Second Circuit Rules on Landlord Fair Housing Act Liability for Ignoring Tenant-on-Tenant Racial HarassmentOn March 21, 2021, the United States Court of Appeals for the Second Circuit held en banc in Francis v. Kings Park Manor, Inc., et al. (Francis II) that landlords, who do not have discriminatory intent, are not liable under the Fair Housing Act (FHA) for ignoring tenant-on-tenant racial harassment in their buildings. In considering the question of whether a landlord is liable for discrimination under the FHA where he fails to respond to reports of race-based harassment against a tenant by a fellow tenant, the court  stated that “landlords cannot be presumed to have the degree of control over tenants that would be necessary to impose liability under the FHA for tenant-on-tenant misconduct.”

The dispute at the center of this case revolves around Raymond Endres’s alleged race-based harassment of his neighbor, Donahue Francis. Francis claimed that, on approximately eight occasions, Endres verbally attacked and attempted to intimidate him with racist insults and at least one death threat. Francis reported Endres’s conduct to the Suffolk County Police Department, which informed the parties’ landlord, Kings Park Manor, Inc. (KPM), of the reported events. Suffolk County PD arrested Endres and charged him with misdemeanor aggravated harassment. Francis informed KPM of Endres’s conduct, the police’s involvement in the matter, and Endres’s arrest. Francis alleged that KPM chose not to investigate or intervene and expressly directed the property manager “not to get involved.”

In 2014, Francis filed a lawsuit in the United States District Court for the Eastern District of New York against Endres and KPM. Francis claimed that KPM committed racial discrimination under the FHA by failing to address Endres’s conduct. The district court dismissed Francis’s FHA claim, finding that Francis did not allege a basis for imputing the allegedly harassing conduct to KPM or that KPM failed to intervene on account of their own racial animus toward Francis. On appeal in Francis v. Kings Park Manor, Inc. et al. (Francis I), the Second Circuit reversed the district court’s decision. Before remanding, however, the Second Circuit set aside its reversal and reheard the case en banc in Francis II.

Because Francis’s allegations did not rest on direct evidence of landlord discrimination, the en banc Second Circuit in Francis II analyzed Francis’s claim under the McDonnell Douglas burden-shifting framework. For a plaintiff’s claim to survive a motion to dismiss under this framework, he must allege that he is a member of a protected class, suffered an adverse action, and has at least minimal support for the proposition that the housing provider was motivated by discriminatory intent. Francis claimed that KPM intentionally discriminated against him under a “deliberate indifference” theory of liability. The Second Circuit commented that courts have applied this theory almost exclusively in custodial environments such as schools and prisons, “where it is clear that the defendant has both ‘substantial control over the context in which harassment occurs’ and ‘a custodial power over the harasser permitting a degree of supervision and control that could not be exercised over free adults.’”

The Second Circuit held in Francis II that Francis’s complaint did not provide a factual basis to infer that KPM had “substantial control over Endres and the context in which the known harassment occurred.” The court stated that it could not presume substantial control to exist in a typical arm’s length relationship between landlord and tenant, and that “[t]he typical powers of a landlord over a tenant – such as the power to evict – do not establish the substantial control necessary to state a deliberate indifference claim under the FHA.” The court concluded that, even if KPM had such control, Francis still could not prevail because KPM’s inaction was not “clearly unreasonable in light of the circumstances.” The Second Circuit therefore held that KPM was not liable for racial discrimination under the FHA for Endres’s conduct against Francis.