According to an Appellate Division decision released last week, landlords who sexually harass their tenants--even those of the same sex--could get hit with substantial fines and penalties. In Matter of State Division of Human Rights v. Stoute, a property owner was allegedly interested in pursuing a sexual relationship with one of his male tenants and, when those efforts were rebuffed, created a "sexually hostile housing environment" for that occupant.
In this particular case, the owner allegedly:
- made "sexually offensive comments and gestures" to the tenant and his guests;
- advised the tenant's friends that he wished to have sexual intercourse with the tenant;
- "spied"on the tenant (through a curtained, ground-floor window) while the tenant was engaged in sexual activity;
- entered the tenant's apartment (and bedroom) without advance notice;
- photographed the tenant and his guests as they entered and exited the building;
- simultaneously exited and followed the tenant when the tenant would leave the building;
- threatened the tenant with "physical force;" and
- eavesdropped on the tenant's conversations.
After a hearing, at which the landlord did not participate, an Administrative Law Judge (ALJ) with the New York State Division of Human Rights (NYSDHR) found in the tenant's favor and awarded $7,500 in compensatory damages. On administrative appeal to the NYSDHR, the landlord later objected to the ALJ's findings and alleged that the tenant was a "flagrant exhibitionist," who refused to properly cover his ground-floor windows and who engaged in sexual activity in full view of passersby. The owner further asserted that his actions were in response to legitimate community and building-related complaints and security concerns, and that the tenant was the "epitome of dishonesty" who was attempting to extort monies from the owner.
The NYSDHR Commissioner was unpersuaded by these latter arguments and concluded that the record supported the ALJ's findings that the owner's conduct was "severe and pervasive" and adversely impacted the tenant's ability to use and enjoy his apartment. Since the state's Human Rights Law prohibits a building owner from engaging in discriminatory housing-related acts, the Commissioner determined that same-sex harassment comprised a violation of that statute. And, as a result of the tenant's "mental anguish," the Commissioner upped the compensatory-damage award to $10,000 and further directed that the landlord to "cease and desist" from engaging in such conduct in the future.
When the landlord failed to pay the sum awarded by the agency, a special proceeding was commenced in the Kings County Supreme Court to enforce the award. Upon transfer of the case to the Appellate Division, Second Department, the appellate court ruled in the tenant's favor since all the requisite elements of a "hostile housing environment" had been demonstrated. As the court observed:
Here, substantial evidence supports the Division's determination that [landlord] sexually harassed the complainant, and in doing so violated the Human Rights Law. The Division relies on the hostile housing environment theory, and the record supports its determination that [landlord] created such an environment with respect to [tenant].
To prevail on a hostile housing environment theory, it must be shown that (1) the complainant is a member of a protected group, (2) he or she was subjected to unwelcome and extensive sexual harassment, in the form of sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, which were not solicited or desired by the complainant, and which were viewed as undesirable or offensive, (3) such harassment was based on the complainant's sex, (4) such harassment makes affected a term, condition, or privilege of housing, and (5) if vicarious liability is claimed, the complainant must show that the owner knew or should have known about the harassment and failed to remedy the situation promptly....
Although the AD conceded that this was a case of "first impression"--in that it was the first time a sexual harassment remedy had been applied to the housing context--the appellate court did not believe that the case's uniqueness foreclosed a comparison to other awards in other kinds of cases considered by the agency. The court concluded that the $10,000 compensatory-damage award was well within the range of prior decisions and, in the absence of a punitive or punishment component, "entirely proper" under the circumstances.
Now how hostile was that?
For a copy of the Appellate Division's decision in Matter of State Division of Human Rights v. Stoute, please click on the following link: http://www.nycourts.gov/reporter/3dseries/2006/2006_08999.htm