Gnerre v. Massachusetts Com'n Against Discrimination

• Decision Date: 08 June 1988
• Citation: 402 Mass. 502,524 N.E.2d 84
• Parties: , 81 A.L.R.4th 195, 56 USLW 2726 Antonio GNERRE v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 84

524 N.E.2d 84

402 Mass. 502, 81 A.L.R.4th 195, 56

USLW 2726

Antonio GNERRE v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION et al.

¹

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Feb. 2, 1988.

Decided June 8, 1988.

Joseph Wine, Boston, for plaintiff.

Sharyn E. Dreyer, Jamaica Plain, for Massachusetts Com'n Against Discrimination.

Lynn A. Girton, Boston, for Barbara Silverstein.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and O'CONNOR, JJ.

ABRAMS, Justice.

Antonio Gnerre appeals from a Superior Court judgment affirming a decision by the Massachusetts Commission Against Discrimination that Gnerre, a landlord, had discriminated against his tenant, Barbara Silverstein, on the basis of sex, in violation of G.L. c. 151B, § 4(6) (1986 ed.). The commission, affirming the decision of the hearing commissioner, determined that Gnerre was liable because he sexually harassed Silverstein during the course of her tenancy. Gnerre argues that the commission's decision was based on an erroneous standard of law and was not supported by substantial evidence. We do not agree. We affirm.

We summarize the facts found by the hearing commissioner. Barbara Silverstein, a single woman, lived with her young son in an apartment located in Revere. At the time of the hearing in 1984, Silverstein had lived in the apartment for seven years. Silverstein's building contained four apartment units. Antonio Gnerre owned the apartment building in which Silverstein resided. Gnerre also owned the apartment building located across the street from Silverstein's building. During the course of her tenancy, Silverstein saw Gnerre when he visited his properties to collect rent, to make repairs, or to show apartments to prospective tenants.

Silverstein alleged several acts of sexual harassment. In August, 1981, Silverstein returned home in a car driven by her brother-in-law. As she got out of the car in front of her apartment building, Gnerre came out of an alley located next to his property across the street from Silverstein's building. Gnerre called out to Silverstein: "How many times did you get laid this week?" In December, 1981, Gnerre came to Silverstein's door to collect the rent. Silverstein told Gnerre that she would have the money for him later that day. Gnerre pointed to the fly of his trousers and said, "I got a big sausage, you want?" Silverstein responded that she did not understand what he meant. Gnerre repeated the question, smiled, and left. In May, 1983, Gnerre entered Silverstein's apartment to make repairs subsequent to an inspection by the Revere board of health. Gnerre replastered a portion of the wall in Silverstein's bedroom. Silverstein asked Gnerre if he intended to leave the repaired wall bare without painting or wallpapering it, to which Gnerre responded, "Well, you can get a picture of a naked man there right over your bed--you can get a nice picture." In September, 1983, Silverstein was leaving the apartment building in the company of her then six-year old son. Gnerre yelled to Silverstein from the alley next to his property across the street, "Nice pair of tits, honey." Silverstein's son asked her what Gnerre's comment meant. Silverstein began to cry.

Silverstein's mother, Ruth, witnessed the incident of September, 1983, and corroborated her daughter's account of the event. Ruth Silverstein also said that her daughter telephoned her shortly after the incident of December, 1981, and, crying, related to her what Gnerre had said. Kim Bergen, a former tenant in Silverstein's building, said that Silverstein came to her apartment sometime in the fall of 1983 and related to her the incident of September, 1983. Bergen said that Silverstein cried as she related this incident.

The hearing commissioner found that Silverstein had suffered severe and prolonged emotional distress as a result of Gnerre's sexual harassment. Silverstein stated that she felt "terribly embarrassed," "degraded," "cheap," and "low" after Gnerre's comments to her. Silverstein experienced physical symptoms of distress after each incident of sexual harassment, and she cried after the incidents of harassment and when she recounted the events to other people. Silverstein was particularly upset that Gnerre's comment was heard by her son.

The hearing commissioner also found that, as a result of the repeated incidents of harassment, Silverstein became "terrified" of Gnerre because she did not know what he was capable of doing to her. Silverstein changed her behavior patterns in order to avoid meeting Gnerre and to prevent his making further comments to her. She constantly feared situations in which she might encounter Gnerre. Silverstein stated that her meetings with Gnerre caused her extreme anxiety because she worried about what Gnerre might say to her. The commissioner also found that, as a result of Gnerre's sexual harassment, Silverstein's emotional distress extended to situations not involving Gnerre. Silverstein said that she thought about Gnerre's comments when she was with other men, and she feared that other people thought about her the way Gnerre did. The commissioner found that Silverstein's emotional distress, suffered as a result of Gnerre's sexual harassment, continued to the time of the hearing and was evidenced by Silverstein's obvious distress while presenting her testimony.

The commissioner ruled that a landlord's sexual harassment of a tenant constitutes sex discrimination in the terms, conditions, or privileges of housing in violation of G.L. c. 151B, § 4(6), even if no specific adverse housing action is threatened by the landlord. The commissioner ruled that Silverstein had proven actionable sex discrimination under G.L. c. 151B, § 4(6), by demonstrating that (1) she is a member of a protected class; (2) she was subject to unsolicited harassment of a sexual nature; and (3) the harassment was of such a nature as to make the tenancy significantly less desirable than if the harassment had not occurred. The commissioner concluded that, under either a subjective or an objective standard, Gnerre's repeated harassment reduced the value of Silverstein's tenancy and, thus, adversely affected the terms, conditions, and privileges of her housing in violation of G.L. c. 151B, § 4(6).

On the basis of her findings of fact and conclusions of law, the commissioner ordered Gnerre to cease and desist from engaging in any form of sexual harassment or from otherwise discriminating on the basis of sex in violation of G.L. c. 151B, § 4. The commissioner further ordered Gnerre to pay Silverstein the sum of one thousand dollars plus interest at a rate of twelve per cent per annum from the date the complaint was filed.

The full commission affirmed the decision of the hearing commissioner. Gnerre sought judicial review of the commission's decision in the Superior Court. The court affirmed the commission. Gnerre appealed. We transferred the case to this court on our own motion.

1. Applicability of G.L. c. 151B, § 4(6). Gnerre contends that the court below erroneously affirmed the decision of the commission on the ground that "[t]he law requires that sexual harassment, to be actionable, attain to a certain level of pervasiveness and persistence. As a matter of law, [Gnerre's] isolated remarks, no matter how obnoxious, over two years do not begin to attain that level." We thus must determine whether sexual harassment constitutes a violation of G.L. c. 151B, § 4(6), and the appropriate legal standard for determining whether such a violation has occurred.

We have not previously determined whether a landlord's sexual harassment of a tenant constitutes discrimination in housing in violation of G.L. c. 151B, § 4(6), and on what basis a landlord may be held liable. General Laws c. 151B, § 4(6), provides in part: "It shall be an unlawful practice: ... 6. For the owner, lessee, sublessee, licensed real estate broker, assignee or managing agent of publicly assisted or multiple dwelling or contiguously located housing accommodations or other person having the right of ownership or possession or right to rent or lease, or sell or negotiate for the sale of such accommodations, or any agent or employee of such a person or any organization of unit owners in a condominium or housing cooperative:-- ... (b) to discriminate against any person because of his race, religious creed, color, national origin, sex, age, ancestry or marital status ... in the terms, conditions or privileges of such accommodations...." We note also that G.L. c. 151B, § 9, provides in part: "The provisions of this chapter shall be construed liberally for the accomplishment of the purposes thereof...."

In College-Town, Division of Interco, Inc. v. Massachusetts Comm'n Against

Discrimination, 400 Mass. 156, 508 N.E.2d 587 (1987), we construed analogous language in G.L. c. 151B, § 4(1), as prohibiting sexual harassment that creates a hostile environment in the workplace. We concluded that G.L. c. 151B, § 4(1), prohibited discrimination not only in the hiring, firing and compensation of employees, but also in the "terms, conditions or privileges of employment" and that "within the broad sweep of that language falls conduct which creates a sexually harassing work environment." Id. at 162, 508 N.E.2d 587. Similarly, we conclude that sexual harassment need not affect a tangible condition of tenancy such as eviction, refusal to rent, or rental cost to be a violation of G.L. c. 151B, § 4(6). General Laws c. 151B, § 4(6), prohibits discrimination on the basis of sex in the "terms, conditions or privileges" of housing and we believe that sexual harassment that creates a hostile environment violates this prohibition.

A plaintiff states a prima facie case of sexual harassment in violation of G.L. c. 151B, § 4(6), by demonstrating (1) that the landlord subjected him or her ² to unsolicited harassment of a sexual nature, and (2) that the harassment was of such a nature that...