Not Playing Nice in the Sandbox – Handling Harassment Hassles

By Megan Hall, Esq.

The responsibilities and potential liabilities for homeowner’s associations related to complaints of harassment have increased from 2016 until the present, leaving directors and managers to cope with an increase in such complaints.

Effective January 1, 2020, the California Department of Fair Employment and Housing provided guidelines for associations to address discrimination and harassment claims. (See Calif. Code of Regs §§ 12000-12271.) These regulations, similar to the prior U.S. Department of Housing and Urban Development (HUD) regulations, hold an association liable for failing to take corrective action to end discriminatory or harassing conduct of a third party. For associations that have employees, there are additional obligations to prevent and investigate harassment of employees. (See Government Code §§ 12900-12996; 2 Calif. Code of Regs. §§ 11000-11141.)

In other words, under certain circumstances, an association can be held liable for harassment between residents, between residents and employees/ vendors, between guests and residents, between guests and employees/vendors, etc. This expansion of responsibility and potential liability may leave you asking, what can an association do?

Investigation

If an association’s manager or a board member receives a complaint of harassment, the board will need to take steps to investigate the complaint. The association’s responsibility to take corrective action depends on whether the harassment is based on the individual’s membership in a protected class, being perceived as being a member of a protected class, “or on account of having aided or encouraged any person in the exercise of rights protected by the Act.” (2 Calif. Code of Regs. § 12120(e).) In California, protected classes include race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, age, medical condition, genetic information, citizenship, primary language, immigration status, military or veteran status. (Cal. Gov’t Code § 12940(a).) If the harassment is not based on one of the above-listed protected classes, the board may be under no duty to take further action in “neighbor to neighbor disputes.”

If the alleged harassment is based on one of the above listed protected classes, the board should continue their investigation. In conducting their investigation, the board should speak with the complaining party, the accused, as well as any witnesses. The board may also consider evidence presented by either party.

Harassment can be either quid pro quo harassment, which is an unwelcome request or demand to engage in conduct where submission to the request or demand, either explicitly or implicitly, is made a condition to other actions; or hostile environment harassment, which includes violence, a credible threat of violence or an unwelcome course of conduct that is sufficiently severe or pervasive. (Cal. Code of Civil Proc. §§ 527.6, 527.8.)

The board can consider factors such as the nature of unwelcome conduct, the context in which the incident(s) occurred, the severity, scope, frequency, duration and location of the conduct, and the relationships of the people involved. (2 Calif. Code of Regs. § 12120). These factors are considered from the perspective of a reasonable person. There does not need to be psychological or physical harm for a hostile environment to exist.

Action

The board should make a determination as to whether harassment has occurred in executive session. If the board determines that harassment has occurred, the board must take action.

The board should have their general counsel send a written cease and desist demand to the harassing party. Further, for harassers who are members or tenants, the board should follow the enforcement provisions under its governing documents. At the beginning of corrective action, the board should conduct a hearing in executive session, after which the board can take further corrective action permitted under the governing documents, be it fines or the suspension of privileges.

In California, protected classes include race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, age, medical condition, genetic information, citizenship, primary language, immigration status, military or veteran status. (Cal. Gov’t Code § 12940(a).)

If the harassment is against an employee, independent contractor, volunteer, or board member, the board can seek a protective order on behalf of the harassed individual. (See Code Civ. Proc. § 527.8.) A workplace restraining order is appropriate if the individual “has suffered unlawful violence or a credible threat of violence from any individual, that can reasonably be construed to be carried out or to have been carried out at the workplace...” (Id.) As options for addressing harassment may be limited under the governing documents, the board should take such action if warranted to address the behavior.

Prevention

Associations can and should take steps to address and educate residents, directors, and employees about harassment. One step is training. This can take the form of board and/or employee training related to the laws regarding harassment and the association and/or their responsibilities related to the same. This can also take the form of a membership meeting or town hall discussion related to these issues. Due to the large number of categories that define a “protected class” in California, educating and opening discussion as to issues such as blatant harassment or microaggressions can go a long way in making the association a place that people feel happy and comfortable living in.

Another step is the adoption of policies and/or rules related to harassment. These policies/rules should clearly define the type of prohibited behavior, outline the steps for making a complaint, outline the steps that the board will take in investigating complaints, and outline corrective action that may be taken. A good policy/ rule will also indicate what steps the individual reporting harassment and/or the association may take if the matter is outside the scope of the association’s authority.

Megan Hall, Esq. serves as corporate and litigation counsel to boards of directors of common interest developments throughout California. She’s an attorney with Adams | Stirling PLC.