HARASSMENT, THREATS AND RESTRAINING ORDERS

Laws Regarding Harassment

Federal Law. Under federal law, "harassment" is defined to mean "a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose." (18 U.S.C. § 1514(c)(1).)

California Law. California defines "harassment" as unlawful violence as follows (Code Civ. Proc. § 527.8):

• “Harassment” is a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person and that serves no legitimate purpose. The course of conduct must be one that would cause a reasonable person to suffer substantial emotional distress, and it must actually cause substantial emotional distress.
• “Course of conduct” is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an employee to or from the place of work; entering the workplace; following an employee during hours of employment; making telephone calls to an employee; or sending correspondence to an employee by any means, including, but not limited to, the use of the public or private mail, interoffice mail, facsimile, or computer email.
• “Credible threat of violence” is a knowing and willful statement or course of conduct that would place a reasonable person in fear for their safety or the safety of their immediate family and that serves no legitimate purpose.

FEHA Requirements. Under California's Fair Employment and Housing Act (FEHA), which the Civil Rights Department enforces, an employer may also be responsible for the acts of non-employees concerning sexual harassment of employees and other specified persons if the employer or its agents or supervisors knew or should have known of the conduct and fails to take immediate and appropriate corrective action. It makes associations potentially liable for the acts of non-employees concerning harassment activity.

Sexual Harassment

Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

• The victim and the harasser may be a woman or a man; the victim does not have to be of the opposite sex.
• The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
• The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
• Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
• The harasser's conduct must be unwelcome.

Quid pro quo. Where an employee is required to submit to unwelcome sexual conduct as a condition of his or her job or to gain some job benefit, for example, a supervisor demands that a subordinate have an affair with him or her to keep their job or be considered for a promotion.

Hostile workplace environment. The inappropriate behavior or conduct must be so pervasive as to create an intimidating and offensive work environment and can be visual or verbal.

• Visual. Displaying pictures, posters, calendars, graffiti, objects, reading materials, or other materials that are sexually suggestive, demeaning, or pornographic; reading or otherwise publicizing materials that are in any way sexually revealing, suggestive, demeaning, or pornographic.
• Verbal. Sexually oriented gestures, noises, remarks, jokes, or comments about a person's sexuality or sexual experience.
• Physical. Intentional physical conduct that is sexual in nature, such as touching, pinching, patting, grabbing, brushing against another employee's body, poking another employee's body, and blocking or impeding pathways.
• Retaliation. Disciplining, changing work assignments, or refusing to cooperate with an employee who has complained about or resisted harassment, discrimination, or retaliation.

Anti-Harassment Training Required. A business with five or more employees must ensure their supervisory employees undergo a 2-hour training class, and non-supervisory employees require one hour of training. This must be done every two years. There is disagreement on whether this applies to boards of directors. Sexual harassment training requirements probably do not apply to boards of directors. The reason is that boards should NOT have any direct supervision over employees. Their role is to make policy decisions, approve contracts, approve the transfer of funds, etc. The association's manager should oversee operations and supervise employees and vendor activities. Even so, boards should consider taking an online training course. They are free and will help directors better understand how employees should be treated and how to respond to complaints.

Boards are Required to Investigate Complaints

Effective October 14, 2016, boards of directors are required to address members' claims of harassment based on race, color, religion, national origin, sex, familial status, and disability. This includes harassment by other residents, board members, managers, and vendors. The law requires that boards take prompt steps to investigate and end harassment. (Code of Fed. Reg. §100.7(a)(1)(iii).) The U.S. Department of Housing and Urban Development (HUD) established regulations requiring all housing providers to take steps to end harassment. The regulation includes homeowner associations as housing providers. (Code of Fed. Reg. §100.7(a)(1)(iii).) California Fair Employment and Housing Council approved fair housing guidelines to help associations address discrimination claims. The new state regulations took effect on January 1, 2020. (Calif. Code of Regs §§12000-12271.) It includes the "governing bodies of common interest developments." (Code of Regs §12005(v)(7).) Associations must investigate harassment complaints and take appropriate action, whether it involves residents, employees, or vendors.

Factors to Evaluate. The alleged harassment must be related to a person’s membership in a protected class. If the harassment isn’t based on a protected class, it may still qualify as harassment, but it’s not subject to the act’s requirements that an association intervenes. To determine if harassment occured, boards can evaluate the nature of the unwelcome conduct, the context in which the incidents occur, the severity, scope, frequency, duration, and location of the conduct, and the relationships of the people involved. It does not require that the complaining party suffer psychological or physical harm, only that the alleged harassment occurred.

Hearing & Corrective Action. If, after investigating a claim, the board determines that harassment is occurring, it can make a demand on the harassing party that he/she cease the harassment. If it continues, boards should hold hearings before taking corrective action, such as sending a cease and desist letter, levying fines and suspending privileges (as provided for in the governing documents), or taking legal action. If the board determines that an owner threatens the membership, it can take further action, such as seeking a restraining order.

Failure to Investigate. If a board fails to investigate and take appropriate action when it "knew or should have known" of the harassment or the person experiencing harassment is not satisfied with the board's action, the person can file a complaint with the U.S. Department of Housing and Urban Development (HUD). The person can also file a complaint if they are not satisfied with the association’s investigation or the result of the investigation. Once a complaint is lodged with HUD, it is referred to California's Civil Rights Department (CRD) for investigation and possible action. Following is an example out of San Diego:

6-15-20. Board and Management Company pay $120,000. In a case brought by the CRD, two board members were accused of retaliating against a homeowner who reported she was being sexually harassed by an employee of the gardener working under contract for the association. In the settlement, the association, directors, and management company agreed to pay $120,000 in damages and attorney’s fees as well as update the association’s antidiscrimination policies, post fair housing notices, complete fair housing training, and report complaints of discrimination and harassment to CRD for five years.

CRD Investigation. The CRD is supposed to be neutral in its investigations. It has been our experience, however, that investigators working for the CRD are more often than not advocates for the person filing a complaint and can be heavy-handed in their demands. If the investigator determines the allegations appear legitimate, the CRD will file a complaint with the association, giving the board 30 days to respond. If the matter cannot be resolved to CRD's satisfaction, the case is moved to its Legal Division. If the matter cannot be resolved at this stage, CRD may file a lawsuit against the association.

Responding to a DFEH Investigation. Whenever an association receives a demand letter from the CRD, the board should immediately contact legal counsel. If the association conducted an adequate investigation per the HUD guidelines, the CRD complaint would be much easier to defend against. Assuming the board's investigation was reasonably thorough and the proper conclusions drawn, especially if it was conducted in consultation with legal counsel, the directors will be protected under the business judgment rule. 

HOAs Can Seek Restraining Orders

Beginning January 1, 2025, homeowner associations can seek a civil harassment restraining order (sometimes called a protective order) to protect employees, including volunteer directors, managers, and vendors, from harassment, unlawful violence, and threats of violence. Both a civil harassment restraining order and workplace violence restraining order can be based on unlawful violence or a credible threat of violence, but only a civil harassment restraining order can be based on a continuity of purpose, a willful course of conduct intending to vex, annoy or harass serving no legal purpose. (North Coast Village Condominium Assn. v. Phillips.) A court will issue a protective order for the following reasons:

• Assault: intentionally attempting to cause harmful or offensive contact. Example: Someone swings a fist at you or throws an object at you with the intention of hitting you but misses.
• Battery: intentional harmful or offensive contact. Example: Someone swings a fist at you or throws an object at you with the intention of hitting you, and they are successful.
• Stalking: a series of repeated actions meant to put you in fear for your safety or the safety of your immediate family. Example: Someone continually follows you, watches you, and makes repeated and unwanted contact with you (via the internet, email, phone, fax, or other methods of communication) to make you feel scared.
• Credible Threat of Violence: a statement or action that reasonably places you in fear for your safety or the safety of your immediate family. Example: “If you ever call the cops on me again, I’m going to kill you.”
• Harassment: repeated actions that seriously alarm, annoy, or harass you, that serve no legitimate purpose, and cause you extreme emotional distress. Example: Getting 50 unwanted and upsetting text messages, emails, and/or phone calls from the same person within a week for no reason. 

Who is Protected? Where appropriate, a homeowner can personally seek a restraining order against a neighbor who harasses and threatens them with harm. The statute also considers board members, volunteers, and independent contractors who perform services for an association on association property "protected employees." The association, as an employer, may seek an order protecting any board member, committee member, employee, or contractor who has been assaulted, battered, stalked, or received credible threats of violence and, beginning January 1, 2025, has been a victim of harassment. (Code Civ. Proc. § 527.8.) The board may pay the legal expense with the association's monies. NOTE: Putting up with criticism is part of the job for association employees and board members. However, directors have a right to privacy. In addition, there comes a point when it becomes abusive and crosses the line into harassment, stalking, and threats of violence. When that happens, the board should take immediate action to protect the association's interests by protecting its officers, directors, and employees.

Up to Five Years. Courts may grant a restraining order protecting persons for up to five years, depending on the nature of the threat. (Code Civ. Proc. § 527.6(d).) Workplace violence restraining orders are good for up to three years.

Penalties. The individual making threats can be ordered to cease making telephone calls to, sending correspondence (including emails) to, talking to, or following the affected director, committee member, employee, or their immediate family. If the person violates the court's order, he/she can be arrested and charged with a crime. Penalties include jail and/or a fine of up to $1000.

Harassing Emails Can Qualify

In an unpublished case, the Parnells, tenants in a homeowners association, obtained a restraining order against a homeowner (Shih) due in part to what the trial court determined were Shih’s numerous unwanted emails about the Parnells (approximately 300 in 7 months) “on issues that were mundane and designed to simply inflict distress/harassment upon [the Parnells].” The emails were sent to the Parnells, their landlord, Mr. Parnell’s employer, and the association. The trial court also found credible evidence of other unreasonable and unwarranted conduct toward the Parnells. Shih was ordered not to harass or contact the Parnells and to stay five yards away from them and their son and 100 yards away from their dog. Shih was also ordered not to contact Mr. Parnell’s employer, the U.S. Marine Corps. The appellate court affirmed the order nearly in its entirety, sending back only one item with directions that the trial court re-word a portion of the order to limit the prohibition on contacting the Marine Corps (a large and public entity engaging in many activities beyond employing Mr. Parnell) to matters concerning the Parnells. (Parnell v. Shih)

Miscellaneous

More Information. For more information about restraining orders, see the California Courts Guide on Civil Harassment.

Recommendation: To satisfy federal and state regulations and reduce exposure to litigation, boards should adopt anti-harassment/discrimination and neighbor dispute policies for their associations. They should contain the following:

• Definitions of harassment, neighbor-to-neighbor disputes, protected classes, and third parties.
• Description of the association's policy against harassment and limitations on the association's authority.
• Procedures for reporting harassment.
• Policy for investigating disputes/harassment.
• Potential actions related to findings.

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with community association issues, subscribe to the Davis-Stirling Newsletter.