our second case for this morning is what's so against glen st andrew living community discrimination in renting out their properties and to ensure the equal housing opportunity of their tenants was wetzel is seeking to hold firm landlords to that obligation she brought this case for two reasons one to put an end to the months and months of relentless verbal and physical harassment threats and abuse she experienced because of her sex and sexual orientation now that it is four incidents she regularly reported to that's interesting your honor of the facility and you all say this is there's nothing new here and yet i don't see any case cited in which the landlord was held liable for tenant on tenant harassment so you're right you honor that none of them in the end had reached that conclusion but the eight circuits ruling in new decker vs boss player and the cases that have cited that both in the circuit and across the country following suit have recognized the viability of such claims moreover the case is in this court that have recognized the viability of a hostile housing environment claim did so in recognition of the i don't nearly identical language and require parallel application of claims under the  don't foreclose your theory but this seems to me like a pretty dramatic extension and it took a long time under title seven for people to realize that housing  a landlord confronted with a complaint like this what options does the landlord have that depends your honor and the question of the scope of the landlord's authority and ability to take action is a matter of fact is something that the trial court is if fully within its capacity to assess and determine what you know is that going to depend on the language of the lease for example so i'm thinking in this particular case least not only included what i'll just call the right to live in her apartment but it included three meals a day it included substantial rights over the comment to participate in the common areas the dining room the meals the laundry room the lobby and that this harassment actually largely seems to have occurred in those common areas that's true your honor and the tenants agreement is one source that that the trial court will be able to look to both in terms of what exactly the terms and conditions were and what the privileges were and the facilities and services that are open ended so what happens if we agree with you and landlords respond by the hud worried about this possibility landlords respond by accident putting provisions in the lease but we are undertaking no duty to protect you from verbal harassment by other residents or physical harassment certainly so that as i was saying the tenants agreement is one source that the trial court can look to but the fair housing act itself imposes obligations on the landlord and as the amicus brief actually from a r p was really helpful in laying out some of the practical tools that landlords and in particular senior living communities have at their disposal there may be written warnings there may be there may be a rent abatement there may there who are maybe moving the harasser to another facility th used whether it has to do with sexual orientation or sex or race we have seen these cases from around the country each of the tenants complains to the other to the landlord about the other as i understand the hood regulations the landlord is not allowed to take any corrective action against the complaining party right certainly not in response to the particular complaints that's correct right so what if well well so what if what if the landlord gets competing complaints about race or sex from two tenants complaining about each other well your honor i think that's something that's uniquely within the capacity of the district court to sort out what's a later going to have to do a little better than that when you're talking about imposing a very substantial liability on a landlord who doesn't get it exactly right and right so you must have some analogies to work places there because this this does happen in workplaces what i have a different kind of question about the hud regulation which is suppose hud tomorrow decides that this was an ill conceived regulation and abrogated effective immediately does that do anything to your case no your honor it doesn't and if i may just take one last moment to respond to judge hamilton a question i think the important thing to remember here is that this requires an allegation of severe and pervasive harassment that is animus bait as to the word is or in all or that's correct your honor thank you title seven it's severe or pervasive harassment and that has the effect of completely up and encourage equal housing opportunity and so when you've got something that devolves into just a dispute between neighbors that's not something that's actionable under the pear housing act so we put to one side the verbal as folk of this and just said  landlords maybe could have picked both people if they devolve into fisticuffs or if they are physically assaulting one another getting on each other in other ways misbehaving with that be possible i think that's conceivable violate the rules of your apartment building if you cause destruction to the property there may be ways in which there can be penalties imposed with the in the housing any due process requirements from this isn't a state actor so no i would say the discrimination well that's something that's explicitly authorized by the fair housing act which allows private individuals to snow but your response to judge hamilton was a good nepal it doesn't apply in terms of the ability of a landlord to to impose penalty is on the tenant so that you later not deposit you know and if if the if there's a man i could imagine maybe we're getting a little bit far afield but we all know that landlords have the power to regard certain conduct as grounds for a fiction so if one of the tenants is using illegal drugs in their unit pretty much every lease i can think of says we get to a victory for that maybe there is you know if  somebody is smoking in their unit maybe you can say even though that's not illegal per se is not in the same way that using cocaine would be we can evict you for that maybe if you say you know you've been assaulting the other tenan s you are beyond what we have what put our contract is so the fair housing act which is part of the broader civil rights acts doesn't pose a duty of nondiscrimination we said in  holds that that extends beyond the moment of signing the lease or the moment of purchasing the condo so i think you can i mean there are there actually suggestions in some of the briefs about what steps might be taken some steps might go too far you know i don't know about fining that sounds if it's not built in say you know you can take deposit of somebody destroy this part of the apartment you know there cigarette ashes all over the rug and they have to fumigate the place and put a new rug and well sure you take a deposit the other point your honor as i think that these are these are matters that are well within the authority of the trial court to sort out based on the particular search status of the case at this point that we're slowly could i ask and where those words rise to the level of purpose of perpetrating severe and pervasive harassment of that's no longer in the realm of protected speech so i mean so you're saying if somebody were an employee of of the federal housing administration and that person's co employee used hateful racial epithets against him day in and day out day in and day out that the f h a would be employer has control over both employees and question that's why i asked about hateful speech that fall short of fighting words that would not be protected under the first  think the question under the fair housing act is really precisely that is whether the speech has risen to the level of severe or pervasive harassment that disrupts that sufficiently interferes with the so with equal housing  may be warranted for to the housing provider had a particular president or presidential nominee that they supported and there was very very nasty things said about it and amounted to harassment is that subject to the same thing no your hon so essentially that i think what these questions are getting at is to what extent is there a theory of harassment in the fair housing act and i think your honor the response is that is identical to the theory of harassment under title seven which is well established and there is not a first amendment to defense to being fired or being in for engaging in discriminatory general employers can a public employee or fire  environment then yes but here again we i want to be clear we're not talking about asking the landlord to take responsibility for what the other tenants have done we're asking them sorry i thought that was exactly what you know your honor this is not vicarious liability this is direct liability for their own negligent refusal failure to stop that's correct ok i don't see a big difference there but it least once the landlord has notice but  which can be in the title nine cases a critical moment because the landlord might not have any new this if somebody is just being rude day after day in the dining room that's right there's no there's no question about the clarity of and there's absolutely no duty on the landlord for things that the landlord knows nothing about rebuttal all right why don't you sit down and i will give you a couple minutes from about you mean please the court i'd like to remind the court that the plaintiffs not allege that the defendants here acted with discriminatory intent or animists and the same is true of all people who are caught up in sexual harassment cases when it is call employee supplier customer base the problem in those cases is that when the employer is told about it employer does nothing about it and that's that's the model we have here nobody is saying that glenn st andrew had to stand there and applaud when mr hurd knocked her out of her chair but she complains to them and they shrug their shoulders they just don't do anything and i just i would like as you present your argument for us to focus on the physical acts of violence she suffered since this is certainly not a speech only case all right but i think there's an important foundational element of principle here that seems to be getting conflated and i think going back to our foundational elements situation here let's talk about holly versus myers first and then burlington because they're critical to understanding the liability in holly first as myers the court explained that the f embodies traditional tort principles but not modifications of it and in holly you may recall the they tried to impose liability on the corporate shareholder and the court said under traditional principles of liability the corporation is liable for the for its employee but rather the shareholder and you can't because there is no agency relationship agency relationships i know you focus on this quite significantly in your brief that's not the only kind of relationship that exists there is at a minimum a contractual relationship between a land absolutely and lord and a tenant and part of that contractual arrangement is furnished by law the implied warrantees of habitability of quiet enjoyment part of it is imposed in the written lease and if you're trying to tell me that a landlord has no authority to say to a tenant a you may not deprive tenant b of access to the common areas i would not change it had to relocate with yes it is that's that is the gist of your argument because that is what mr her was doing he was pushing her out of her chair or causing her to be injured and constructively a victim her from the common areas of this building she's she can't go in the lobby to buy her coffee she's afraid to go eat in the dining room so it's it's not quite the same as an employer employee where there's a principal and an agent but here we have a contractual relationship where party a is giving access on certain conditions to party b and i'm going to address both those i need to address the agency issue and then it can vouch that i'm already off the agency issue but i know that a  landlord is not an agent of a tenant but i don't board can say you can be a tenant in my building only on certain conditions only on the condition that you don't smoke in your room only on the condition of it you don't use cocaine in your room only on the condition that you don't assault other people whether they are visitors whether they are tenants in the common areas and if you violate those conditions then we no longer have a deal the hud regulation and not talk about the hud regulation because i frankly don't think it has anything to do with this case direct liability for de legend's that is what has been raised here and that's what burlington speaks to and that's what goes to the well aware of burlington having been through all of the faces of lincoln you're speaking to the person on the panel of the original three judge panel before it went to the in bank order produced a two hundred nine page opinion it happens to be agency but i don't see anything that says only if it's agency yes the supreme court look to the restatement of agency to at that time the restatement second of agency was the best one  r but i don't see anything that says as part of the contractual relationship especially given the fact after block against thresholds that the fair housing act applies it's not because that's not agency knows that's not actually what you're arguing you know i think that there let's look at the landlord tenant relationship it's contractual in nature as you point out it's two independent parties and it's housing act so the landlord has some duty that are redress a bill in conventional toward absolutely tenant and if the landlord fails to live up to those duties it ten cases the landlord is told about what's going on and the landlord dismissive the landlord says we are making a conscious decision not to do anything it's a little bit like the glisten case that we had in a somewhat different area where a decision not to act is an action i understand is there a duty of the landlord to intervene in a private dispute yes when the private just spew means that somebody is being thrown out of on  basis of a protected characteristic being cynical use salted in the common areas of the facility how can there not under the fair housing act be a duty to intervene would you be making the same argument if it was a racist ten complains to the landlord landlord says oh well that's just life is hard because now you have you have given a hypothetical where thirty six seventeen is being violated  then bring an action but again against the harasser no against the landlord why because the landlord had the power to take action chose not to take any action is maintaining a harassing in this instance a racially harassing i think the place you know that i think the police can intervene i think that they the  victim can bring actions against the harasser but i disagree that that's a gentle theory the landlord has a duty because if you look at illinois law and landlord law so no hear their religion because of their race if if this is if they fail to act because of discriminatory intent then it's actionable and that's why discriminatory intent is such an important part of the element of the statute and one of the problems here is even if you are saying and i think the case is to say that if it landlord fails to take action but what i think what you're really saying is the landlord contractually needs to take these actions based on on contract partly contract partly of the warranties of habitability and quietly joined then partly because it's very interesting act you i'm having trouble seeing where you think the fair housing act actually applies to this situation you find i understand you correctly you don't think it does i think that the fair housing act governs the behavior fair housing act was enacted to provide access to housing primarily antic the purpose is to eradicate intentional discrimination and thirty six zero four she says you can't have discriminatory conditions and terms accept in the lease and that directly impacts the landlord and the landlord must comply with that in its agents must comply with their and separate and apart from that thirty six seventeen is unique to title eight it's not there for title seven title thirty six seventeen says where this pervasive severe or pervasive conduct rises to the level that it's violent and intimidating and would drive a person from their home it's actionable against the harasser where do you say actionable against the landlord we have also recognized first of all that something short of constructive addiction and now she has actually been constructively affected areas you know not from her let's back up there i know she has it in she she  ges that she doesn't dare go down there she has some what we had today a ring of objective and subjective here what we have is a situation where two elderly people go out every time they get in close proximity to each other let's not physically i believe what this there were two instances and she's on a powerful motorized scooter and he is feeble enough that he has to be in a walker and they did collide it's true but you are but the word that we have to take the allegations in the complaint and your opponent says you have used the word collide that's not the allegation in the complaint and so at the moment we're stuck with that you might be able to prove what you're saying  you the questions on some aspects of the case that trouble me on your side miss houghton the retaliation claims are being asserted under thirty six seventeen right did you move to dismiss in the district court of any ground other than the failure to a ege intent is your brief talks about causation too much time no adverse reaction were those issues raised in the district or they were not raised by the plaintiff and they were not i don't believe that was your motion i ok now the thing that concerns me here is that you seem to be reading walk in the east miller decisions as if there's a kind of dual intent requirement for retaliation claim yes and i guess i'm not seeing how you here because that among other things would be unique in federal retaliation law ordinarily it's just enough to allege and then prove the intent to because if you're moving under thirty six seventeen thirty six seventeen has a discriminatory intent requirement and you can't just throw that out the window even if it's even if the barrier for it is that different from any other the move retaliation provisions are pervasive in federal law yes they are many others that have this dual requirement i have to be honest with you i haven't looked at others i only looked at the case law that i can find with respect to retaliation in the fair housing context and then i also wanted to check with you you've argued on this this question of landlord liability for tenant on tenant harassment you've argued that the statutory language does not allow for this liability in particular in your attack on the hood regulation and yet there can be employer liability for failure to protect an employee from customers from outside actors as well who are not the agency absolutely because because the employer controls those employees and controls that environment trolls are the sort of players and the customers he controls the workplace that he forces the employees to come to if the employees have come agreed to that's why the employer has a duty to protect the employees right for those landlords get to tell the tenants how they're supposed to think and when they can no get enjoy the land are they and how do you monitor that two strangers two guests who come in and start punching each other i bet you would say the landlord could throw them out t guests because the landlord controls the premises and if one guest comes in and takes a swing at one of the tenants the landlord also has the ability to control that you would have you would have that ability to call the police and have the man known and also yes throw them out yourself just like stores can throw out shop absolutely without the police coming so anyway i'll let you want to wrap up and we will just briefly what's the size of that how many people are in this facility i don't know the answer to that question and i thought the records show that there were about one hundred two independent living units and maybe about thirty three a some further something in that region i believe judge would obviously knows the it well and if you can't tell me how many there are you probably i might be able to give it a try what's what's the physical layout how it is set up what describe the facility i can because i went out to look at it because i was curious about the dining room incident and it's a rectangular for example the dining room is rectangular there are small tables of four so people with wheel chairs can get to them they're identical there isn't one that's better or worse than another the hallways are are floors where tenants have their apartments and then they have multiple areas gathering areas yes there is a front lobby but there's a back to back area as well there's  includes a fifty five that intermediate care unit forty seven units of assisted living in one hundred seven independent living apartments which are intended as residences for older adults and i don't know whether you can test adapt that's what it's alleged thank you your honor no absolutely based on highly yes and carry we've we've we've gone past that issue but there is a circuit split at this point under title so i think unless somebody has questions which counsel frank longer thank you your honor a couple of points i'd like to address one is that i agree with you that in the long run the hood rule is irrelevant to this claim was brought pursuant to the statute the complaint was filed a month before the the rule came down and consistently ms wetzel has simply urged that the rule supports her interpretation of the statute which is support this complaint came before this complaint shame before it and it came after the motion to dismiss as well so it is not the basis for her claim but it certainly supports her claim and frankly from this what's his perspective as addressed in the brief is a rule that is worthy of deference from this court that what seems to be so you are relying on and we agreed that it supported in is worthy of it but frankly if your honour's took no notice of it nonetheless her claims would proceed directly under the statute the we talked about the ownership so several different corporate entities the precise contours of the owner ownership of the land and of the building themselves and the management of the building are what set forth in the complaint and the corporate entities m grant so what do you think the answer is so your honor the source of the duty is the fair housing act itself the fair housing act itself makes it unlawful to discriminate because of the protected traits and it imposes the obligation to eliminate discrimination on a housing provider the contractual relationship that the chief judge was referring to goes precisely to the power of the landlord to provide a remedy to control the environment as exactly as you  previously here we have a clear duty we have allegations of the defendant's ability to control and the precise contours of that is something that will get sorted out by the trial court there is one other point that i wanted to address and that is the dual intent requirement you had previously said there is no dual intent requirement anywhere in the language with regard to retaliation claims but frankly your honor there is no dual intent requirement anywhere in the statute the only thing that the statutory language requires is that the discrimination happened because of the protective trait here we've got ample allegations that the harassment was fueled by discriminatory intent and in refusing to take action to put an end to the hostile housing environment the defendants have discriminated because of her sex and sexual orientation and it's very clear your honor no one has disputed that the highly interpretation of the scope of federal sex discrimination protections applies both counsel we will take