Dear Office of the General Counsel:
These comments are submitted on behalf of the National Alliance of HUD Tenants (NAHT). Founded in 1992, NAHT is the national tenants union representing the 1.7 million households in privately-owned, HUD multifamily developments. NAHT’s mission includes helping tenants preserve and improve their homes as affordable housing; building tenant organizational power; promoting tenant ownership and control; and improving the quality of life for residents of HUD assisted housing. Today, NAHT represents organized tenant associations and affiliated tenant organizing projects in 17 states. NAHT is governed by an elected all-tenant Board, which has authorized submittal of these comments to HUD.
Since its inception, NAHT and its local affiliates have pioneered the recognition and expansion of tenants rights in HUD assisted housing, including the Right to Organize tenant associations free from management interference, harassment, or retaliation. NAHT’s advocacy in 1994 resulted in language in HUD’s Management Agent Handbook 4381.5, REV-2, which identified sexual harassment of tenants as an impediment to tenants asserting their rights and subject to potential sanction by HUD. NAHT was instrumental in the adoption by HUD of sweeping Right to Organize protections at 24 CFR Part 245, Subpart B, in June 2000, and Housing Notice 2014-12, which outlines potential sanctions for violations of tenants’ rights. although HUD’s Office of Housing has yet to issue any Civil Monetary Penalty under the Notice, despite widespread violations.
Accordingly, NAHT strongly welcomes the proposed rule on harassment and liability for protected classes under the Fair Housing Act (FHA) as a milestone in expanding tenants’ rights and the protections and advocacy tools available to them. The proposed rule is thoughtful, thorough, and moving in its forthright affirmation of people’s homes as a sanctuary for privacy, personal freedom, security and safety. We applaud the proposed rule for clearly declaring that all protected classes under the FHA should be protected from broad, inclusive definitions of harassment which may be perpetrated against people because of their membership in one or more protected class.
In particular, we applaud HUD for clarifying in the proposed rule that third party providers (such as owner and their management agents) are directly liable for failing to “take prompt action to correct and end” harassment or any other unlawful discrimination under the Fair Housing Act. As discussed below, hostile and harassing environments oppressive to women, people of color, disabled people and other protected classes are all too common in HUD multifamily housing, particularly in buildings housing elderly/handicapped tenants. The proposed rule, when adopted, will bring new hope to vulnerable low income tenants that they will have new tools to fight back, and that HUD is on their side.
For example, NAHT tenants were thrilled in HUD’s recent intervention at a Wisconsin development charging the owner/agent with failing to maintain a safe environment for a disabled tenant harassed by another tenant in the building. Along with publication of a strong final rule, awareness that HUD could sue to enforce tenants’ rights in these situations will send a strong signal for owners and agents to address what is unfortunately an epidemic problem in HUD housing.
Overall, NAHT supports the proposed rule, and endorses the recommendations filed by the National Housing Law Project. NHLP suggests that the rule could be strengthened by highlighting, in the Preamble, additional examples of potentially harassing, unwelcome conduct that could give rise to FHA liability. In our remaining comments, we want to suggest two additional “hostile environment” harassment examples to add to the Preamble, to address widespread and typical experiences of harassment which have come to NAHT’s attention over the years.
Harassment of protected class tenants who assert tenants’ rights. HUD’s Model Lease enumerates a number of rights tenants have in HUD housing, including “just cause” eviction protections, the right to “quiet enjoyment” of a tenants unit, access to common facilities, and the Right to Organize and form independent tenant associations, referencing HUD’s regulations at 24 CFR Part 245. Unfortunately, in many HUD multifamily developments, these rights are routinely ignored or flouted by owners and their management agents. In particular, tenants, mostly from protected classes, who attempt to organize an independent tenants association as encouraged by Part 245 are frequently targets of retaliation, harassment and real or threatened eviction.
NAHT and its local affiliates have long sought to aid tenants in their communities to address this problem, and to take advantage of the Part 245 protections won by NAHT advocacy over the years. But in the absence of support from local tenant assistance or legal assistance groups, in most of the US tenants struggle to form tenant associations at their peril. NAHT has received hundreds of calls from tenants in almost every state reporting harassment by management and owners when they attempt to organize. In the South, this is compounded by the legacy of racial hierarchy and oppression which is often replicated in the internal power relationships between management and tenants within HUD subsidized developments.
The stories are strikingly similar. One or more tenants, typically from a protected class (disabled, person of color, and/or female) in a HUD subsidized elderly/handicapped building has found the NAHT website or Part 245 regulations on line, and want to form a tenant association to work with management to improve the development and discuss tenant concerns. They attempt to approach the on-site manager (frequently a resident manager) who reacts with hostility, threats or contempt. Recent callers have reported declarations that “we don’t allow tenant associations here”, tenant meetings cancelled by management flyers, or threats to terminate or evict tenants who attempt to organize a group. Denial of the community room, or excessive charges for its use, are commonplace, as are attempts by on-site managers or their employees to attend tenant meetings uninvited and to tear down or destroy tenant leaflets announcing meetings. Often, an atmosphere of physical intimidation by on-site maintenance workers, who act as management “spies” and enforcers, accompanies management hostility and attempts to “crash” tenant meetings.
NAHT has taken recent calls from an African American tenant in Florida who had moved there from the North and reported a “plantation atmosphere” with threats of retaliation and eviction from a white manager if she attempted to organize; a disabled tenant in Wisconsin who was told that he could be evicted if he pursued his rights as a tenant to organize a group; and a disabled, African American tenant in Atlanta who was told “we don’t allow tenant associations” in a mixed income Project Based Voucher development, by the on-site property manager, with support in this case from the Atlanta HUD Multifamily Office.
In Worcester, Massachusetts, disabled tenant leader Joel Dress at Fruit Sever Apartments is fighting off a retaliatory eviction for his efforts to form a tenant association, in a development where the owner’s management agent filed bogus charges against a MAHT organizer (dropped in court) and the owner has indicated that MAHT staff will be arrested if they step foot in the property; the owner’s thuggish maintenance worker follows tenant leaders in the hallways and reports their movements to management.
The climate of fear and intimidation which pervades too many HUD housing developments nationwide is profoundly undemocratic, and un-American. Many low income tenants live in fear that if they protest or complain, they will lose their housing; tenants from protected classes such as women with children, the disabled, or tenants of color who would face discrimination on the private market are, and feel, especially vulnerable to the fear of eviction. Too many on-site managers and owners take advantage of this to reinforce their power at the expense of tenants’ right to “quiet enjoyment” and the Right to Organize.
The proposed rule could help enormously by enabling protected class tenants who experience this form of harassment to find new avenues to challenge harassing conduct and to potentially enlist HUD as an ally. Accordingly, we request that HUD add two “scenarios” defining harassment of protected class tenants who attempt to assert their individual rights (complaining to government agencies) and the Right to Organize (attempting to form a tenant committee) as examples that tenants could grieve under the FHA.
In particular, by clearing a path and encouraging protected class tenants to organize, HUD will help “level the playing field” and empower tenants to better fight back against management-sponsored or supported harassment, across the board.
Clarification that “bullying” conduct is a form of prohibited harassment. For many years, NAHT organizers and leaders have grappled with the problem of “bullying” behavior by tenants on tenants, management on tenants, or both, particularly in high rise elderly/handicapped housing, a significant part of HUD’s remaining multifamily portfolio (Section 202/811 housing, PRAC, Project Based Section 8). The phenomenon parallels the problem of bullying found in similar closed institutional environments, such as middle or high schools, the military, prisons, and some work environments. In senior/handicapped housing, the problem is compounded by the reality that this is typically the last place that low income seniors, often with few family, will live, with few real options to leave.
As pointed out elsewhere in these comments by Jerry Halberstadt of the Stop Bullying Coalition, bullying is a specific form of harassment that is an attempt by one or more people to aggressively control others through behavior and actions, repeated over time, based on or seeking to create a power imbalance and that are harmful to victims. A “closed” institutional environment is often conductive to bullying behavior, since victims feel they have few options and aggressive conduct can be magnified in a small social environment. Bullying can be individual or group bullying, and can be institutionalized as “mobbing” if reinforced by authority figures (such as a property manager).
In Massachusetts, NAHT’s local affiliate, the Mass Alliance of HUD Tenants, has partnered with the Stop Bullying Coalition to develop a policy response to address this problem in senior/disabled subsidized housing. MAHT has filed legislation modeled on Massachusetts pioneer anti-bullying legislation for public schools. MAHT’s proposed legislation define bullying (including cyber-bullying) and “mobbing”; mandate procedures for staff and administrator training; establish reporting and grievance mechanisms; create sanctions for violators who “bully” others, particularly vulnerable “protected classes”; and engage the state Attorney General’s office for appeals. NAHT has sponsored workshops for the past few years at its annual conference and learned that “bullying” in HUD senior/disabled housing is a widespread problem nationwide. Having a backup enforcement regulatory framework, as in the proposed HUD rule, would be enormously helpful, at least to protect tenants from protected classes.
Some recent calls fielded by NAHT should underscore the pervasiveness of this problem. A 62 year woman, a recently retired professional, had just moved into a senior building in Louisiana and immediately encountered a “bullying” male tenant who confronted and belittled her on a daily basis, with verbal and threatening behavior; she commented that she “hadn’t felt this way since she was 8 years old”. A Michigan tenant was constantly stalked by a threatening male tenant who verbally abused her with sexually derogatory language; the on-site female manager refused to intervene, reportedly because she, too was threatened and intimidated by the male abuser. At Blake Estates in Boston’s Hyde Park, an otherwise model elderly development was plagued by a “clique” of racist whites who harassed predominantly African American, Haitian and Latino tenants who dared to encroach on their “turf” or who tried to lead an independent tenant association. The proposed rule should help tremendously to give individual tenants in such situations a stronger line of defense, with HUD intervention.
More complicated are the frequent situations where the on-site management actively colludes with tenants who bully other tenants. In the late 1990’s, NAHT’s former Board member in Lowell, Massachusetts, Barbara Tucker, a frail but courageous older woman, attempted to organize the tenants at Centennial Island, where she lived. The on-site manager, the wife of an owner later found to be “equity skimming” the property, had maintenance workers tear down Barbara’s flyers, towed the cars of organizers invited by Barbara to the building, and posted a management flyer under glass covered bulletin board viciously and personally attacking Barbara and maligning her efforts publically to other tenants. Simultaneously, a “clique” of management-favored tenants who dominated the community room all day, verbally assaulted Barbara whenever she entered the room, and arranged to post unsigned flyers on Barbara’s door with ad hominem attacks maligning her character and efforts. Barbara’s health, as well as her safety, was seriously threatened by this harassment.
In this case, and many others brought to NAHT’s attention over the years, a “bullying” clique of tenants dominating use of the HUD subsidized community room was allied with the on-site manager, who egged on and contributed directly to the bullying behavior in order to crush efforts by a tenant leader from a protected class to organize residents independently of management control.
In many cases, the on-site manager (often untrained, unsupervised and underpaid) feels an out of proportion sense of “power” over vulnerable tenants and exercises it in an unchecked, dictatorial manner, particularly to more vulnerable “protected classes.” This problem is usually worse in cases where the on-site manager lives in the building with his or her family, and comes to feel as if they “own” the place and can just make up the rules.
We believe that this scenario is more common than many realize, particularly in elderly/disabled housing. Accordingly, we recommend that HUD, in the final rule, provide one or two examples of these common “bullying” scenarios of “hostile environment harassment” in the Preamble, better to empower tenants and provide guidance to owners, agents and HUD staff.
In closing, we applaud HUD for its path-breaking and exciting proposed rule. We urge HUD to issue and publicize a final rule as soon as possible, augmented by additional discussion of harassment scenarios in the Preamble. NAHT will be happy to join HUD in publicizing and implementing the new rule when it is final.
Thank you for your consideration of these comments. Should you have any questions or if we can help develop the scenarios recommended above, please contact me at email@example.com or 617-233-1885.
Michael Kane, Executive Director
National Alliance of HUD Teannts