Landlord-tenant sexual-harassment claims
Sexual harassment in rental housing is particularly insidious because “landlords exercise coercive power”
A recently published study found that one in ten low-income women have suffered actionable landlord sexual harassment, including any combination of demands for sexual favors for rent, threats of eviction for refusing sex, inappropriate comments, stalking, improper home entries, and groping and touching. Rigel C. Oliveri, Sexual Harassment of Low-Income Women in Housing: Pilot Study Results, 83 Missouri Law Review 598, 615 (2018). The good news is that more tenants are standing up. Housing and Urban Development saw a two-fold, year-over-year increase in reported landlord-tenant sexual harassment claims. As the Ninth Circuit observed, sexual harassment in rental housing is particularly insidious because “landlords exercise coercive power.” Judd v. Weinstein, 967 F. 3d 952, 957 (9th Circuit 2020). The Court of Appeals of California stated it as “a complete invasion . . . exacerbated by the harasser’s power to evict and withhold repairs and services.” City of Santa Monica v. Gabriel, 186 Cal.App.4th 882 (2010). In a housing shortage, “a tenant cannot easily dissolve the landlord-tenant relationship to avoid the landlord.” Id. This is especially true in California’s tightest rental markets, where even middle-income tenants are at the mercy of their landlords to stay housed in the communities where they work, live, and raise families. With recent amendments to the Unruh Civil Rights Act, the Fair Employment Housing Act, and local tenant anti-harassment ordinances, tenants who are victims of sexual harassment have increased protections, but more work needs to be done.
Unruh Civil Rights Act
The Unruh Civil Rights Act arguably provides the strongest state protections for those suffering from sexual harassment in the landlord-tenant context. The act broadly allows “all persons” to bring claims, which would include tenants, subtenants, their guests, and even prospective tenants inquiring online about a unit. CAL. CIV. CODE § 51(b); Osborne v. Yasmeh, 1 Cal.App.5th 1118 (2016); White v. Square, Inc., 7 Cal.5th 1019, 1033 (2010). The claimant need not have asked for the behavior to stop. Angelucci v. Century Supper Club, 41 Cal.4th 160 (2007). Proper defendants include landlords, property managers, and anyone who “aided” in the harassment. CAL. CIV. CODE § 51(b); Coronado v. Cobblestone Vill. Cmty. Rentals, L.P., 163 Cal.App.4th 831 (2008). With recent amendments, the protected Unruh categories relevant to sexual harassment are now sex, marital status, sexual orientation, gender identity, and gender expression. CAL. CIV. CODE § 51(b); CAL. CIV. CODE § 51(e)(5).
To establish an Unruh claim, a plaintiff must show that (1) the defendant denied, aided, or incited a denial or discrimination, or made a distinction that denied full and equal accommodations, advantages, facilities, privileges, or services; and (2) a substantial motivating reason for the conduct was sex, marital status, sexual orientation, gender expression or gender identity. CACI 3060. Given at least one court’s interpretation. it is important to point out that the conduct must have “denied full and equal accommodations, advantages, facilities, privileges, or services.” The appellate court in Ramirez v. Wong held that a landlord did not deny full and equal access of housing accommodations where a male resident manager entered the apartment of two female tenants, opened their dresser drawers, and removed and sniffed their underwear.
Ramirez v. Wong, 188 Cal.App.4th 1480, 1485 (2010). The Unruh Civil Rights Act, the court argued, was meant to address discrimination denying goods, services, or facilities and the resident manager’s conduct did not deny any of these. Id. at 1485.
The damages under the Unruh Civil Rights Act can be significant. The trier of fact can award actual damages, plus discretionary statutory damages of not less than $4,000 per act and up to three times actual damages. CAL. CIV. CODE § 52(a); CACI No. 3067. Where the sexual harassment included violence or a threat of violence, a plaintiff is entitled to a $25,000 additional penalty. CAL. CIV. CODE § 52(b)(2); CAL. CIV. CODE § 51.7(b). Attorney fees are awardable to the prevailing plaintiff only. CAL. CIV. CODE § 52. If the harassment forces a tenant to vacate a below-market, rent-controlled unit, the actual damages include the loss of the value of that unit, along with moving costs. The lost rental value is calculated as follows: fair market monthly rental value of lost unit less the actual rent paid by the tenant when evicted, times the number of years the tenant expected to stay in the unit. Chacon v. Litke, 181 Cal.App.4th 1234 (2010) (upholding an award of twenty years of projected lost rental value).
The statute of limitations for Unruh claims is either two years or three years depending on the claims involved. Gatto v. Cty. of Sonoma, 98 Cal.App.4th 744, 754-60 (2002). Where the underlying claims are the type that existed at common law, a two-year limitations period will apply. If the claims did not exist at common law and were newly created by the statute, a three-year period applies. Id. The statute of limitations on the $25,000 penalty for violent harassment is three years. CAL. CIV. CODE § 52(b)(2).
Fair Employment and Housing Act
Recently promulgated regulations on sexual harassment in housing have substantially expanded the reach of the Fair Employment and Housing Act (FEHA). Claims can be brought by an “aggrieved person”, which is defined as anyone who claims to have been injured by a discriminatory housing practice or believes that they will be injured by a discriminatory housing practice.” CAL. CIV. CODE § 12927(g). This likely includes tenants not directly impacted who wish to assert “the right to live in a rental accommodation free of housing discrimination.” Myron Moskovitz et al., California Landlord-Tenant Practice § 2:614.12 (2 ed. 2022), citing to Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 114-15 (1979). Unlike in employment cases, there is no requirement to file anything with Department of Fair Employment and Housing before filing suit. CAL. CIV. CODE § 12989.1.
FEHA claims can be brought against a landlord and anyone who “aids” the landlord, such as a property manager or real estate agent. CAL. CIV. CODE §§ 12955(a)&(g). This now includes anyone who lists a unit for short-term rental. CAL. CIV. CODE § 12955(d). Other specifically delineated defendants in the rental housing context include “lessees, sublessees, assignees, managing agents, real estate brokers, or any person having any legal or equitable right of ownership or possession or the right to rent or lease housing accommodations.” CAL. CIV. CODE § 12927(e). A property owner is liable for a resident manager’s sexual harassment, and a property management company is liable for an employee’s sexual harassment. Salisbury v. Hickman, 974 F. Supp. 2d 1282 (2013). In what is an all-too-common scenario, a landlord is liable for tenant-on-tenant sexual harassment where the landlord had an opportunity to prevent the harassment. Wetzel v. Glen St. Andrew Living Cmty., LLC, 901 F.3d 856, 864 (2018).
The elements required to sustain a landlord-tenant sexual harassment claim are now laid out in detail in the FEHA regulations. As one would expect, the regulations provide for two types of sexual harassment claims: quid pro quo or hostile environment.
CAL. CODE REGS. tit. 2 § 12120(a). A trier of fact will be expected to look at the following factors to determine whether a hostile environment existed: “the nature of the conduct, the context in which the incident(s) occurred, the severity, scope, frequency, duration, and location of the conduct, and the relationships of the persons involved.” Id. § 12120(a)(3). Although it is not necessary to show psychological or physical harm, evidence of such harm is relevant in determining whether a hostile environment existed. Id. The conduct must be “sufficiently severe or pervasive so as to alter or interfere unreasonably with the conditions of the housing arrangement”. Brown v. Smith, 55 Cal.App.4th 767, 783 (1997); CAL. CODE REGS. tit. 2 § 12120(a)(3). A single incident of harassment may be sufficient. CAL. CODE REGS. tit. 2 § 12120(d). The regulations provide examples of actionable sexual harassment: epithets, derogatory comments, leering, winking, looking up and down, throwing kisses, sexual gestures, touching, pinching, patting, leaning over, rubbing, brushing up, grabbing, fondling, kissing, following, cornering, blocking, derogatory drawings, coercion, intimidation, threats, demands for sexual favors, revealing private information, and failing to repair. Id. § 12120(c). As with Unruh, it must be shown that the behavior was substantially motivated by the fact that the plaintiff was in a protected class. CAL. GOV. CODE § 12955.8(a). The relevant protected classes under the FEHA are sex, gender, gender identity, gender expression, sexual orientation. Id. § 12955(b).
Under the FEHA, plaintiff may recover emotional distress, actual damages, including the loss of the value of a rent-controlled unit, attorney fees and costs, and expert costs. Id. § 12965. “A prevailing plaintiff should ordinarily receive his or her costs and attorney fees unless special circumstances would render such an award unjust.” Williams v. Chino Valley Independent Fire Dist., 61 Cal.4th 97, 115 (2015). Prevailing defendants may not recover fees unless the court finds that the action was “frivolous, unreasonable, or groundless.” CAL. GOV. CODE § 12965.
As prescribed by statute, a claim for landlord-tenant sexual harassment under the FEHA must be brought within two years. Id. § 12989.1(a).
Sexual harassment in a defined relationship
Any person in a business, service or professional relationship with a property manager or landlord may bring a special statutory claim for sexual harassment in a defined relationship.
CAL. CIV. CODE § 51.9(a)(1). Landlords and property managers are specifically enumerated within the statute. Id. § 51.9(a)(1)(D). Resident managers would likely also be included as “a relationship that is substantially similar to” landlord or property manager. Id. § 51.9(a)(1)(I).
Distinct from Unruh and the FEHA, gender is the only specifically enumerated protected class within this statute. Id. § 51.9(a)(2). The elements of the claim are that “the defendant made sexual advances, solicitations, sexual requests, demands for sexual compliance, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe.” Id. § 51.9(a)(2); CACI No. 3065.
Whether conduct is sufficiently pervasive or severe can be decided as a matter of law. See, e.g. Ramirez v. Wong, 188 Cal.App.4th 1480, 1488 (2010) (holding that a single entry into unit to sniff underwear was not pervasive and severe); Hughes, v. Pair, 46 Cal.4th 1035 (2009) (holding that a single, sexually suggestive telephone conversation was not pervasive).
The trier of fact may award actual damages, plus statutory damages of minimally $4,000 per act and up to three times actual damages. CAL. CIV. CODE § 52(a). Where the sexual harassment included violence or a threat of violence, a plaintiff is entitled to a $25,000 additional penalty. CAL. CIV. CODE §§ 52(b)(2) & 51.7(b); CACI No. 3067. Attorney fees are recoverable by a prevailing plaintiff only. CAL. CIV. CODE § 52.
The statute of limitations for sexual harassment in a defined relationship is two years.
West Shield Investigations & Sec. Consultants v. Superior Ct. of Santa Clara Cnty., 82 Cal.App.4th 935, 952 (2000).
Local tenant anti-harassment ordinances
Many local jurisdictions have promulgated their own anti-harassment ordinances to protect tenants, and nearly all of these prohibit harassment based on some combination of sex, sexual orientation, gender, and gender identity. See, e.g. OAK. MUN. CODE § 8.22.640(A); BERKELEY MUNICIPAL CODE § 13.79.060; SAN FRANCISCO ADMIN. CODE § 37.10B; LOS ANGELES, CAL. MUN. CODE § 151.33; LONG BEACH, CAL., MUN. CODE § 8.101; SANTA MONICA, CAL., MUN. CODE § 4.56; WEST HOLLYWOOD, CAL. MUN. CODE § 17.52.090; RICHMOND, CAL., MUN. CODE § 11.103.060. In addition to allowing for recovery of emotional distress, actual damages, and attorney fees and costs, these ordinances allow for recovery of significant statutory damages. Id.
Many cities have patterned their anti-harassment ordinances after San Francisco’s. Under the San Francisco Rent Ordinance, only a tenant can bring a claim for harassment. SAN FRANCISCO ADMIN. CODE § 37.10B(a). As with other such ordinances, “tenant” is defined within the statutory scheme itself. In San Francisco, “tenant” is a person entitled by written or oral agreement, sub-tenancy approved by the landlord, or by sufferance, to occupy a residential dwelling unit to the exclusion of others. Id. § 37.2(t). A harassment claim can be brought against a landlord or a landlord’s agent, contractor, subcontractor, or employee. Id. § 37.10B(a). Unlike at the state level, San Francisco does not allow all who “aid” a landlord in the harassment to be brought in as defendants.
With one extremely important addition, the San Francisco Rent Ordinance provides that any violation of state or federal discrimination law will form the basis of a cause of action for tenant harassment. Like most other local tenant harassment ordinances, a tenant must also show that the landlord acted in “bad faith” because the tenant had protections under the rent ordinance, namely just-cause eviction protection or rent-increase limitations. Id. § 37.10B(a)(9). What it means to act in “bad faith” is often not defined in the local anti-harassment ordinances, but courts have defined it in varying ways in other contexts: dishonest purpose; interested motive; neglect; beyond mistake; intent to deceive or defraud; ill will; or without proper cause. CACI 2330; NLRB v. Knoxville Pub. Co., 124 F.2d. 875, 883 (1942); Gemini Aluminum Corp. v. Cal. Custom Shapes, Inc., 95 Cal.App.4th 1249, 1263 (2002); Century Surety Co. v. Polisso, 139 Cal.App.4th 922, 949 (2006); Pugh v. See’s Candies, Inc., 203 Cal.App.3d. 743, 764 (1988).
Under the San Francisco Rent Ordinance, tenants who are sexually harassed are entitled to recover actual damages, emotional distress damages, punitive damages, and attorney fees and costs. SAN FRANCISCO ADMIN. CODE § 37.10B(c). Actual damages are automatically tripled.
Id. Emotional distress damages are tripled where a landlord acted in knowing violation or reckless disregard of the protections outlined in the San Francisco Rent Ordinance. Id. Because the damages are automatically tripled, a claim for sexual harassment under the San Francisco Rent Ordinance must be brought within one year. Menefee v. Ostawari, 228 Cal.App.3d 239, 243 (1991).
Sexual harassment is uniquely abhorrent
Courts and legislatures are beginning to recognize that landlord-tenant sexual harassment is uniquely abhorrent. Given that it is now known that actionable sexual harassment in housing is ubiquitous, more work needs to be done. For example, although the Judicial Council has CACI instructions geared for employment quid pro quo and hostile environment sexual harassment, no decent companion instructions exist for housing. Nor have courts or legislative bodies began to acknowledge the long-term impact of landlord-tenant sexual harassment on physical and mental wellbeing. The Fair Employment and Housing Commission has adopted a more expansive view of emotional distress damages in employment sexual harassment cases to include things like loss of integrity, dignity, privacy, reputation, family relationships, and peers and coworkers. CAL. GOV’T CODE § 12970(b). Similar work is in order in housing to reflect the extent medical literature on the unique effects of rental housing stress on physical and mental wellbeing. In addition to the potential large monetary upside to bringing civil claims on behalf of tenants subjected to sexual harassment at the hands of landlords or their agents, the more claims brought will raise visibility and provide clarity to this area of law.
Jacqueline Ravenscroft is a partner at Tobener Ravenscroft. She attended the University of California, Santa Cruz, graduating summa cum laude. Ms. Ravenscroft earned her Juris Doctor degree cum laude from UC Hastings College of the Law in 2011.
As a tenant advocate for more than a decade, Ms. Ravenscroft has represented thousands of tenants in wrongful eviction, habitability, and personal injury claims. She teaches landlord-tenant courses at San Francisco State University and regularly hosts MCLEs on how to maximize insurance policies in landlord-tenant and premises-liability litigation.
2023 by the author.
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