and two months after the plaintiff renewed his lease. Moreover, he did not request the company's assistance even at that time. Nor does the complaint suggest that the police investigation had been discontinued or was ineffective. So when, precisely, did the landlord stand in breach of a duty to act, even assuming such a duty existed? Notably, the management company declined to renew the harassing tenant's lease when it came up for renewal in the aftermath of his bad behаvior, which by that point had resulted in his arrest. Does failure to renew a lease constitute "prompt" remedial action? Courts will be grappling with such questions for years to come.
The majority dismisses such concerns offhand as a "parade of horribles." Maj. Op. at 121-22. Make no mistake, however: these issues will be unavoidable for those whom this decision affects. Judge Posner
II
Having applied the "ordinary tools of statutory construction," City of Arlington v. F.C.C .,
The Seventh Circuit declined to rely on the HUD Rule in Wetzel , noting that "there are salient differences between Title VII and the FHA" and that "more analysis than HUD was able to offer" was needed to support HUD's position. Wetzel ,
First, even assuming arguendo the majority's erroneous premise that the HUD Rule is "interpretive," Maj. Op. at 122-23, the Rule carries little to no persuasive force. The "convenience [of interpretive rules] comes at a price: Interpretive rules do not have the force and effect of law and are not accorded that weight in the adjudicatory
The HUD Rule scores poorly on all these metrics. For the reasons already explained at length, the Rule misinterprets the FHA's text, finds no support in precedent, and relies on a flawed analogy to Title VII. The Supreme Court has already rejected similarly superficial reasoning by analogy in the Title VII context, denying Skidmore deference to an interpretation by the Equal Employment Opportunity Commission that merely referenced the case law surrounding other antidiscrimination statutes and "fail[ed] to address the specific provisions of [Title VII's] statutory scheme." Nassar ,
But the majority's reliance on the HUD Rule is also impermissible for an entirely different reason: the Rule is legislative , and so cannot have the retroactive effect on this case that the majority affords it. Interpretive rules "do not create rights, but merely clarify an existing statute or regulation," while "legislative rules are those that create new law, rights, or duties, in what amounts to a legislative act." Sweet v. Sheahan ,
Giving retroactive effect to a legislative rule "presents problems of unfаirness because it can deprive [parties] of legitimate expectations and upset settled transactions." Sweet ,
Lacking any persuasive agency guidance, "[i]t is instead our task to determine the correct reading" of the FHA. King v. Burwell , --- U.S. ----,
* * *
Finally, I dissent as well from the vacatur of the district court's dismissal of Francis's claims pursuant to §§ 1981 and 1982. In a single paragraph, the majority contends that a plaintiff need only allege that a defendant was "deliberate[ly] indifferen[t]" to racial discrimination in order to state the intent element of claims pursuant to these provisions. Maj. Op. at 125-26. Even assuming arguendo the majority's questionable conclusion that a deliberate indifference standard governs Francis's §§ 1981 and 1982 claims, I would hold that Francis has failed plausibly to allege his landlord's deliberate indifference. See Gant ex rel. Gant v. Wallingford Bd. of Educ. ,
The Supreme Court has never held, as the majority purports to do today, that allegations of deliberate indifference are sufficient to make out the intent element of §§ 1981 and 1982 claims. Moreover, before today, this Court had affirmed the propriety of the "deliberate indifference" standard in the § 1981 context only, specifically in the school setting. See Gant ,
Notes
Francis entered the lease agreement pursuant to the Housing Choice Voucher Program, 42 U.S.C. § 1437f(o), commonly known as the "Section 8" public housing program.
Although Francis is apparently not Jewish, he alleges that some of his neighbors complained about Endres's anti-Semitic rants in the KPM complex.
For a brief history of this odious word, see Randall Kennedy, Nigger: The Strange Career of a Troublesome Word (2002).
Because Francis's complaint, the briefing presented to this Court, and the majority of the cases relied on in this opinion do so, we cite to the current codified version of the FHA contained in Title 42 of the United States Code, see
Our dissenting colleague agrees that the FHA has "some post-acquisition application." Dissenting Op., post, at 117.
Some scholarship on the subject confirms that § 3604(b) and § 3617 encompass post-acquisition claims. See generally Robert G. Schwemm, Neighbor-on-Neighbor Harassment: Does the Fair Housing Act Make a Federal Case out of It?,
Under the scheme described in Skidmore v. Swift & Co.,
The standard is also consistent with the Equal Employment Opportunity Commission's regulations under Title VII, which state that an employer may be liable for failing to address a hostile work environment that is created by a non-employee. See
We view it as uncontroversial that under some circumstances a landlord may be liable to a tenant for conditions occasioned by a third party that render the home uninhabitable or otherwise interfere with the tenant's permissible use of the leased property. See Wetzel,
Whether the KPM Defendants had the "power to act" to take corrective action in this case (arising from, say, their authority to evict or some other authority) as a matter of federal common law or of State law is a question we leave to the District Court to consider on remand. But two further observations are appropriate. First, New York law appears to allow that a landlord may have a duty to prevent tenant-on-tenant attacks if "the landlord had ability or a reasonable opportunity to control [the aggressor]" and "the harm complained of was foreseeable." Firpi v. NYCHA,
In other words, even if the Rule were retroactive, that would not present a problem here because we are applying the FHA itself (using the Rule as an aid in interpreting the FHA), not the Rule, to assess Francis's allegations in this case.
The KPM Defendants also argue that even if the Rule applies here, Francis has failed to establish that the alleged incidents between him and Endres were because of his race. Viewing the allegations in the complaint in the light most favorable to Francis, it is hard for us to see how this could be so, but in any event we leave that question to be resolved by the District Court on remand with the benefit of both HUD's Rule and this opinion.
Although we have not previously addressed the issue, we see no reason to distinguish § 1981 from § 1982 in this regard. We therefore hold that a defendant's deliberate indifference to racial discrimination can also violate § 1982 under similar circumstances.
Under New York law, a claim for negligent infliction of emotional distress requires at least a causal connection between the conduct and the injury. See Mortise v. United States,
Notably, HUD's new rule, Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act,
The Fifth Circuit cited the example of one such claim in Cox v. City of Dallas ,
Judge Higginbotham, the author of Cox , alsо noted that the approach to § 3604(b) 's interpretation endorsed by the majority today would appear to have the unlikely effect of affording a § 3604(b) cause of action for alleged discrimination by any party, so long as it could be said to "impact[ ] property values." Cox ,
By way of reminder, § 3617 provides in relevant part that it is unlawful "to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section ... 3604."
See also Eureka V LLC v. Town of Ridgefield , No. 3:02CV00356 (DJS),
HUD purports to rely on ICP itself to support its argument that "[a] plaintiff does not need to prove a landlord's discriminatory intent or motive to establish liability under the FHA for failing to intervene in tenant-on-tenant racial harassment." HUD Amicus Br. 14-15. But the majority wisely avoids HUD's argument to this effect because ICP instead demands that circuits reevaluate their jurisprudence cognizing disparate impact claims under the FHA. ICP holds that § 3604(a) (not (b)) permits disparate impact claims. Notably, however, the Court based this conclusion on the "otherwise make unavailable" language of that subsection-language "of central importance" not to be found in §§ 3604(b) and 3617. ICP ,
Thus, as to the preceding paragraphs, even if the majority were correct that disparate impact claims are available under §§ 3604(b) and 3617, this would still not save Francis's suit because he brings a disparate treatment claim, not one of disparate impact. See ICP ,
While at least one district court decision, in more recent years, can be read to support such a claim, see Fahnbulleh v. GFZ Realty, LLC ,
This observation also applies to the Seventh Circuit's analogy between Title IX (governing discrimination in educational environments) and the FHA. See Wetzel ,
There are other potential common law doctrines relevant to a landlord's responsibility for the behavior of third parties, but those sound in contract and property law rather than tort, and generally involve remedies like rent abatement rather than compensatory damages. See, e.g., Park West Mgmt. Corp. v. Mitchell ,
To support its contrary position, the majority cites Firpi v. N.Y.C. Hous. Auth. ,
(a) Direct liability.
(1) A person is directly liable for:
(i) The person's own conduct that results in a discriminatory housing practice.
(ii) Failing to take prompt action to correct and end a discriminatory housing practice by that person's employee or agent, where the person knew or should have known of the discriminatory conduct.
(iii) Failing to take prompt action to correct and end a discriminatory housing practice by a third-party, where the person knew or should have known of the discriminatory conduct and had the power to correct it. The power to take prompt action to correct and end a discriminatory housing practice by a third-party depends upon the extent of the person's control or any other legal responsibility the person may have with respect to the conduct of such third-party.
So, too, for HUD's amicus brief, even applying this Circuit's precedent, which extends Skidmore deference to an agency's interpretation of a statute set forth during litigation. See SEC v. Rosenthal ,