Neighbor-on-Neighbor Harassment: Does the Fair Housing Act Make a Federal Case Out of It?
Robert G. Schwemm
University of Kentucky - College of Law
January 14, 2011
Case Western Reserve Law Review, Vol. 61, No. 3, p. 865, 2011
Today, more than forty years after enactment of the 1968 Fair Housing Act ("FHA"), housing harassment of minority families by their neighbors remains pervasive. Every year, thousands of such harassment complaints are filed with private and governmental fair housing agencies. The behavior alleged in these complaints ranges from firebombings and other physical assaults to simple verbal abuse.
Given how frequently housing harassment has occurred throughout the FHA's history, one might expect that the statute's application to neighbor-on-neighbor harassment would be settled by now. But a series of court decisions in the past decade has raised serious doubts about how this matter should be handled, with the courts often expressing misgivings about employing the FHA's anti-harassment provision (§ 3617) unless the defendant's conduct amounts to a "pattern of harassment."
Courts that have dismissed such behavior as merely a "quarrel among neighbors" that is not worthy of being made into a "federal case" are essentially imposing some sort of de minimus defense in § 3617 cases, because they believe the FHA was not intended to impose a "civility code" on neighbors. But the text of § 3617 - surely the best indicator of congressional intent - contains no such defense. Nor is this provision analogous to the one in Title VII that the Supreme Court has interpreted to prohibit only "severe or pervasive" harassment in the employment context. Thus, the language of § 3617 might well be interpreted to extend to even isolated hostile remarks, at least so long as that interpretation does not run afoul of the speaker's First Amendment rights. Furthermore, there are good reasons to suppose that congressional concerns underlying the FHA might be advanced by broadly interpreting § 3617 to outlaw all forms of invidious harassment among neighbors.
This Article concludes, therefore, that § 3617 should be applied to a broader range of invidiously motivated disputes among neighbors than most prior decisions have allowed.
Number of Pages in PDF File: 67
Keywords: fair housing, housing discrimination, harassment, civil rights
JEL Classification: J71, K41, K42Accepted Paper Series
Date posted: May 26, 2011
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