LGBT Tenants Protected By Fair Housing Act: Federal Appeals Court

NILES, IL — A federal appeals court ruled Monday that a landlord can be held liable under the federal Fair Housing Act for failure to protect LGBT tenants from harassment. The 7th U.S. Circuit Court of Appeals reinstated a case against a Niles senior living facility brought by a local woman who complained of a pattern of harassment based on her gender and sexual orientation.

Marsha Wetzel, 70, moved into Glen St. Andrew Living Community in November 2014 following the death of her partner of three decades, estrangement from the family of her late partner and eviction from their Skokie home, she has said in interviews and court filings.

When Wetzel first moved in to the facility near the corner of Milwaukee and Touhy avenues, she said she got along well with other residents. But when they learned she was a lesbian, she was subjected to verbal and physical abuse from fellow tenants of the for-profit, private facility, according to her suit. Filed in June 2016, it sought relief under federal housing law and the Illinois Human Rights Act.

U.S. District Court Judge Samuel Der-Yeghiayan dismissed the case in January 2017, ruling that Wetzel's lawsuit "does not allege any facts that suggest any actions taken against her by [Glen St. Andrews] that were based on her gender or sexual orientation" and failed to "cite any discriminatory animus, motive or intent" on the part of the facility and staff members named in the suit.

The Aug. 27 appeals court ruling by Chief Judge Diane Wood allows Wetzel's case to proceed without ruling on the merits of her claims.

"St. Andrew insists that the [Fair Housing] Act affords Wetzel no recourse, because it impose liability only on those who act with discriminatory animus," Wood wrote, noting Wetzel had not accused staff of blatant homophobia themselves but rather failing to act properly in response to virulently homophobic fellow residents. "The district court agreed and dismissed Wetzel's suit."

But in a unanimous 20-page ruling, a three-judge panel on the 7th Circuit disagreed, finding the abuse alleged in the suit to be "both severe and pervasive," according to the ruling.

"We read the FHA more broadly. Not only does it create liability when a landlord intentionally discriminates against a tenant based on a protected characteristic," Wood wrote. "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."

Wetzel said the ruling was a major victory for efforts to ensure senior living facilities must be safe for all residents, including LGBT senior citizens.

"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 a statement released in response to the ruling. “That’s not too much to ask. No one should have to endure what I endured because of who I am.”

In a statement released in response to the ruling, Glen St. Andrew said it was committed to providing housing that was safe and free of discrimination on the bases of race, gender, ethnicity, sex or sexual orientation.

“At this stage, the court was required to assume the factual allegations of plaintiff’s complaint were true for purposes of determining the legal issues," it said. "Glen St. Andrew strongly denies the factual allegations of the complaint and will present its case in court at the appropriate time.”

Karen Loewy, senior legal counsel for Lambda Legal, the LGBT civil rights group that brought the case on Wetzel's behalf, described the 7th Circuit ruling as a tremendous victory.

"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," Loewy said.

Now reinstated, Wetzel's case has been remanded to U.S. District Court for further proceedings. The facility could still appeal the denial of its motion to dismiss up to the U.S. Supreme Court.

Related:

• Niles Case Tests LGBT Housing Discrimination In Federal Court
• Resident at Senior Facility Assaulted, Harassed for Being a Lesbian: Lawsuit
• Lesbian Claims Abuse at Senior Living Facility in Niles