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#6336
shawnhicks
Participant

My first reaction to the Anti-Harassment / Anti-Discrimination Policy was that I did not like it either.  After researching the subject with other HOAs, I don’t think it is quite that simple.

There are some relatively new HUD (Housing and Urban Development) anti-harassment and anti-discrimination rules that went into effect October 2016 which significantly impact HOAs.  Although many HOAs and their management dislike these new rules (See, e.g. https://advocacy.caionline.org/hudwhitepaper/), it is important for HOAs to be aware of these new liability traps. The kicker is that an HOA may be liable if they have the power to exercise control over harassment/discrimination, but fail to do so. One way to avoid the liability trap is to adopt anti-discrimination / anti-harassment policies, and to judiciously enforce them.

A legitimate (and mandatory) area for enforcement is quid-pro-quo and hostile environment cases.  Quid-pro-quo is “this for that” which applies when someone says “I will help you with X in exchange for sex.”  The hostile environment cases do seem to be already covered by NRS 116, at least to a degree, but only to a small degree.

I read NRS 116.3118, which prohibits threats and harassment, but the harassment under that statute must be so severe that it “causes harm or serious emotional distress” or “creates a hostile environment.” Those are pretty high burdens.  When a person violates the statute, the remedy is a misdemeanor charge.  A misdemeanor is a crime, which means it takes the police to enforce it. The police, however, don’t want to get involved in HOA or neighbor quarrels. They view those quarrels as a civil matter.

What about cases where a member is overtly hostile to and curses at a staff person, and maybe even uses an offensive racial epithet? What if a member repeatedly does the same to their neighbors? What if clubs excluded membership based on race or religious beliefs? What if a member of the ARC said they would approve a plan in exchange for sex? What if a Community Patrol member offered security in exchange for sex? What if a person did an Andrew Cuomo, who without consent placed their hands on a woman’s face, and lower back or butt, and asked for a kiss? What if a person did an Al Frankin, who without consent put his hands on a woman’s breasts? What is wrong with issuing fines for these activities?

You pointed out that the policy is a “Can O Worms.” You have a point.  Much of the policy is vague.  What is “verbal abuse,” “intimidation,” “bullying,” “profane language,” and “unwelcome conduct”? Those words seem vague to me.  Could I get a fine for swearing? Could I get a fine for being critical of a board or a management decision? Could I get a fine for reading Dr. Seuss in public?

Who will be issuing the fines – management? Who will hear an objection to the fine – Covenants?

I do agree that neighbors should be neighborly.  We should not curse at our neighbors. We should be respectful to all SCA staff, even when we think they made a mistake.  We should not berate someone because we do not like the political sign in their yard.  We should not harass people.

HUD is forcing HOAs down this road.  There is much to be worked out with this new policy and the HUD requirements.  I hope enforcement is light-handed.