In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐1322
MARSHA WETZEL,
Plaintiff‐Appellant,
v.
GLEN ST. ANDREW LIVING COMMUNITY, LLC, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 C 7598 — Samuel Der‐Yeghiayan, Judge.
____________________
ARGUED FEBRUARY 6, 2018 — DECIDED AUGUST 27, 2018
____________________
Before WOOD, Chief Judge, and KANNE and HAMILTON,
Circuit Judges.
WOOD, Chief Judge. Within months of her arrival at Glen
St. Andrew Living Community (“St. Andrew”), Marsha Wet‐
zel faced a torrent of physical and verbal abuse from other
residents because she is openly lesbian. Time and again, she
implored St. Andrew’s staff to help her. The staff’s response
was to limit her use of facilities and build a case for her evic‐
tion.
2 No. 17‐1322
Wetzel sued St. Andrew, alleging that it failed to provide
her with non‐discriminatory housing and that it retaliated
against her because of her complaints, each in violation of the
Fair Housing Act (FHA or Act), 42 U.S.C. §§ 3601–3619.
St. Andrew insists that the Act affords Wetzel no recourse, be‐
cause it imposes liability only on those who act with discrim‐
inatory animus, an allegation Wetzel had not expressly made
of any defendant. The district court agreed and dismissed
Wetzel’s suit. We read the FHA more broadly. Not only does
it create liability when a landlord intentionally discriminates
against a tenant based on a protected characteristic; it also cre‐
ates liability against a landlord that has actual notice of ten‐
ant‐on‐tenant harassment based on a protected status, yet
chooses not to take any reasonable steps within its control to
stop that harassment. We therefore reverse the district court’s
grant of St. Andrew’s motion to dismiss and remand for fur‐
ther proceedings.
I
After her partner of 30 years died, Wetzel moved into
St. Andrew, a residential community for older adults; she
continues to live there today. Her tenancy, presumably like
that of St. Andrew’s other residents, is governed by a form
Tenant’s Agreement (“Agreement”). Beyond a private apart‐
ment, the Agreement guarantees three meals daily served in
a central location, access to a community room, and use of
laundry facilities. It conditions tenancy at St. Andrew on re‐
fraining from “activity that [St. Andrew] determines unrea‐
sonably interferes with the peaceful use and enjoyment of the
community by other tenants” or that is “a direct threat to the
health and safety of other individuals.” It also requires com‐
pliance with the “Tenant Handbook,” which may “be
No. 17‐1322 3
amended from time to time.” The Agreement authorizes St.
Andrew to institute eviction proceedings against a tenant in
breach, and if St. Andrew prevails, the breaching tenant must
also reimburse St. Andrew for its attorney’s fees. (Indeed, the
Agreement requires reimbursement of St. Andrew’s fees re‐
lated to an alleged violation or breach even if suit has not been
instituted.)
After arriving at St. Andrew, Wetzel spoke openly to staff
and other residents about her sexual orientation. She was met
with intolerance from many of them. The following is just a
sample of what Wetzel has alleged that she endured. At this
early stage of the litigation, we accept her account as true, rec‐
ognizing that St. Andrew will have the right to contest these
assertions at a trial.
Beginning a few months after Wetzel moved to St. Andrew
and continuing at least until she filed this suit (a 15‐month pe‐
riod), residents repeatedly berated her for being a “fucking
dyke,” “fucking faggot,” and “homosexual bitch.” One resi‐
dent, Robert Herr, told Wetzel that he reveled in the memory
of the Orlando massacre at the Pulse nightclub, derided Wet‐
zel’s son for being a “homosexual‐raised faggot,” and threat‐
ened to “rip [Wetzel’s] tits off.” Herr was the primary, but not
sole, culprit. Elizabeth Rivera told Wetzel that “homosexuals
will burn in hell.”
There was physical abuse too. Wetzel depends on a
motorized scooter. Herr at one time rammed his walker into
Wetzel’s scooter forcefully enough to knock her off a ramp.
Rivera bashed her wheelchair into a dining table that Wetzel
occupied, flipping the table on top of Wetzel. In yet another
incident, Wetzel was struck in the back of the head while alone
in the mailroom; the blow was hard enough to push her from
4 No. 17‐1322
her scooter, and she suffered a bump on her head and a black
eye. She did not see the assailant, but the person said “homo”
when attacking her. Following this mugging, Herr taunted
Wetzel, rubbing his head and saying “ouch.” Wetzel also had
two abusive trips in the elevator. During the first, Rivera spat
on her and hurled slurs. During the second, Wetzel, Herr, and
another resident, Audrey Chase, were together in the elevator
when Herr again hit Wetzel’s scooter with his walker.
Wetzel routinely reported the verbal and physical abuse to
St. Andrew’s staff, including Carolyn Driscoll, Sandra Cubas,
and Alyssa Flavin (the “management defendants”). Wetzel’s
initial complaints won her a brief respite, prompting her to
draft a thank‐you note. But the management defendants,
among whom we need not distinguish for purposes of this
appeal, otherwise were apathetic. They told Wetzel not to
worry about the harassment, dismissed the conduct as acci‐
dental, denied Wetzel’s accounts, and branded her a liar. Wet‐
zel’s social worker accompanied her to one meeting about the
harassment; despite that, the managers denounced Wetzel as
dishonest.
Had the management defendants done nothing but listen,
we might have a more limited case. But they took affirmative
steps to retaliate against Wetzel for her complaints. For exam‐
ple, they relegated Wetzel to a less desirable dining room lo‐
cation after she notified them about being trampled by Rivera.
Following other complaints, they barred her from the lobby
except to get coffee and they halted her cleaning services, thus
depriving her of access to areas specifically protected in the
Agreement. They falsely accused Wetzel of smoking in her
room in violation of St. Andrew’s policy. Early one morning,
two staff members woke Wetzel up and again accused her of
No. 17‐1322 5
smoking in her room. When she said that she had been sleep‐
ing, one of them slapped her across the face. One month, Wet‐
zel did not receive the customary rent‐due notice, though
other tenants did. She remembered to pay on time, but she
had to pry a receipt from management.
In response, Wetzel changed her daily routine. She ate
meals in her room, forgoing those included as part of the
Agreement. She stopped visiting the third floor of St. Andrew,
where Herr lived. She did not use the laundry room at hours
when she might be alone. And she stayed away from the com‐
mon spaces from which she had been barred by management.
Eventually Wetzel brought this action against the manage‐
ment defendants and the entities that own and operate St. An‐
drew (the “corporate defendants”). Unless the distinction
matters, we refer to the group collectively as defendants or
St. Andrew. She alleged that St. Andrew failed to ensure a
non‐discriminatory living environment and retaliated against
her for complaining about sex‐based harassment, each in vio‐
lation of the FHA. The complaint included related state
claims.
All of the defendants moved for dismissal, contending
that the FHA does not make a landlord accountable for failing
to stop tenant‐on‐tenant harassment unless the landlord’s in‐
action was animated by discriminatory animus. In the alter‐
native, the defendants argued that Wetzel’s harassment claim
must be dismissed insofar as it relied on 42 U.S.C. § 3604(b)
because that section does not cover post‐acquisition harass‐
ment claims—in other words, harassment claims brought by
a tenant already occupying her home. The defendants also as‐
serted that Wetzel’s retaliation claim failed because it too
lacked an allegation that the defendants were motivated by
6 No. 17‐1322
discriminatory animus. The district court agreed with each of
the defendants’ arguments and dismissed the harassment
claim. It dismissed the retaliation claim without further dis‐
cussion. With the federal claims gone, the court chose to relin‐
quish supplemental jurisdiction over the state claims. Wetzel
appeals the dismissal of her suit.
II
A
As we recognized in Bloch v. Frischholz, 587 F.3d 771
(7th Cir. 2009) (en banc), the protections afforded by the Fair
Housing Act do not evaporate once a person takes possession
of her house, condominium, or apartment. The question be‐
fore us, while an important one, is thus narrow: does the Act
cover the particular kinds of post‐acquisition discrimination
that Wetzel suffered?
Under 42 U.S.C. § 3604(b), it is unlawful “[t]o discriminate
against any person in the terms, conditions, or privileges of
sale or rental of a dwelling, or in the provision of services or
facilities in connection therewith, because of race, color, reli‐
gion, sex, familial status, or national origin.” In addition, the
Act makes it unlawful “to coerce, intimidate, threaten, or in‐
terfere with any person in the exercise or enjoyment of … any
right granted or protected by section … 3604 … of this title.”
42 U.S.C. § 3617. Among other things, these sections prohibit
discriminatory harassment that unreasonably interferes with
the use and enjoyment of a home—by another name, a hostile
housing environment. Krueger v. Cuomo, 115 F.3d 487, 491
(7th Cir. 1997); DiCenso v. Cisneros, 96 F.3d 1004, 1008 (7th Cir.
1996); see also Bloch, 587 F.3d at 781 (recognizing that the pro‐
tections under sections 3604(b) and 3617 may be coextensive).
No. 17‐1322 7
A hostile‐housing‐environment claim requires a plaintiff
to show that: (1) she endured unwelcome harassment based
on a protected characteristic; (2) the harassment was severe or
pervasive enough to interfere with the terms, conditions,
or privileges of her residency, or in the provision of services
or facilities; and (3) that there is a basis for imputing liability
to the defendant. See DiCenso, 96 F.3d at 1008; see also
Alamo v. Bliss, 864 F.3d 541, 549 (7th Cir. 2017) (listing
elements of a Title VII hostile‐workplace claim); Honce v. Vigil,
1 F.3d 1085, 1090 (10th Cir. 1993) (adopting elements of a
Title VII hostile‐workplace claim for the FHA).
B
St. Andrew agrees that our ruling in Hively v. Ivy Tech
Community College of Indiana, 853 F.3d 339 (7th Cir. 2017)
(en banc), holding that discrimination based on sexual
orientation qualifies as discrimination based on sex under
Title VII, applies with equal force under the FHA. We
therefore move directly to the second element of the case:
whether the harassment from which Wetzel suffered was
severe or pervasive enough to interfere with her enjoyment of
her dwelling. Harassment is severe or pervasive if it
objectively interferes with the enjoyment of the premises or
inhibits the privileges of rental. DiCenso, 96 F.3d at 1008. That
standard requires us to consider the totality of the
circumstances, including the frequency of the discriminatory
conduct, its severity, and whether it is physically threatening
or humiliating rather than merely offensive. Alamo, 864 F.3d
at 549–50. There is no “magic number of instances” that must
be endured before an environment becomes so hostile that the
occupant’s right to enjoyment of her home has been violated.
Id. at 550. While isolated minor affronts are not enough,
8 No. 17‐1322
DiCenso, 96 F.3d at 1008, either a small number of “severe
episode[s]” or a “relentless pattern of lesser harassment” may
suffice, Alamo, 864 F.3d at 550 (quoting Cerros v. Steel Techs.,
Inc., 398 F.3d 994, 951 (7th Cir. 2005)).
Though it need be only one or the other, the harassment
Wetzel describes plausibly can be viewed as both severe and
pervasive. For 15 months, she was bombarded with threats,
slurs, derisive comments about her family, taunts about a
deadly massacre, physical violence, and spit. The defendants
dismiss this litany of abuse as no more than ordinary “squab‐
bles” and “bickering” between “irascible,” “crotchety senior
resident[s].” A jury would be entitled to see the story other‐
wise. (We confess to having trouble seeing the act of throwing
an elderly person out of a motorized scooter as one of the or‐
dinary problems of life in a senior facility.) Wetzel has pre‐
sented far more than “a simple quarrel between two neigh‐
bors or [an] isolated act of harassment.” See Halprin v. Prairie
Single Family Homes of Dearborn Park Ass’n, 388 F.3d 327, 330
(7th Cir. 2004).
C
That takes us to the main event: Is there a basis to impute
liability to St. Andrew for the hostile housing environment?
This question is new to our circuit. Our response begins, as it
must, with the text of the statute. Duncan v. Walker, 533 U.S.
167, 172 (2001). Again, 42 U.S.C. § 3604(b) makes it unlawful
“[t]o discriminate … because of … sex,” and 42 U.S.C. § 3617
forbids a housing provider to “interfere with any person in
the exercise or enjoyment of … any right granted or protected
by section … 3604 … of this title.” The focus on the actor ra‐
ther than the benefitted class, St. Andrew deduces, confines
the world of possible defendants under these sections to those
No. 17‐1322 9
accused of carrying discriminatory animus. But St. Andrew
relies on language defining the substantive contours of an
FHA action to ascertain a landlord’s potential liability for ac‐
tionable abuse—in other words, it is looking at what is prohib‐
ited, not who is subject to those prohibitions. As the Supreme
Court’s cases in analogous areas demonstrate, the questions
are different. See Davis v. Monroe Cnty. Bd. of Educ., 526 U.S.
629, 639 (1999) (distinguishing the scope of behavior pro‐
scribed under Title IX from availability of private suit); Fara‐
gher v. City of Boca Raton, 524 U.S. 775, 788–89 (1998) (separat‐
ing the analysis of the substantive contours of a forbidden
hostile environment claim under Title VII from the rules for
determining employer liability); Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 72 (1986) (telling lower courts to look to
common‐law principles for guidance on employer liability
under Title VII). True, a sex‐harassment claim under the FHA
demands sex‐based discrimination, but Wetzel has alleged
such discrimination. On its face, the Act does not address who
may be liable when sex‐based discrimination occurs or under
what circumstances. Cf. Burlington Indus., Inc. v. Ellerth,
524 U.S. 742, 754–55 (1998) (considering proper vicarious lia‐
bility standard for an employer for purposes of Title VII).
Because the text of the FHA does not spell out a test for
landlord liability, we look to analogous anti‐discrimination
statutes for guidance. One natural point of reference is
Title VII, which governs discrimination in employment. It
and the FHA have been described as “functional
equivalent[s]” to be “given like construction and application.”
Kyles v. J.K. Guardian Sec. Servs., Inc., 222 F.3d 289, 295 (7th Cir.
2000); see also Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive
Communities Project, Inc., 135 S. Ct. 2507, 2516 (2015)
(comparing section 3604(a) of the FHA to Title VII); Bloch,
10 No. 17‐1322
587 F.3d at 779 (noting that section 3604(b) mirrors Title VII).
The Supreme Court’s interpretation of Title VII’s parallel
section is illuminating. That section makes it unlawful “to
discriminate against any individual … because of … sex.”
42 U.S.C. § 2000e‐2(a)(1). Under operative language in
Title VII identical to that of the 42 U.S.C. § 3604(b), an
employer may be liable under some circumstances when its
own negligence is a cause of prohibited harassment.
Burlington Indus., 524 U.S. at 758–59. Indeed, “when Congress
uses the same language in two statutes having similar
purposes, particularly when one is enacted shortly after the
other, it is appropriate to presume that Congress intended
that text to have the same meaning in both statutes.” Smith v.
City of Jackson, 544 U.S. 228, 233 (2005). The FHA followed
Title VII by four years. See Civil Rights Act of 1964 § 703;
Civil Rights Act of 1968 § 804. St. Andrew provides no reason
why the FHA requires in all instances that the defendant
acted with discriminatory animus when an identically
worded statute has not been read in such a manner. As a
textual matter, we see none.
We recognize, however, that there are some potentially
important differences between the relationship that exists be‐
tween an employer and an employee, in which one is the
agent of the other, and that between a landlord and a tenant,
in which the tenant is largely independent of the landlord. We
thus refrain from reflexively adopting the Title VII standard
and continue our search for comparable situations.
That takes us to Title IX of the Education Amendments of
1972, 20 U.S.C. §§ 1681–1688. Like the FHA and Title VII,
Title IX aims to eradicate sex‐based discrimination from a
sector of society—education. The Supreme Court has held
No. 17‐1322 11
that Title IX supports a private right of action on the part of a
person who experiences sex discrimination in an education
program or activity receiving federal financial aid. Cannon v.
Univ. of Chicago, 441 U.S. 677, 688–89 (1979). In Davis v. Monroe
County Board of Education, the Court confronted the question
whether a school district’s “failure to respond to student‐on‐
student harassment in its schools can support a private suit
for money damages.” 526 U.S. at 639. Because Title IX was
enacted pursuant to the Spending Clause, private damages
were available against a funding recipient only if it had
adequate notice of its potential liability. Id. at 640. Applying
that limiting principle, the Court held that the district could
be held accountable only for its own misconduct. Id. But that
is just what the Davis plaintiff was trying to do. As the Court
put it, “petitioner attempts to hold the Board liable for
its own decision to remain idle in the face of known student‐
on‐student harassment in its schools.” Id. at 641. Indeed, the
district itself subjected the plaintiff to discrimination by
remaining “deliberately indifferent to known acts of student‐
on‐student sexual harassment [when] the harasser is under
the school’s disciplinary authority.” Id. at 646–47. It
emphasized that the recipient of funds exercised substantial
control over both the harasser and the premises on which the
misconduct took place. Id. at 645.
Much of what the Court said in Davis can be applied read‐
ily to the housing situation. In Davis, the fund recipient’s own
misconduct subjected the student to actionable sex‐based har‐
assment. Here, we need look only to the management defend‐
ants themselves, asking whether they had actual knowledge
of the severe harassment Wetzel was enduring and whether
they were deliberately indifferent to it. If so, they subjected
Wetzel to conduct that the FHA forbids. (We say nothing
12 No. 17‐1322
about the situation in a setting that more closely resembles
custodial care, such as a skilled nursing facility, or an assisted
living environment, or a hospital. Any of those are different
enough that they should be saved for another day.) Wetzel
may be in unchartered territory, but the Supreme Court’s in‐
terpretation of analogous anti‐discrimination statutes satisfies
us that her claim against St. Andrew is covered by the Act.
D
St. Andrew offers several reasons why, in its view, we
should not adopt the analysis we have just laid out. We re‐
spond to the most important points. It argues that there is no
agency or custodial relationship between a landlord and ten‐
ant, and from that it reasons that a landlord has no duty to
protect its tenants from discriminatory harassment. But we
have not gone that far: we have said only that the duty not to
discriminate in housing conditions encompasses the duty not
to permit known harassment on protected grounds. The land‐
lord does have responsibility over the common areas of the
building, which is where the majority of Wetzel’s harassment
took place. And the incidents within her apartment occurred
precisely because the landlord was exercising a right to enter.
More broadly, St. Andrew has a statutory duty not to discrim‐
inate. As the Supreme Court said, the FHA “defines a new le‐
gal duty, and authorizes the courts to compensate a plaintiff
for the injury caused by the defendant’s wrongful breach.”
Curtis v. Loether, 415 U.S. 189, 195 (1974). The same is true of
an action under Title VII or Title IX. See Dunn v. Washington,
429 F.3d 689, 691 (7th Cir. 2005); Davis, 526 U.S. at 643.
We need not address St. Andrew’s arguments about vicar‐
ious liability, because it is irrelevant here to the management
defendants’ possible liability. (The Supreme Court has held
No. 17‐1322 13
already that the Act imposes vicarious liability on a corpora‐
tion, but not upon its officers or owners. See Meyer v. Holley,
537 U.S. 280, 285–86 (2003).) The management defendants’ li‐
ability, if any after a full trial, would be direct—the result of
standing pat as Wetzel reported the barrage of harassment.
Because liability is direct, “it makes no difference whether the
person whose acts are complained of is an employee, an inde‐
pendent contractor, or for that matter a customer … . The gen‐
esis of inequality matters not; what does matter is how the em‐
ployer handles the problem.” Dunn, 429 F.3d at 691. A school
district’s liability under Title IX is the same. Davis, 526 U.S. at
640–43.
St. Andrew complains that it would be unfair to hold it li‐
able for actions that it was incapable of addressing, but we are
doing no such thing. We have no quarrel with the idea that
direct liability for inaction makes sense only if defendants
had, but failed to deploy, available remedial tools. Id. at 644;
Dunn, 429 F.3d at 691. St. Andrew protests that it can only
minimally affect the conduct of its tenants because tenants ex‐
pect to live free from a landlord’s interference.
Control in the absolute sense, however, is not required for
liability. Liability attaches because a party has “an arsenal of
incentives and sanctions … that can be applied to affect con‐
duct” but fails to use them. Id. St. Andrew brushes aside the
many tools for remedying harassment that it has pursuant to
the Agreement. For example, the Agreement allows St. An‐
drew to evict any tenant who “engages in acts or omissions
that constitute a direct threat to the health and safety of other
individuals” or who “engage[s] in any activity that [St. An‐
drew] determines unreasonably interferes with the peaceful
use and enjoyment of the community by other tenants.” The
14 No. 17‐1322
mere reminder that eviction (along with liability for attorneys’
fees) was a possibility might have deterred some of the bad
behavior. St. Andrew also could have updated the Tenant
Handbook to clarify the anti‐harassment and anti‐abuse pro‐
visions. With respect to the common areas, St. Andrew could
have suspended privileges for tenants who failed to abide by
the anti‐harassment policies, instead of taking a blame‐the‐
victim approach.
If liability is possible here, St. Andrew warns, then land‐
lords may just renounce control of the premises altogether.
But unless the rental unit is a detached, single‐family dwell‐
ing, such total abandonment is not a practical possibility.
St. Andrew itself had a common living area, a common dining
area, common laundry facilities, and hallways. It is hard to
believe that a total disclaimer of liability would be in its own
best interest. In addition, contract law is not the exclusive
source of a landlord’s duties or powers. Property law governs
landlord‐tenant relations as well. A landlord typically must
provide its tenants a residence that is free from “interfer[ence]
with a permissible use of the leased property by the tenant.”
RESTATEMENT (SECOND) OF PROP.: LAND. & TEN. § 6.1. The obli‐
gation is breached even if a third party causes the interfer‐
ence, so long as the disturbance was “performed on property
in which the landlord has an interest” and the “conduct could
be legally controlled by [the landlord].” Id. § 6.1 cmt. d. Inher‐
ent powers spring from that obligation. Cf. id. § 6.1 cmt. d, il‐
lus. 10–11 (illustrating that a landlord breaches its obligation
to a tenant if the landlord fails to act after learning that con‐
duct performed on the owned property interferes with the
tenant’s permissible use of the leased property). And if need
be, there is always the right of exclusion, which is “[o]ne of
the main rights attaching to property.” Byrd v. United States,
No. 17‐1322 15
138 S. Ct. 1518, 1527 (2018) (citing 2 W. Blackstone, Commen‐
taries on the Laws of England, ch. 1). The same kinds of steps
we already mentioned could have been justified as a matter of
property law.
Seeking a broader ruling, Wetzel points to a rule interpret‐
ing the FHA that the U.S. Department of Housing and Urban
Affairs (HUD) published in 2016. The HUD rule interprets the
FHA to make a landlord directly liable for failing to “take
prompt action to correct and end a discriminatory housing
practice by a third party” if the landlord “knew or should
have known of the discriminatory conduct and had the power
to correct it.” 24 C.F.R. § 100.7(a)(1)(iii). HUD’s rule mirrors
the scope of employee liability under Title VII for employee‐
on‐employee harassment. We have no need, however, to rely
on this rule. As we noted earlier, there are salient differences
between Title VII and the FHA. In the end, it is possible that
they could be overcome, but more analysis than HUD was
able to offer is necessary before we can take that step. It is
enough for present purposes to say that nothing in the HUD
rule stands in the way of recognizing Wetzel’s theory.
It is important, too, to recognize that the facts Wetzel has
presented (which we must accept at this stage) go far beyond
mere rudeness, all the way to direct physical violence. This
case is thus not, as St. Andrew would have it, one about good
manners. Courts around the country have policed that line for
years in the context of Title VII, for which they have ensured
that the standard is “sufficiently demanding to ensure that
Title VII does not become a general civility code,” and
“filter[s] out complaints attacking the ordinary tribulations of
the workplace, such as the sporadic use of abusive language,
gender‐related jokes, and occasional teasing.” Faragher,
16 No. 17‐1322
524 U.S. at 788 (citations omitted). We have no reason not to
expect the same discipline here.
III
In the alternative, St. Andrew urges that Wetzel’s section
3604(b) claim falls outside the scope of post‐acquisition ac‐
tions available under that section of the FHA. Our treatment
of this argument might have little effect on the outcome of this
case, because Wetzel’s harassment claim invokes the protec‐
tions of both section 3604(b) and section 3617. And a claim al‐
leging a post‐acquisition pattern of harassment can proceed
under section 3617 even if there is no route for relief under
section 3604. Halprin, 388 F.3d at 330. St. Andrew nonetheless
maintains that Wetzel’s section 3604(b) claim is unavailable
post‐acquisition.
In Bloch, the en banc court took a careful look at the availa‐
bility of post‐acquisition claims under section 3604(b).
587 F.3d at 779–81. We identified two situations in which such
a claim could proceed: (1) when discriminatory conduct con‐
structively evicts a resident, and (2) when occupancy is gov‐
erned by discriminatory terms (in that case, a condo associa‐
tion rule that prohibited hanging mezuzot and thus discrimi‐
nated against Jews). Id. at 779–80. As to the first situation, we
reasoned that habitation is a “privilege of sale.” Id. As to the
second, the Bloch family’s adherence to the discriminatory
rule was a “condition of sale.” Id. St. Andrew reads Bloch as
identifying the exclusive set of post‐acquisition claims that
would be possible under section 3604(b). But we said no such
thing. Instead, as courts do, we were addressing the case be‐
fore us, and so we simply noted that those were “two possi‐
bilities for relief in [the present] case.” Id. at 779. St. Andrew’s
argument also ignores that section 3604(b) protects not only
No. 17‐1322 17
against discrimination in the “terms, conditions, or privileges
of sale or rental,” but also discrimination “in the provision of
services or facilities in connection therewith.” As the Ninth
Circuit has recognized, the latter language most naturally en‐
compasses conduct that follows acquisition. Comm. Concern‐
ing Cmty. Improvement v. City of Modesto, 583 F.3d 690, 713
(9th Cir. 2009). Few “services or facilities” are provided prior
to the point of sale or rental; far more attach to a resident’s
occupancy. Id.
In this case, Wetzel has alleged that while the management
defendants sat on their hands, residents’ harassment confined
her to her room for prolonged stretches. Regular harassment
also impeded her from eating the meals she had paid for at
the dining hall, visiting the lobby and other common spaces,
and obtaining access to the laundry room. These were con‐
crete violations of the Agreement, which guarantees “three‐
well balanced meals per day to be served in a central loca‐
tion,” a community room, and available laundry facilities. At
a minimum then, Wetzel has a cognizable post‐acquisition
claim because discrimination affected the provision of ser‐
vices and facilities connected to her rental.
Beyond that, the discrimination diminished the privileges
of Wetzel’s rental. Though she has not been constructively
evicted from her apartment, occupancy of the unit is not the
only privilege of rental. Use of the totality of the rented prem‐
ises is another. See RESTATEMENT (SECOND) OF PROP.: LAND. &
TEN. § 4.3; A. JAMES CASNER ET AL., 1 AMERICAN LAW OF
PROPERTY § 3.49 (1952). So too is the covenant of quiet enjoy‐
ment. See City of Modesto, 583 F.3d at 713; CASNER, supra,
§ 3.47.
18 No. 17‐1322
Contrary to St. Andrew’s assertion, this case is unlike
Halprin. There, the Halprin family sued its homeowners’ as‐
sociation because the association’s president incessantly har‐
assed them because they were Jewish. Halprin, 388 F.3d at 328.
The Halprin opinion took a limited approach to post‐acquisi‐
tion claims under section 3604(b), and so it had no reason to
reach the question whether the harassment was connected to
a term, condition, or privilege, or the provision of services, re‐
lated to homeownership. In Bloch, however, the en banc court
distinguished Halprin as a case in which the homeowners’ as‐
sociation had no contractual relationship to the Halprin fam‐
ily. Bloch, 587 F.3d at 780. St. Andrew tries to use Halprin by
noting that there was no contractual relationship between
Wetzel and any other tenant. True enough, but that is not the
relevant comparator. It is between Wetzel and St. Andrew,
and that relationship was governed by the Agreement and the
Tenant Handbook. Nothing in Halprin supports the dismissal
of Wetzel’s case at this time.
IV
Wetzel separately alleged that after she complained about
the harassment, the management defendants restricted her
access to facilities and common spaces, downgraded her din‐
ing seat, halted her cleaning services, and attempted to build
a case for her eviction. In doing so, she says, they retaliated
against her in violation of 42 U.S.C. § 3617. St. Andrew offers
several reasons to affirm the district court’s dismissal of this
claim. It argues that the alleged retaliatory conduct was not
adverse action; if it was adverse, it was not causally related to
Wetzel’s complaints; and there is no allegation of discrimina‐
tory animus. St. Andrew conceded at oral argument that it ar‐
gued in the district court only that Wetzel’s retaliation claim
No. 17‐1322 19
lacked an allegation of discriminatory animus. We thus limit
our remark to that argument. Fednav Int’l Ltd. v. Cont’l Ins. Co.,
624 F.3d 834, 841 (7th Cir. 2010).
To prove retaliation, a plaintiff must show that: (1) she en‐
gaged in protected activity; (2) she suffered an adverse action;
and (3) there was a causal connection between the two. See,
e.g., Owens v. Old Wisconsin Sausage Co., Inc., 870 F.3d 662, 668
(7th Cir. 2017) (elements of a Title VII retaliation claim); Boston
v. U.S. Steel Corp., 816 F.3d 455, 464 (7th Cir. 2016) (same for
ADEA); Milligan v. Bd. of Trs. of S. Ill. Univ., 686 F.3d 378, 388
(7th Cir. 2012) (same for Title IX). Proof of discriminatory an‐
imus is not on the list. We have said that a claim under section
3617 requires showing intentional discrimination only when
considering an interference claim. See Bloch, 587 F.3d at 783;
East‐Miller v. Lake Cnty. Highway Dep’t, 421 F.3d 558, 562–63
(7th Cir. 2005); see also Halprin, 388 F.3d at 330–31 (recogniz‐
ing that section 3617 creates different types of claims).
Indeed, if we were to read the FHA’s anti‐retaliation pro‐
vision to require that a plaintiff allege discriminatory animus,
it would be an anomaly. The FHA’s anti‐retaliation provision
makes it unlawful “to coerce, intimidate, threaten, or interfere
with any person in the exercise or enjoyment of, or on account
of his having exercised or enjoyed, … any right granted or
protected by section 3603, 3604, 3605, or 3606 of this title.”
42 U.S.C. § 3617. Like all anti‐retaliation provisions, it pro‐
vides protections not because of who people are, but because
of what they do. See Burlington Northern & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 63 (2006).
20 No. 17‐1322
V
The district court’s judgment is REVERSED and the case is
REMANDED for further proceedings consistent with this opin‐
ion. We also instruct the district court to reinstate the state‐
law claims that were dismissed for want of jurisdiction.