HUD Publishes Final Rule on Quid Pro Quo and Hostile Environment Harassment

HUD recently published a final rule that formally recognizes harassment in fair housing law. The rule sets forth standards for evaluating claims of quid pro quo (“this for that”) harassment as well as hostile environment harassment in the context of housing. According to the rule, whether hostile environment harassment exists depends upon “the totality of the circumstances.” Factors to be considered regarding “the totality of the circumstances” include the nature of the conduct; the context in which the incident(s) occurred; the severity, scope, frequency, duration, and location of the conduct; and the relationships of the persons involved.

The final rule clarifies a provision pertaining to the totality of the circumstances related to evidence of psychological or physical harm. It reads: “Neither psychological nor physical harm must be demonstrated to prove that a hostile environment exists. Evidence of psychological or physical harm may, however, be relevant in determining whether a hostile environment existed and, if so, the amount of damages to which an aggrieved person may be entitled.”

The final rule adds a consideration to weigh regarding the totality of the circumstances: “Whether unwelcome conduct is sufficiently severe or pervasive as to create a hostile environment is evaluated from the perspective of a reasonable person in the aggrieved person’s position.”

Pertaining to both hostile environment harassment and quid pro quo harassment, the final rule provides a provision regarding the number of incidents to consider. In Section 100.600(c), the final rule states that a single incident may constitute a discriminatory housing practice if the incident is sufficiently severe to create a hostile environment or provides evidence of a quid pro quo.