Avoid 10 Pitfalls When Responding to Sexual Harassment Complaints

Be prepared to respond effectively when a tenant accuses a staff member.

 

 

You might be familiar with rules banning sexual harassment of employees in the workplace, but there are similar rules banning sexual harassment of prospects, applicants, and residents of multifamily sites. Claims for sexual harassment, which is considered a form of housing discrimination based on sex, can cost greatly in settlements or court awards, civil penalties, and attorney’s fees as well as cause lasting damage to the reputation of your site, management, and individuals involved.

Earlier this year, the Department of Justice announced a settlement with a Michigan landlord to resolve a Fair Housing Act (FHA) lawsuit concerning the landlord’s sexual harassment of current and prospective female tenants. The lawsuit alleged that the landlord made unwelcome comments and advances and offered current and prospective female tenants housing-related benefits in exchange for engaging in sex acts with him. The landlord agreed to pay $185,000 in damages to eight former and prospective female tenants harmed by the harassment and pay a civil penalty to the government. Also, the landlord was required to take steps to cancel any retaliatory eviction judgments obtained against these tenants.

Under the consent decree, the landlord cannot personally manage rental properties in the future and he is required to implement nondiscrimination policies and complaint procedures to prevent sexual harassment at his properties in the future and to take fair housing training [U.S. v. Hussein, April 2024].

Recently, HUD gave the issue of sexual and other discriminatory harassment in housing more awareness by promoting harassment prevention resources in a training webpage. The site can be found at www.hudexchange.info/trainings/preventing-harassment. The webpage clarifies what sexual harassment in housing looks like and how it may violate the FHA.

Owners should be determined to protect tenants from sexual and other forms of illegal harassment. The challenge isn’t so much about their own personal behavior as that of the leasing agents, managers, maintenance personnel, and other staff who serve as their legal agents. And while preventing objectionable behavior among leasing agents, managers, maintenance personnel, and other staff is an important objective, owners must also be prepared to respond effectively if and when a tenant accuses a staff member of harassment. To accomplish this, we’ll cover 10 sexual harassment investigation pitfalls and how to avoid them.

Sexual Harassment in Housing

Sexual harassment in housing is illegal, as is harassment based on race, color, national origin, familial status, disability, or religion. All site owners and managers are responsible for ensuring that their housing is free from discriminatory harassment of any type. Property management staff, agents, and owners can all be liable for harassment, as can tenants who harass other tenants. Sexual harassment is illegal when an owner or property management employee or agent:

• Makes obtaining, maintaining, using, or enjoying housing (or housing-related services) contingent upon submitting to unwelcome demands for sex, sexual favors, or any other type of sexual conduct; and/or
• Subjects a resident or applicant to unwelcome sexual conduct that is sufficiently severe or pervasive that it interferes with that person’s right to obtain, maintain, use, or enjoy housing (or housing-related services).

Owner liability. Owners and management companies are liable for sexual and other types of harassment in their housing if:

• The harassment is committed by any employee or agent (even if supervisors don’t know about it); and/or
• The owner or management company fails to take action(s) within their power to stop the harassment of a tenant or applicant by an employee, agent, or another tenant, if they knew or should have known about it.

Therefore, in response to a complaint about sexual harassment committed by one of your agents against a tenant, you must promptly investigate the complaint. If you determine that the allegations are true and harassment did take place, you must then initiate corrective action, typically by disciplining, reassigning, or even terminating the staff member who engaged in it. 

Pitfall #1: Waiting Too Long to Start

Perhaps the most common investigation mistake sites make is taking too long to get things started. Over time, memories fade, witnesses leave, and physical evidence disappears. In addition to compromising the evidence, delaying an investigation undermines its effectiveness and puts additional strain on the accuser, accused, and other parties involved. It also allows any misconduct that’s occurring to continue unchecked.

As a result, put the investigation process into motion immediately after receiving the complaint. But also keep in mind that while speed is important, fairness is the paramount concern and that rushing an investigation is just as bad as stalling it. Specifically, be sure to provide enough time for the preliminary work required before an internal sexual harassment investigation can begin, including:

• Reviewing the accuser/tenant’s rental records and files;
• Reviewing the accused’s personnel file, job description, and performance reviews; and
• Identifying the issues raised in the complaint and whether they’d constitute sexual harassment if the accusations are true.

Pitfall #2: Using Investigator Who Isn’t Objective

It might be tempting to designate the property manager or other on-site person to investigate any sexual harassment complaints submitted by tenants at the site. But previous involvement and familiarity with the site might actually make them ill-suited to carry out investigations to the extent they may be directly or indirectly involved in the matters being investigated. And this lack of objectivity will cast doubt on the reliability and trustworthiness of the investigation results.  

Therefore, the person carrying out the investigation must be completely impartial and not related to or in any other special relationship with either the accuser or accused. That’s why managers shouldn’t investigate subordinates and vice versa. Individuals also shouldn’t investigate if they have a history of conflict with one of the parties. Nor should the investigators have a personal or professional stake in the outcome, such as managers determined to use the investigation to cover up wrongdoing committed by their personnel.

Unfortunately, it’s not always easy to find objective and impartial investigators, especially at small sites where everyone knows one another and may be affected by the outcome of the investigation. As a result, you should consider hiring an external qualified investigator to investigate tenant sexual harassment complaints at your site. It’s critically important that the investigator not only is fair, impartial, and credible but perceived as such by both sides.

Pitfall #3: Not Getting Both Sides of the Story

One common mistake is talking only to the alleged victim. You can’t have a fair investigation unless you also give the accused an opportunity to give his or her side of the story.

You must also give the accused the facts they need to know about the allegations, including dates and specific details, to respond effectively. And make it clear to all witnesses, both immediately before and after the interview, that they won’t suffer retaliation of any kind for participating in the investigation.

Pitfall #4: Not Letting the Accused Respond Directly to the Accusation

A common tactic of interrogation is to not let the accused know what they’re accused of in the hopes of getting them to blurt out their offenses. But this practice is highly inadvisable when investigating sexual harassment. Lack of transparency can taint the investigation, especially when interviewing the accused.

So tell the accused exactly what he’s accused of and give him a fair chance to respond to the allegations. However, there’s one important detail that you may legitimately decide not to disclose: the accuser’s identity, for example, where there’s a pre-existing personal relationship between the parties.

Pitfall #5: Not Interviewing Third Parties

Investigators may get so caught up in the interplay between the accuser and accused that they overlook the other people who may have relevant information about the situation. This limited focus is especially likely to occur in he said/she said situations.

To combat this, investigators should ask the accuser and accused for the names and contact information of any witnesses who are familiar with the situation. That same question should then be posed to any third-party witnesses subsequently interviewed. If witnesses refuse to cooperate, remind them of their legal duty to cooperate in the investigation. If they still refuse, create a written record to document the refusal.

Pitfall #6: Asking Leading Questions

It’s not just how many interviews you do but how you do them. One common interview mistake to avoid is leading witnesses or phrasing questions to set up the witness to respond in a certain way. For example, say a tenant accuses the building manager of making inappropriate remarks about her tight clothes not only to her but also to a neighboring tenant on the same floor. The investigator decides to interview neighbor to see if she can confirm the story.

• Bad interview question: “Did the manager ever say anything to you about your neighbor’s tight clothes?”
• Good interview question: “Did you ever hear the manager make any inappropriate comments about you or any of your neighbors?”

Be sure to warn investigators about asking leading questions and instruct them to phrase questions that are open-ended, focused strictly on the who/what/when/where/how/why and free of qualifiers, adjectives, or other items that may lead a witness. Of course, you won’t have to provide this tutorial if you hire an expert with professional qualifications to investigate sexual harassment complaints.

Pitfall #7: Interviewing Witnesses in Each Other’s Presence

Interviewing the accuser in front of the accused can intimidate the accuser, and vice-versa. Even third-party witnesses can be influenced by the presence or statements of others. As a result, the testimony becomes less credible as evidence.

Instead, ensure that witnesses are interviewed separately and not in the presence of other witnesses. Also be on the lookout for and take steps to minimize the risk of witness collaboration and intimidation.

Pitfall #8: Not Following Your Own Investigation Procedures

A surefire way to taint an investigation is to deviate from your organization’s investigation procedures and protocols. Although you can be flexible if the occasion demands it, make sure you have a solid justification any time you depart from normal policy and procedure.

Pitfall #9: Not Following Up on Investigation Report

From a liability standpoint, the absolute worst thing an owner can do when an internal investigation finds that one or more of your staff did commit sexual harassment against a tenant is to do nothing at all. The investigation report becomes a smoking gun definitively proving that you were aware of the harassment and setting you up for FHA liability for not taking “prompt action” to stop it. 

At a minimum, notify the accuser and accused of the investigator’s findings regardless of the outcome. If the report confirms the truth of the allegations, you must take action against any employees involved. More often than not, action will include discipline and perhaps termination based on the terms of your progressive discipline policies and procedures and the unique circumstances involved—for example, the gravity of the offense, the position and disciplinary history of the employee who committed it, remorse exhibited, etc.

You must also be prepared to hold agents who aren’t employees accountable for the sexual harassment they commit—for example, by terminating agreements or exerting financial pressures on landscaping, cleaning, servicing, or other contractors whose employees harass your tenants.

Pitfall #10: Not Documenting Investigation Results

It’s critically important to thoroughly document each step of your investigation so you can retrace your steps and prove that the investigation was thorough and fair. As lawyers like to say, if it isn’t documented, it never happened. Therefore, keep records of:

• The sexual harassment complaint submitted by the tenant or third-party witness on the tenant’s behalf;
• The investigation plan;
• Witness statements and interview notes;
• The investigation report and recommendations; and
• The actions you took in response to the report or the reasons you determined not to take any corrective actions.