1343288_clapper_for_door Case goes to MCAD and AG

June 2012

 Part I:

The story

The Massachusetts Attorney Gen­eral (AG) found a Worcester landlord guilty and fined him for racial dis­crimination because he “failed to stop” racial harassment between two neigh­boring tenants, one black, one white, who got into a fight in his three-family house that he owned but did not oc­cupy. The landlord, himself black, had traveled all the way from West Africa to achieve the American dream, but instead found himself in a nightmare.

The case went first to the Mas­sachusetts Commission Against Dis­crimination (MCAD), which found against the landlord, and then to the AG’s office, which affirmed MCAD’s conclusion.

But nothing in the law quoted in support of MCAD’s and the AG’s con­clusion says that landlords must take action in this situation.

Do landlords really have to inter­vene and take action if one tenant is racially harassing another? What if they simply take no action? After all, landlords have no police power. Only the government has that.

Reasoning fails

By coincidence, the tenants involved in the conflict had previously been roommates. Since one was black and one was white, it’s hard to imagine that either one of them was racist.

The trouble started in August 2010 when the black tenant, a mother with a husband and three children, owed the landlord $850 in unpaid rent. The landlord first tried reasoning.

“Oh my sister, what happened?” he said. “You haven’t paid your rent. Can we work something out?”

When that approach did not work, he told the tenant that he would have to take her to court. According to the landlord, the tenant threatened him: “If you want your rent, I’m a broker. I will make your life miserable.”

The landlord nevertheless went to court and eventually won a judgment for the unpaid rent and for possession of the apartment. The tenants left and never paid.

Complaints unfounded

The two tenants had lived in their respective apartments for at least a year without any complaints. Two days after the landlord asked for the unpaid rent, however, the black tenant complained to the Worcester health board three times in succession. She complained about mice in the apart­ment, a faulty dryer vent and a “haz­ardous” garbage disposal, all of which the inspector found not to be problems. So far it was the typical free rent trick.

Dueling restraining orders

Shortly after, the black tenant got into a fight with her former white roommate. The white tenant went to court for a restraining order, telling the judge that the black tenant threatened to kill her. She received a restraining order against the black tenant on August 23, 2010.

The very next day, the black tenant also filed for a restraining order, claim­ing the white tenant threw eggs at her car, called her derogatory racial slurs and threatened her.

“She [the white tenant] hates us and wants us dead…I am the victim.” The restraining order was granted.

All in all, it was looking like an interpersonal conflict between former roommates and not racial harassment. Moreover, there was another black tenant on the first floor in the same building, and the landlord said there had been no problems between that tenant and the white tenant.

Police involved

When he heard about the black ten­ant’s restraining order, the landlord hurried over to check out what hap­pened. But there was no evidence of the egg-throwing incident or anything else. Nevertheless, he told the white tenant that he did not approve of any harassment or discriminatory behavior of any kind and that he would evict tenants for such behavior.

The white tenant replied that the situation was reversed, that she was in fact being harassed by the black ten­ant, who was making up stories about her. She said the black tenant was retaliating because she had overheard the white tenant saying she was going to tell the landlord that the black hus­band was a drug dealer, which could compromise the safety of the building.

So far it was just one person’s word against another’s. The landlord felt he could not evict the white tenant solely on the basis of the black tenant’s complaint.

Shortly thereafter, the black tenant called the landlord screaming that the white tenant was going to kill her. The landlord drove over and told the black tenant that she needed to call the po­lice immediately if she felt she was in such great danger.

“No, I will defend myself,” she re­sponded. If she didn’t want to call the police, was she really in danger, or was she making up a story?

The landlord then called the police himself. The police said the two ten­ants were “playing games” and told them if they had to come to the build­ing again, “One of you is going to jail.” The police did not conclude which ten­ant was at fault.

MCAD complaint

The black tenant moved out at the end of August 2010. She then filed a complaint against the landlord with MCAD, claiming that he did not do anything when she complained about racial harassment from the white ten­ant. (Not true. He told MCAD that he spoke immediately to the white ten­ant saying he would evict her for such behavior, but that he did not have any evidence at that time. He also called the police on the tenant’s second call to him.) The black tenant also claimed he evicted her for complaining about the white tenant. (Not true. He evicted her for nonpayment of rent.)

MCAD agreed with the landlord about why he evicted her and also about a few other false charges by the tenant, but MCAD decided against the landlord on the complaint that he did nothing to stop the white tenant’s alleged racial harassment.

So far it was one tenant’s word against another’s. Was he to evict the white tenant immediately based solely on the complaint of the black tenant?

MCAD gave the landlord a choice: settle with them or have the case re­ferred to the AG’s office. He did not settle with MCAD, hoping to get fairer treatment from the AG’s office.

Trouble at AG’s office

His hopes were dashed. The AG’s office agreed with MCAD that the landlord “failed to take action to stop his other tenants from making discriminatory statements and threatening and ha­rassing…on the basis of race and color.”

“This is completely untrue, I did everything that I could do,” says the landlord. The landlord spoke sternly to the white tenant at the time of the alleged egg-throwing incident, and later called the police when the black tenant said the white tenant was going to kill her.

To challenge the AG’s office in court would prove very expensive in at­torney’s fees, so the landlord decided to cut his losses and settle. In compliance with the settlement, he has already completed training on fair housing law through MCAD and paid $2,000 to the black tenant. In addition, for the next three years, he must put “equal opportunity” notices in any rental ads, keep records of all ads and all prospec­tive tenant applications, and notify the AG’s office of any discrimination complaints made against him. Finally, a $2,500 fine payable to the AG’s office is suspended providing he complies with the settlement.

Part 2:

MCAD jumps to conclusion

MCAD’s investigation in this case was seriously flawed. Its final written report recites the complainant’s al­legations and the landlord’s defense. Then in its summary it acknowledges conflicting testimony on the critical issue, saying: “Genuine issues of mate­rial fact in dispute exist whether other tenants racially harassed [the] com­plainants and [the landlord] failed to take immediate and corrective action.”

In other words, it wasn’t clear to the investigator that the white tenants acted in a racially hostile way nor that the landlord failed to act.

How did the investigator get to his conclusion against the landlord?

The report never says how. On seven different charges made by the black tenant for which the investiga­tor ruled in favor of the landlord, the report itemizes for each charge that there was “insufficient evidence” or “no evidence” or that the “evidence shows” in favor of the landlord.

And what about the critical issue – racial harassment by the white tenants and failure to act by the landlord – which the report admits had “genuine issues of material fact in dispute”?

There are no findings whatso­ever, no statements about what the evidence showed or did not show. The report simply jumps to the conclu­sion: “Probable cause is recommended against [the landlord] for discrimina­tion based on race and color.”

A proper report would have dis­cussed in detail why the available evidence, genuinely in dispute as it admits, shows racial harassment rather than interpersonal conflict, and shows failure to act despite the landlord’s claims that he warned the white tenant and called the police for the black tenant. Not a word like this in the report.

So the black landlord was found to be racially discriminating against his black tenant. The purportedly racist white tenant was let completely off the hook, a nonsensical outcome from MCAD.

Part 3:

Rubber-stamping by AG’s office

Curiously, when the case went to the AG’s office, there was no written analysis or report from the AG’s office reflecting it’s review, only the final settlement signed by the landlord. The landlord had the right to appeal the AG’s decision. But if there was no analysis of the AG’s review, upon what basis could he appeal it?

Several people in the AG’s office as­serted that the AG’s office does not just rubber-stamp MCAD’s reports when they are referred to them. They do an analysis of their own, they said. Where is the written analysis? The assistant attorney general in charge of the case confirmed, however, that there was no written analysis, only an internal memorandum.

“Why was there no written analysis so the landlord could decide whether to appeal the AG’s decision?” “I can’t answer that,” said the assistant at­torney general.

If there was any close examination of the MCAD report, surely the AG’s office would have found the unsup­ported conclusion described above regarding the critical issue in this case. It appears that the AG’s office was indeed blindly rubber-stamping MCAD’s report.

Disturbed landlord

The landlord is greatly disturbed and angry over the outcome, feeling it is an injustice. He went to law school for five years in his native country of Togo, had to learn a new language and had to find a new career in the USA. He currently works two jobs, seven days a week. Like many small landlords, no one gave him a penny to start his business. He has worked for everything he has.

“The state has all the power and all the money,” he says, “and if it stands against you, it has unlimited resources. I made an agreement with the AG [in order] to push this away, even though I am 100 percent sure that I haven’t done anything to these people. What I have learned is not to trust the at­torney general and not to trust anyone. As a landlord, if you have a problem with your tenant, no one is going to help you. The rent was $850 and all this cost me $4,000.” And a lot of grief.

Part 4:

Shaky legal basis

The landlord in this case did take ac­tion and the tenant conflict had all the earmarks of an interpersonal conflict, not a racial one. But the landlord was charged under Massachusetts General Laws chapter 151B, section 5, which says: “It shall be an unlawful practice for any person… to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so.” The forbidden acts are to discriminate on the basis of the standard categories: race, religion, ethnicity, age, sex, etc.

But note that all of these verbs – “aid,” “abet,” “incite,” “compel” and “coerce” – are words that indicate an affirmative action. One must DO some­thing. The exact meaning of “abet,” probably unknown to many, is “to actively encourage, to assist or support in the achievement of a purpose,” ac­cording to the dictionary. It also means “to spur to action.” To abet is to DO something active, like all these verbs.

According to the Attorney General’s charge, however, the landlord “failed to take action to stop his other ten­ants from making discriminatory state­ments and threatening and harassing the _____ family on the basis of race.”

“Failing to take action” is NOT tak­ing action. It is inaction. It appears that MCAD and the AG’s office have invented a new law and applied it to landlords, saying it is racially discrimi­nating to not act if someone else is be­ing racially discriminatory.

In this case, the landlord did take action, but that’s beside the point here. From this and other cases, it appears that the persons being discriminated against are landlords. And the per­petrators of this discrimination are MCAD and the AG’s office.

If the courts were to affirm MCAD’s and the AG’s interpretation of the law, it would seem that people walking along a street or in a hallway or attend­ing a party and overhearing racial epi­thets or other discriminatory behavior would have to call the police and report it, at the very least, and perhaps go up to the person doing the discriminatory acts and admonish them to stop and to get their name and address and other identification to report to the police, to MCAD or to the AG’s office. If they did not take these actions, they would themselves be violating the law and subject to prosecution for racist acts and fined if found guilty.

To require ordinary citizens to in­tervene in conflicts between any two other persons to enforce discrimina­tion laws seems highly invasive, puts huge burden on all citizens and would create an Orwellian climate, a police state where all eyes are on everyone. In the United States, ordinary “hate speech” is protected as freedom of speech. Only if the speech rises to the level of inciting or threatening violence does it become a violation of law. But then the victim can report directly to the police.

But what if landlords were required to act even if it is hate speech? What would they do? Besides admonishing a tenant, their only other power is to evict. Would they just take the word of the complaining tenant and evict on that basis? Surely not. That could lead to a wrongful eviction, exposing the landlord to a lawsuit by the evicted ten­ant. No, landlords would have to inves­tigate and find independent evidence. But what powers do landlords have to investigate? None. What skills do they have to evaluate evidence? None. The burden on the landlord is huge.

It seems clear that discrimination needs to be dealt with by the two parties involved, who know what the evidence is, not by a third party who is essentially a bystander. The offended party, not the landlord, should report to the police or take the alleged of­fender to court.