Some of you may recall HUD’s 2017 regulations indicating associations are responsible for intervening in neighbor v. neighbor disputes predicated on unlawful harassment (e.g., harassment arising from race, ethnicity, sexual expression, religion, etc.) In June 2021, DFEH (the California agency charged with implementing state and federal anti-discrimination laws), issued its “Harassment Prevention Guide.”
The Guide emphasizes the following points:
- Unlawful harassment is conduct “sufficiently severe or pervasive as to interfere with a person’s use or enjoyment” of a dwelling or housing-related services or facilities.
- Harassing behaviors include verbal harassment, physical harassment, and visual harassment, coercion, intimidation, threats. It can also include revealing private information about a person without their consent.
- Discriminatory harassment can occur either directly by an association, its managers or board members or indirectly, (e.g., by contractors hired by association).
- Victims of discriminatory harassment include not just owners, but residents, and persons invited to the property, including guests or contractors working for residents.
- A community association may have the power to correct and end discriminatory harassment under its CC&Rs. NOTE: A typical example of such power includes the nuisance prohibition found in nearly every set of CC&Rs, but occasionally CC&Rs also provide that any violation of state, federal and/or local law constitutes a violation of the CC&Rs, which provides further evidence that the association has the power to correct and end harassment.)
DFEH suggests that a housing provider such as a community association might consider pre-emptive action such as communicating that harassment is unacceptable within the community and training leaders of the community on how to investigate and deal with complaints of harassment.
Most community associations (and management companies) are not regularly trained in these issues. At a minimum, the board, manager, or person hired by the association for this purpose should conduct a prompt, thorough interview of the complainant, to obtain as much relevant information as possible. Certainly, the accused harasser should be given an opportunity to respond to the accusations as well. If the accused harasser is a board member, consideration should be given to forming an executive committee comprised of other directors to investigate the allegations or outsourcing the investigation if that is not an option. (NOTE: Put the association’s D&O and CGL insurance providers on notice of claims of harassment, at the earliest possible moment.)
The Guide provides further helpful and detailed suggestions on how the investigation is to be performed, discussing whether an investigation is confidential, how quickly the investigation needs to begin and finish, how the investigator may assess the credibility of the complainant, accused party, and witnesses, and how the investigator should weigh the evidence yielded by the investigation. See Harassment Prevention Guide, pages 9 and 10.
The Guide also discusses how an association or other housing provider should approach ending and correcting discriminatory harassment. Depending on the gravity of the behavior, the degree of enforcement (in mild cases, a letter explaining the harassment violates governing documents and, possibly, the law as well, whereas in severe cases, harsher approaches such as imposing fines, issuing cease and desist notices, and where the activity appears to be a criminal act as well, reference to law enforcement). (NOTE: The Guide does not answer one major question, which is whether the association is required to file an injunctive relief action to control the situation. This issue should, as a matter of good business judgment, be discussed with association legal counsel early on.)
For questions or more information on this topic, please contact us.