Court: Landlords Must Protect Tenants From Homophobic Harassment

A lesbian who says she was physically and verbally attacked in her senior housing community, being bruised, battered, and spit on, is going to get her day in federal court in a significant case for tenants' rights.

In what advocates are calling a groundbreaking decision, the U.S. Court of Appeals for the Seventh Circuit has ruled that a landlord may be held liable for failing to protect a tenant from known discriminatory harassment by other tenants.

The Chicago-based Seventh Circuit, which covers Illinois, Indiana, and Wisconsin, made the ruling Monday in the case of Wetzel v. Glen St. Andrew Living Community, a senior housing facility in Niles, Ill., a suburb of Chicago. It reversed a lower court's decision dismissing the case and ruled that under the federal Fair Housing Act, Glen St. Andrew "can be held accountable for purposefully failing to protect lesbian senior Marsha Wetzel from the harassment, discrimination and violence she suffered at the hands of other residents because of her sex and sexual orientation," according to a press release from Lambda Legal, which represented Wetzel. The suit now goes back to the lower court for further proceedings, so Wetzel will get a chance to prove her case. The decision also represents an expanded interpretation of the housing law.

"This is a tremendous victory for Marsha," said Karen Loewy, Lambda Legal senior counsel and seniors strategist, in the press release. "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.

"This duty is particularly clear for senior living facilities like Glen St. Andrew, whose staff are entrusted and paid to provide a safe living environment for seniors, including LGBT residents. We are grateful that the court understood and reinforced that understanding."

Wetzel moved into an apartment at Glen St. Andrew in 2014 after the death of her partner of 30 years, Judith Kahn, with whom she raised a son; Kahn's siblings evicted her from the home the couple had shared. Since then, she "has been subjected to a pattern of discrimination and harassment because of her sex and sexual orientation, including persistent verbal harassment, threats, intimidation, and three separate assaults, at the hands of other residents. She has been called countless homophobic slurs, taunted about her relationship with Judy and their child, threatened with bodily harm, bullied and intimidated in all of the communal spaces in the facility, and physically injured by other residents, all because she had a committed relationship and created a family with another woman and because she is a lesbian," according to the lawsuit filed by Lambda Legal in 2016.

In one of the incidents, Wetzel, who uses a scooter for mobility, was going up a ramp at the facility when another resident hit the scooter so hard with his walker that she fell off the seat and incurred a large bruise on her arm, the lawsuit says. He had previously taunted her with homophobic slurs, and he used one at this time. She reported the incident to managers, but they did not take her seriously, she says. When he continued harassing her, she kept on reporting it, but managers suggested she was lying. His remarks to her, she recalls, included "Judy died to get away from you" and that their son was a "homosexual-raised faggot."

Another tenant made comments to her such as "you look like a man" and "homosexuals will burn in hell," and at one point rammed her wheelchair into the table where Wetzel was seated in the dining hall, according to the suit. Later, Wetzel says, this resident spit on her.

Another time, she says in the suit, she was in the mailroom on her scooter when someone hit her from behind, knocking her forward over the scooter and leaving her with a head bump and a black eye. She did not see the person but heard them say "homo." Other epithets she heard at various times included "fucking dyke," "fucking faggot," and "homosexual bitch." Wetzel says she reported all this harassment to managers, but instead of addressing it, they retaliated against her.

The suit, filed in U.S. District Court for the Northern District of Illinois, argued that in failing to act, the management of Glen St. Andrew violated both the federal Fair Housing Act and the Illinois Human Rights Act. In January 2017, the district court "dismissed the case without reference to the sex or sexual orientation claims, broadening the question at stake to the senior living facility's general responsibility for protecting residents against resident-on-resident harassment and violence," Lambda Legal's press release notes. The appeals court reversed the dismissal and sent the case back to the district court for further action.

In Monday's ruling, Seventh Circuit Chief Judge Diane P. Wood wrote, "Not only does [the Fair Housing Act] 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."

She cited the case Hively v. Ivy Tech Community College, in which the Seventh Circuit ruled last year that employment discrimination based on sexual orientation violates the federal civil rights law against sex discrimination, and she said that this "applies with equal force" to the Fair Housing Act. She further held that "the harassment Wetzel describes plausibly can be viewed as both severe and pervasive," even though the Glen St. Andrew management characterized it "as no more than ordinary 'squabbles' and 'bickering' between 'irascible,' 'crotchety senior resident[s].'" Wood said that for the purpose of this decision, the appeals court accepts Wetzel's account as true, but Glen St. Andrew officials will have a chance to answer it when the case goes to trial at the district court level.

"The court today struck a blow for me and for all senior citizens -- gay or straight -- who deserve to feel safe and to be treated with respect," Wetzel said in Lambda Legal's press release. "That's not too much to ask. No one should have to endure what I endured because of who I am."