On August 27, 2018, the Seventh Circuit Court of Appeals reversed an Illinois District Court in holding that a seventy-year-old homosexual woman could maintain her Fair Housing Act (FHA) claims against retirement community, Glen St. Andrew Living Community, for failing to take reasonable steps to prevent the “torrent of physical and verbal abuse from other residents” allegedly suffered by the plaintiff because she is openly lesbian.
The plaintiff’s complaint alleges that she routinely reported incidents of rampant verbal and physical abuse from other residents of the nursing facility. According to the plaintiff, her complaints were dismissed, and she was branded a liar and continued to be discriminated against. The complaint further alleges that the nursing home retaliated against the plaintiff by providing her with less desirable amenities, barring her from common areas, halting her cleaning services, and even physically assaulting her.
The Court of Appeals cited to its 2017 decision in Hively v. Ivy Tech Community College of Indiana in holding that discrimination based on sexual orientation applies equally to claims under Title VII or the FHA.
Most notably, the Court of Appeals held, “Not only does [the FHA] 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.” While the Court acknowledged that the plaintiff was in “uncharted territory,” it was satisfied by prior U.S. Supreme Court interpretation of analogous anti-discrimination statutes that the plaintiff’s claims were covered by the FHA.
Of most interest to the health care industry, the Court left the door open for analysis of sexual orientation claims against proprietors of traditional nursing homes and hospitals under anti-discrimination statutes. In dicta, the Court stated, “We say nothing about the situation in a setting that more closely resembles custodial care, such as skilled nursing facility, or an assisted living environment, or a hospital. Any of those are different enough that they should be saved for another day.”
The Court’s comment is telling, and based on its interpretation of the FHA in this case and its 2017 Hively decision, it is quite possible that, at least in the Seventh Circuit, a hospital or nursing care employer could be held liable for sexual orientation discrimination or retaliation claims for failing to adequately respond to harassment complaints made by patients.