09-12-2018
Marsha Wetzel was a senior citizen living at Glen St. Andrew Living Community. She had a private apartment and was guaranteed three meals a day pursuant to a “Tenant’s Agreement.” Under this agreement, tenants were also entitled to peaceful use and enjoyment of the community. For Ms. Wetzel, an openly gay woman, it was not at all peaceful. She has claimed that some of the other residents subjected her to a barrage of abuse based on her sexual orientation and called her explicit names. She was also subjected to physical abuse by one resident in particular who bashed her wheelchair, struck her in the back of her head, and knocked her off of a ramp.
The abuse was reported to the management staff at St. Andrews but they were generally indifferent in response. Her complaints were dismissed and she was branded a liar. In fact, they purportedly retaliated by giving her a less desirable dining room location, barring her from the lobby, and stopping her cleaning services. She was falsely accused of smoking and did not receive the usual rent
Under the Seventh Circuit’s consideration was whether the FHA proscribed the discrimination suffered by Ms. Wetzel. The parties agreed that the circuit court’s decision in Hively v. Ivy Tech, holding that “discrimination based on sexual orientation qualifies as discrimination based on sex under Title VII, applies with equal force under the FHA.” Thus, the next issue was whether the harassment was sufficiently severe or pervasive. Ms. Wetzel’s 15 months of described harassment could plausibly be both severe and pervasive. Finally, the court considered whether liability could be imputed to St. Andrew, relying on anti-discrimination statutes such as Title VII and Title IX.
“Not only does [the FHA] create liability when a landlord intentionally discriminates against a tenant based on a protected characteristic; it also creates liability against a landlord that has actual notice of tenant-on-tenant harassment based on a protected status, yet chooses not to take any reasonable steps within its control to stop that harassment.”