Can five words of small-talk lead to tens of thousands of dollars in liability and attorneys’ fees? They can if you are a real estate professional in Massachusetts. For proof, one need only read the Massachusetts Appeals Court’s recent decision in Linder v. Boston Fair Housing Commission.
In 2007, James and Gladys Stokel were completing a rental application for Paul Linder, a licensed real estate broker in Boston, when Linder imprudently asked Stokel, “Gladys, where are you from?” She answered that she was from Venezuela. The question was found to have no discriminatory intent, and it did not result in discrimination against the Stokels. In fact, the Stokels found an apartment less than one month later. However, by simply asking this question, Mr. Linder violated Massachusetts General Laws chapter 151B, which protects individuals from unlawful discrimination, and exposed himself to liability under that statute.
The Stokels found the question “insulting and upsetting,” and feared that they were victims of discrimination. They complained to the Boston Fair Housing Commission. Stokel claimed that Linder’s question caused her to suffer fear, anxiety and sleeplessness over a three-year period. The commission agreed that the Stokels were victims of unlawful discrimination, but limited their claim to a one-year period. Nevertheless, the commission awarded Stokel $10,000 in emotional distress damages, plus $44,000 in attorney’s fees and costs. Although this event was Linder’s only known violation of the statute, the commission also assessed a $7,500 civil penalty against him. Thus Linder faced more than $61,500 in total liability for his transgression, not to mention his own defense costs.
Linder appealed to Superior Court without success. When reviewing administrative agencies’ decisions, courts generally defer to the agencies’ experience, technical competence, specialized knowledge and discretion. Linder then asked the Appeals Court to intercede.
The Fallout
The Appeals Court was relatively more sympathetic to Linder. Although Linder violated the anti-discrimination statute, the court limited Stokel’s claim for emotional distress to the one-month period from when Mr. Linder asked his fateful question until the Stokels secured an apartment. The court noted that Stokel’s emotional distress after this one-month period was due to heating problems in her apartment, an unrelated discrimination lawsuit that she filed against a different real estate company, and anxiety about her suit against Linder and his defense tactics. The Stokels were particularly troubled that Linder served them with a request for production of documents during the litigation.
The court ruled that Mrs. Stokel could not collect damages against Linder for emotional distress caused by those events. The court returned the case to the commission, and ordered it to reconsider the awards of damages for emotional distress and attorney’s fees. The court also noted that $10,000 is the maximum civil penalty that the commission could assess for Linder’s first-time offense, and ordered the commission to reconsider its $7,500 assessment against Linder.
Based on the Appeals Court’s decision, Linder’s liability to the Stokels and the commission will probably be reduced. However, he still loses financially. The fallout from his blunder proves that brokers must avoid asking rental applicants and buyers about their national origin, even when making small-talk. Inquiries about race, religion, and sexual orientation are similarly forbidden. Brokers who ask about those topics risk harsh sanctions, whether or not they intend to illegally discriminate against an applicant or buyer.
Christopher R. Vaccaro is an attorney at Looney & Grossman LLP in Boston. His email address is cvaccaro@lgllp.com.
