The U.S. Court of Appeals for the Second Circuit, in an en banc decision, split from the Seventh Circuit in holding that a landlord “cannot be presumed to have the degree of control over tenants that would be necessary to impose liability under the FHA for tenant-on-tenant misconduct.” In rendering its decision, the Second Circuit took great pains to differentiate its instant case, Francis v. Kings Park Manor, 2021 WL 1137441 (2021), from the Seventh Circuit’s prior 2018 decision in Wetzel v. Glen St. Andrew Living Cmty., 901 F.3d 856. However, that differentiation collapses on itself, and now the issue is ripe to be taken up by the Supreme Court.

The Second Circuit, in Francis, framed the issue in terms of a deliberate indifference theory of liability for disparate treatment discrimination under the Fair Housing Act. The Seventh Circuit, in Wetzel, framed the issue as whether a landlord could have liability imputed for a hostile housing environment. Regardless, the issue, whether a landlord can be liable for tenant-on-tenant harassment, was the same before both Circuits.