The Kulka Group

One of the hard-earned civil rights of African Americans is the right to own and rent property in the same manner and terms as White Americans. For most of American history, African Americans were subject to a different set of rules than White Americans, and in the process were denied housing, prohibited from renting in certain areas, and denied the same accommodations as Whites. To address this injustice, on April 11, 1968, President Lyndon B. Johnson signed the Fair Housing Act (“FHA”) of 1968 into law. The FHA outlaws, among other actions, “discrimination based upon race, color, religion, sex, disability, familial status or national origin in the terms, conditions or privileges of sale or rental of a dwelling.”

Fast forward to 2020, and the scope of the FHA is still being litigated right here in Suffolk County, New York. Currently pending in the Second Circuit Court of Appeals is the case of Donahue Francis v. Kings Park Manor, Inc., Corrine Downing and Raymond Endres, 15-1823-cv, in which the plaintiff, Donahue Francis, was a tenant in a building owned by defendant Kings Park Manor (“KPM”), which is represented by the law firm of Somer & Heller, LLP. Mr. Francis sued KPM and alleged that another tenant, Raymond Endres, subjected him to harassment on the basis of his race. Specifically, Mr. Francis alleged that Mr. Endres called him the n-word on numerous occasions but did not allege that KPM harassed him in any way. Rather, Francis alleged that KPM was liable under the FHA for failing to intervene in Endres’ alleged harassment of Francis.

KPM subsequently moved to have the case dismissed on the basis that the FHA did not require landlords to police tenant on tenant racial harassment. The lower court granted KPM’s motion, and dismissed Mr. Francis’ FHA claims. However, Mr. Francis appealed the lower court’s decision to the Second Circuit Court of Appeals. On appeal, the Second Circuit atypically issued two written decisions, both of which reinstated Mr. Francis’ claims under the FHA. In its final decision, the Second Circuit determined that landlords now have the duty to police, prevent and investigate racial harassment between tenants.

This groundbreaking decision now requires landlords to take decisive action against tenants who racially harass other tenants. KPM had three options with respect to the Court’s decision. It could have accepted the ruling and proceeded with the case, appealed to the Supreme Court of the United States, or asked for a rehearing “en banc”, or by the entire panel of active judges in the Second Circuit, which they opted to do. KPM’s petition for a rehearing was a long shot, as these petitions are only granted a few times per decade. However, the Second Circuit granted KPM’s Petition, and the case is currently being briefed by the parties, with oral argument scheduled for May 2020.

Why is this case so important and why should you care? First, landlords and managing agents now have a new and expansive duty to remediate tenant on tenant racial harassment. This is an extremely difficult task, requiring the preparation and implementation of policies and procedures to comply with the new ruling. Specifically, landlords will need to formulate a process of investigating and evaluating the merits of a tenant’s complaint and create a consistent enforcement policy. The new ruling will also require landlords to take firm action against tenants found to have racially harassed other tenants, from sending notice letters, to commencing eviction proceedings. Tenants now have new rights under the FHA which may help to protect them from racial harassment from their fellow tenants.

The election of Donald Trump as President in 2016, however, has added an additional variable into the equation. President Trump has nominated new, more conservative justices to the Second Circuit Court of Appeals who will be hearing the Francis case. As a result, the Court now has a majority of conservative justices, raising the possibility that the Second Circuit may reverse its decision, dismiss the case, and rule that the FHA does not require landlords to prevent tenant on tenant racial harassment. Stay tuned, as the outcome of this case is anyone’s guess.