A number of months ago I discussed in this column a disturbing case which arose in Washington, D.C. where a suit was brought by a black woman resident, and former board member, of a condominium against her association when it failed to take any measures to address another unit owner who was an avowed racist and sexist and who was severely harassing the plaintiff. That case was disturbing (a) for its facts and (b) because the Federal District Court in which it was pending ruled that a cause of action existed under the Fair Housing Act against a board which fails to take any steps to address a “hostile housing environment.” The Court reasoned that since discrimination in housing is actionable, and since under the sister Civil Rights Act an employer can be liable for allowing a hostile work environment to exist, then logically a housing provider can be liable for allowing a hostile housing environment to exist. Since condominium boards have been held to occupy the role of a housing provider under the Fair Housing Act, then where it fails to address a situation as presented in this case, it is subject to suit.

            Rightly you might ask, well what can the association do? The Court responded to that question by noting that it could have attempted to mediate, or fine the perpetrator, or revoke his privileges. However, here it did nothing.

            Unfortunately, a similar case has occurred in Massachusetts and was litigated at the Massachusetts Commission Against Discrimination. The decision is some 36 pages long, 27 of which are a recitation of the facts. Needless to say, it was an involved situation. Reduced to its essence, there was a dispute between neighbors which was racially motivated and the board, though fully aware of matters, stood by and did nothing. The MCAD ruled that this “refusal to address an ongoing conflict that escalated into racial harassment renders them liable for allowing this atmosphere to exist”… “ It is clear that the [board], as the governing body of the development, are charged with regulating residents behavior that rises to the level of nuisance.” As such, the board could not legitimately argue that this dispute was not their issue to address.

            Fortunately for the association in this case, the complainants were found to have precipitated much of the controversy. As such, the association was only held liable for $20,000.00 in emotional distress ($10,000.00 for each complainant - husband and wife). The message remains, however when matters involve racial or other protected class issues, boards must take reasonable and appropriate steps.