Second Circuit scales back the scope of the Fair Housing Act

The Court of Appeals holds en banc that the Fair Housing Act of 1968, which aims to eliminate racial discrimination in housing, does not allow a tenant to sue the landlord over his deliberate indifference to racial harassment committed by another tenant. The rare en banc vote was 7-5.

The case is Francis v. Kings Manor, issued on March 25. Francis lived in an apartment complex in Suffolk County. His neighbor targeted Francis for horrible racial harassment that eventually got the neighbor arrested for aggravated harassment. Francis complained on multiple occasions to the landlord about this abuse, but the landlord did nothing, though it did handle other non-race-related disputes among tenants on other occasions. 

This case reaches the Court of Appeals on a Rule 12(b)(6) posture, so there is no discovery yet, just the pleading. The majority says the FHA cannot provide a remedy because, unlike racial harassment in the workplace, landlords do not have the "substantial control" over tenants that employers have over employees. Judge Cabranes, writes, "We are hard-pressed to presume that an employer's manner and degree of control over its agent-employees is equivalent to that of a landlord over its tenants." Not only do "most employers have ready access to, effective control over, and the ability to move within, the physical workspace and can freely dismiss at-will employees," and they can monitor and investigate employees to remediate misconduct, the same cannot be said about landlords. In addition, 

New York tort law has long been clear that a landlord has no general duty to protect tenants even from “the criminal acts of yet another tenant, since it cannot be said that [a] landlord ha[s] the ability or a reasonable opportunity to control [the offending tenant]” and the “power to evict cannot be said to . . . furnish” such control. 

Judge Lohier writes the main dissent, having written the majority decision in this case a few years ago that the en banc ruling now reverses. After reviewing the extent of the racial harassment visited upon plaintiff and the landlord's indifference to his complaints, Judge Lohier notes that under the minimal pleading requirements in civil rights cases in the Second Circuit, plaintiff states a case in part because he alleges the landlord had authority to counsel, discipline and evict the harasser and it had intervened in other disputes among tenants. The lease gives the landlord authority to control bad tenants, and in this case we are not talking about a loud stereo but criminal activity that got the harasser arrested. Plus, we have the warranty of habitability that state law imposes on landlords to ensure the tenants have a safe living environment. 

En banc rulings in the Second Circuit are rare. The last civil case that the entire court took up was Zarda v. Altitude Express, where the Court held for the first time that sexual orientation discrimination is a form of sex discrimination under Title VII, a ruling that the Supreme Court upheld in Bostock/Zarda in 2020. That en banc case was heard in 2017. If you are keeping score, the lineup in the Francis case is as follows: of the seven judges in the majority, one was appointed by a Democrat (Cabranes), one was appointed by George W. Bush (Livingston) and five were appointed by Trump (Bianco, Nardini, Menashi, Sullivan and Park). All the dissenters (Chin, Lohier, Pooler, Katzmann, and Carney) were appointed by Democratic presidents.