Posted: 21 Jul 2006 Last revised: 10 Mar 2017
Sexual harassment is predicated on the imbalance of power. Landlords typically have significant power over their tenants, including the power to decide who may rent an apartment, to evict a tenant, to provide or withhold services, and to set the rent. Landlords have additional power because of the historical allocation of property in this society and widespread shortages of adequate rental housing in America's urban areas.
The housing crisis in our nation's cities most seriously affects low-income Americans. During the past few decades, the median monthly rental rates increased more than double the rate of salary growth over the same period. Poor tenants, as a result, are often in subordinate positions with respect to their landlords. Low-income women, who comprise the majority of tenants victimized by sexual harassment, are further subordinated by socialized norms. An unequal power relationship involving a dominant male provides an environment for sexual harassment of women.
In some jurisdictions, women who are sexually harassed by their landlords can now seek recourse through Title VIII of the Civil Rights Act, commonly known as the Federal Fair Housing Act. The Act makes it unlawful to discriminate in the sale or rental of a dwelling on the basis of sex. The few courts that have addressed the issue of landlord sexual harassment have not agreed on a standard of proof. In a majority of rental sexual harassment cases, the victims are women. In other causes of action typically involving women victims, such as hostile work environment claims under Title VII , or claims of domestic violence or rape, there has been rigorous debate about which standard of proof courts should apply. Although the reasonable person standard has remained the majority rule, many courts and commentators suggest that where the majority of victims are women, determinations of whether conduct constitutes sexual harassment should be made from the perspective of the reasonable woman. Neither the reasonable person nor the reasonable woman standard has been completely effective in sexual harassment claims under Title VII, and despite the importance of the debate, scholars have been unable to reach a consensus. Many commentators believe the seemingly neutral reasonable person standard actually reflects the male point of view. They believe the reasonable woman standard must be applied to take into account the perspective of the woman. Others, however, suggest that the reasonable woman standard is inherently biased toward the victim and is difficult to apply. As long as the jurisprudence remains trapped in this circular debate between the reasonable person and reasonable woman standards, courts will never focus on the real problem associated with sexual harassment - power. Sexual harassment occurs when one person is in a position of power with respect to the other. Because of the historical allocation of property, and the scarcity of adequate rental housing, landlords usually have some power over their tenants. When compounded with the fact that tenants are often poor minority women who are socially, politically, and economically powerless, the power imbalance is complicated. The reasonableness standards are not designed to specifically take into account the unique power disparities often seen in the landlord/tenant relationship.
This Article proposes that in claims of hostile housing environment under Title VIII, courts shift their focus from the inherent differences between men and women or between poor people and rich people, to the unequal balance of power that underlies the very construction of the landlord/tenant relationship. The Article ultimately proposes a standard that focuses on the power distribution in the landlord/tenant relationship. Specifically, I propose courts use unconscionability law as a framework for evaluating conduct stemming from a disparity in bargaining power.
Keywords: sexual harassment, sex, gender, discrimination, Title VII, Title VIII, Housing discrimination, Landlord/tenant
JEL Classification: J71, K30, K12
Suggested Citation: Suggested Citation
Zalesne, Deborah, The Intersection of Socio-Economic Class and Gender in Hostile Housing Environment Claims Under Title VIII: Who is the Reasonable Person?. Boston College Law Review, Vol. 38, p. 861, 1997. Available at SSRN: https://ssrn.com/abstract=918060