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New Fair Housing Rule Cites UK Law Professor's Paper

September 26, 2016
By: Whitney Harder

In a final rule formalizing new protections under the Fair Housing Act for sexual and other forms of harassment in housing, a paper by University of Kentucky College of Law Professor Robert Schwemm is cited by the U.S. Department of Housing and Urban Development.

The rule is titled "Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices under the Fair Housing Act." It specifies how HUD will evaluate claims of "hostile environment" and "quid pro quo" harassment in both private and publicly-assisted housing.

According to a HUD news release, the final rule includes: 

  • Formal uniform standards for evaluating claims of hostile environment and quid pro quo harassment in the housing context.

  • Clarification as to when housing providers and other covered entities or individuals may be held directly or vicariously liable under the Fair Housing Act for illegal harassment or other discriminatory housing practices.

Schwemm's paper, "Fair Housing Litigation After Inclusive Communities: What's New and What's Not," was published last year by the Columbia Law Review and analyzes the effect of the Supreme Court’s Inclusive Communities ruling – which upheld disparate-impact claims under the Fair Housing Act – on future housing discrimination cases.

The HUD rule cites Schwemm's paper for "explaining that many post-acquisition actions, such as evictions and harassment, may give rise to violations under sections 804(a) and 804(b) of the Act."

The new regulations appeared in the Federal Register on Sep. 14 and will become effective on Oct. 14.

Schwemm is known for his treatise "Housing Discrimination: Law and Litigation," which is considered the premier work in the field. His work prompted HUD in 2013 to adopt new regulations endorsing use of the “discriminatory effect” standard under the Fair Housing Act. Schwemm has represented plaintiffs in three housing discrimination cases before the U.S. Supreme Court and is often cited in fair housing litigation. He has taught at UK since 1975.