News Law and Policy

Appeals Court: Fair Housing Act Protects Against Sexual Orientation Discrimination

Jessica Mason Pieklo

The decision issued Monday is an important step forward in clarifying fair housing protections for LGBTQ people.

A federal appeals court on Monday ruled a suburban Chicago senior living center could be held liable under federal fair housing law for failing to protect a resident from anti-gay slurs and other harassment targeting her sexual orientation.

Marsha Wetzel moved into Glen Saint Andrew Living Community in Niles, Illinois, after her partner of 30 years died in 2013. According to court documents, after arriving at St. Andrew, Wetzel spoke to staff and other residents about her sexual orientation, many of whom responded with intolerance. Court documents detail a 15-month period in which other residents repeatedly berated her for being gay and even physically assaulted her. Wetzel claims she routinely reported the abuse to St. Andrew’s staff. Initially the abuse subsided but staffers became apathetic to Wetzel’s complaints and eventually retaliated against her. 

In July 2016 Wetzel sued, claiming St. Andrew failed to ensure a nondiscriminatory living environment and retaliated against her for complaining about sex-based harassment in violation of the Fair Housing Act. St. Andrew asked the court to dismiss Wetzel’s claim, arguing that the FHA did not make a landlord liable for failing to stop tenant-on-tenant harassment unless the landlord’s failure to act was due to “discriminatory animus.” In January 2017 a lower court agreed with St. Andrew and dismissed Wetzel’s claims. Wetzel appealed and on Monday, the U.S. Court of Appeals for the Seventh Circuit reversed that lower court decision, allowing Wetzel’s lawsuit against St. Andrew to proceed.

“Not only does it 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,” the court ruled.

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“This is a tremendous victory for Marsha,” Karen Loewy, Wetzel’s attorney and Lambda Legal senior counsel and seniors strategist, said in a statement. “She, just like all people living in rental housing, whether LGBT or not, should be assured that they will at least be safe from discriminatory harassment in their own homes. What happened to Marsha was illegal and unconscionable, and the court has now put all landlords on notice that they have an obligation to take action to stop known harassment.”

Wetzel’s case could help clarify federal housing protections for LGBTQ tenants. Relying on a previous Seventh Circuit decision in Hively v. Ivy Tech Community College, which ruled discrimination on the basis of sexual orientation was discrimination on the basis of sex under Title VII of the Civil Rights Act, the Seventh Circuit on Monday ruled that decision “applies with equal force” to sexual orientation discrimination under the Fair Housing Act. 

“The court today struck a blow for me and for all senior citizensgay or straightwho deserve to feel safe and to be treated with respect,” Wetzel said in a statement. “That’s not too much to ask. No one should have to endure what I endured because of who I am.”

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