November2017

DISCRIMINATION... from page 24.

ate written policies against harassment and, when possible, impose fines and suspend membership privileges for vio- lations. For associations with employ- ees, corrective action may require sen- sitivity training, disciplinary action, and even termination. Harassment may be rare in community associations and while not all associations will want to implement such policies proactively, all must watch for conduct that may trigger the obligation to do so. Balancing Free Speech: With this obligation to act comes an important caveat. When evaluating conduct to determine if it is unlawful harassment constituting housing dis- crimination under these regulations, board members and managers must also balance an individual’s right to free speech. The difference between

unlawful speech constituting harass- ment against a protected class and lawful free speech is not an easy call. Conduct which is just offensive or causes hurt feelings or words which are spoken in the heat of the moment are likely protected as free speech even when directed at a protected class. Conduct which involves coer- cion, intimidation, or threats of bodily harm or which is severe and pervasive may not be protected as free speech and may be considered harassment when directed at a protected class. While it’s important to understand that not every disagreement or harsh word directed at a protected class in a housing situation will be unlaw- ful harassment, it’s also important to understand that certain conduct may be unlawful and that the association has an obligation to take some action.

sentatives or employees. One might not expect that an association can be liable for harassment caused by one resident against another. When an association board or manager knows, or should know, that harassment is occurring, even between unit owners, it must take prompt corrective action to address it or the association may be liable for discriminatory housing practices. What constitutes sufficient corrective action in the community association context is not defined in the new HUD regulations. It most certainly will include offering alternative dispute resolution to any residents and unit owners involved, something that is already a statutory obligation for community associations in New Jersey. A board may need to cre-

CONT I NU E S ON PAGE 68

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