In This Issue

• Racial Harassment by Tenants
• WARN Layoff Notices – Another Funding Nightmare
• Service Animals and No-Pets Policies
• Section 8 Voucher Termination

Racial Harassment by Tenants

Lawrence F. Feheley

What is a PHA's obligation when one tenant family racially harasses another tenant family? According to the Court of Appeals for Summit County, in a 2-1 split decision, the PHA has a duty to stop the conduct. In so ruling, the Court created, for the first time in Ohio, a legal cause of action for a "hostile housing environment." Ohio Civil Rights Commission v. Akron Metropolitan Housing Authority, 2006-Ohio-6967 (Sum. Co. 2006).

In this case, a black woman and her two sons had heated confrontations with a white family who lived by them in property owned by the Housing Authority. The confrontations included swearing, racial epithets, and overt threats of violence toward the black family. The lease signed by the tenants provided that tenants could not disturb their neighbors' enjoyment of the premises, and that tenants could not engage in illegal activity or conduct that "impaired the social environment of the development." Despite the family's complaints, the Authority did not investigate or take any steps to resolve the harassing conduct. The family eventually sued, asserting claims under the Ohio and Federal Fair Housing Acts that the Authority tolerated the tenant-on-tenant racial harassment.

The appeals court agreed that a cause of action exists against a landlord for a hostile housing environment. The existence of the claim, explained the court, is not the racist conduct by the tenant, but is instead the landlord's toleration of the racist acts, which interferes with the harassed tenant's right to enjoyment of the lease. The court analogized the claim for a hostile living environment to co-worker harassment in the workplace. In reaching its conclusion, the court observed:

"After reviewing the record, federal case law, and Ohio case law regarding discrimination in the workplace, this Court finds that the trial court erred in not recognizing a cause of action for hostile living environment in this case. This is not a case of harassment of a neighbor by a neighbor where each neighbor owns his or her own property. The property at issue in this case is a public housing development owned and operated by AMHA. AMHA has control over who is allowed to be a tenant in their facilities and has the authority to evict anyone who does not comply with the terms of the lease they enter into with AMHA."

As a result of this ruling, PHAs in Ohio have a duty to investigate and immediately remedy severe or pervasive tenant harassment, which is based on a legally protected characteristic, where the PHA knows, or should know, the harassment exists in its communities.

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WARN Layoff Notices – Another Funding Nightmare

The federal WARN Act, 29 U.S.C. §2102(a), requires employers to provide 60 days' advance notice to employees in the event of a covered plant closing or mass layoff. A "mass layoff" is defined in the law as a loss of employment for 50 or more employees, where they constitute "at least 33 percent of the employees" at a "single site of employment." This definition was a critical issue in a case involving a Housing Authority.

In Rowan v. Chicago Housing Authority, 149 F.Supp. 2d 390 (N.D. Ill. 2001), the Housing Authority had a reduction in force that eliminated 69 police officer positions. The affected employees all worked for the Authority, assigned to five separate stations. The court ruled that the Authority was not required to comply with the WARN Act because, under these circumstances, a "mass layoff" did not occur. Although more than 50 employees were terminated, they did not constitute more than one-third of the Authority's employees.

Violations of the WARN Act render the employer liable for back pay, lost benefits, attorney fees, and possibly civil fines. While the Housing Authority in this case escaped liability, the lesson is to assure compliance with the law in the event of any staff layoffs necessitated by drastic reductions in HUD funding.

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Service Animals and No-Pets Policies

There are at least three laws that can require a housing provider to modify or make exceptions to a no-pet policy for a tenant with a disability. The laws include Title II of the Americans with Disabilities Act (ADA), the Fair Housing Amendment Act, and Section 504 of the Rehabilitation Act. Courts have enforced the requirement of a no-pet policy waiver in the public housing context. See, e.g., Majors v. Housing Authority, 652 F.2d 454 (5th Cir. 1981).

What are the rules? First, the tenant must have a legally-protected disability, which is a mental or physical condition that substantially impairs a normal life activity (walking, talking, seeing, learning, etc.). Second, the animal must be a service animal and not simply a pet. This just means that the animal must be individually trained, and that the animal must work for the benefit of the person with a disability. Green v. Housing Authority of Clackamas County, 994 F. Supp. 453 (D. Ore. 1998). However, unless it is patently obvious, a landlord can require the tenant to produce a written assertion that the animal has been properly trained, as well as a doctor's certification verifying the need for the animal's assistance. In re: Kenna Homes Cooperative, 557 S.E. 2d 787 (W. Va. App. 2001).

While the most common service animals are dogs, other animals can be legitimate service animals. See, Janush v. Charities Housing, 169 F. Supp. 2d 1133 (N.D. Cal. 2000) (cats and birds).

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Section 8 Voucher Termination

In a recent case, the Housing Authority for the City of Camden, New Jersey, terminated a Section 8 voucher assistance after the landlord reported disturbances involving a tenant. Thinking that it was complying with HUD Regulations, the Authority sent the tenant a notice that said that assistance was terminated because of her "annoyance and disruption," and "criminal actions" that threatened the peaceful enjoyment of other residents. The notice also advised the tenant of her right to request an informal hearing.

The tenant sued, claiming that her termination violated her constitutional due process rights and the U.S. Housing Act. The federal court agreed. The court ruled that the notice was deficient because it did not provide adequate information about the reasons for termination. The court said that due process rights require that the tenant have "timely and adequate notice detailing the reasons for the termination," and that the notice in this case was not sufficiently detailed. The court remarked that:

"It is not [the tenant's] obligation to surmise what she did to warrant termination of assistance, and without more explanation, this is exactly what [the Authority's] termination letter caused her to do." [Pratt v. Housing Authority for the City of Camden, 2006 WL 2792784 D.N.J. 2006)].

[Source:  Housing and Development Reporter, Current Developments, 10/23/06 issue; p. 699].

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