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sentatives or employees. One might not
expect that an association can be liable
for harassment caused by one resident
against another. When an association
board or manager knows, or should
know, that harassment is occurring,
even between unit owners, it must take
prompt corrective action to address it
or the association may be liable for
discriminatory housing practices.
What constitutes sufficient corrective
action in the community association
context is not defined in the new HUD
regulations. It most certainly will include
offering alternative dispute resolution to
any residents and unit owners involved,
something that is already a statutory
obligation for community associations in
New Jersey. A board may need to cre-
ate written policies against harassment
and, when possible, impose fines and
suspend membership privileges for vio-
lations. For associations with employ-
ees, corrective action may require sen-
sitivity training, disciplinary action, and
even termination. Harassment may
be rare in community associations and
while not all associations will want to
implement such policies proactively, all
must watch for conduct that may trigger
the obligation to do so.
Balancing Free Speech:
With this obligation to act comes an
important caveat. When evaluating
conduct to determine if it is unlawful
harassment constituting housing dis-
crimination under these regulations,
board members and managers must
also balance an individual’s right to
free speech. The difference between
unlawful speech constituting harass-
ment against a protected class and
lawful free speech is not an easy call.
Conduct which is just offensive or
causes hurt feelings or words which
are spoken in the heat of the moment
are likely protected as free speech
even when directed at a protected
class. Conduct which involves coer-
cion, intimidation, or threats of bodily
harm or which is severe and pervasive
may not be protected as free speech
and may be considered harassment
when directed at a protected class.
While it’s important to understand
that not every disagreement or harsh
word directed at a protected class
in a housing situation will be unlaw-
ful harassment, it’s also important to
understand that certain conduct may be
unlawful and that the association has an
obligation to take some action.
DISCRIMINATION...
from page 24.
CONT I NU E S ON PAGE 68