The U.S. Court of Appeals for the Seventh Circuit issued a sweeping victory for lesbian senior Marsha Wetzel, concluding that a senior living facility that allowed her to experience ongoing anti-gay abuse is accountable for discrimination against her.
When Wetzel previously spoke to ThinkProgress about the abuse she suffered at Glen St. Andrew Living Community, she described living in “some kind of a homosexual hell.” Not only was she repeatedly harassed by other residents, but the facility itself responded to her complaints by further punishing her and even trying to fabricate a case to justify her eviction. As the decision summarizes St. Andrew’s response, “They told Wetzel not to worry about the harassment, dismissed the conduct as accidental, denied Wetzel’s accounts, and branded her a liar.”
Indeed, the judges seemed to recognize the “hell” Wetzel experienced, describing it as “both severe and pervasive”:
For 15 months, she was bombarded with threats, slurs, derisive comments about her family, taunts about a deadly massacre [the Pulse shooting], physical violence, and spit. The defendants dismiss this litany of abuse as no more than ordinary “squabbles” and “bickering” between “irascible,” “crotchety senior resident[s].” A jury would be entitled to see the story otherwise. (We confess to having trouble seeing the act of throwing an elderly person out of a motorized scooter as one of the ordinary problems of life in a senior facility.)
The court did not have to weigh whether the law protected Wetzel from discrimination on behalf of her sexual orientation. The Seventh Circuit ruled last year in the employment case Hively v. Ivy Tech Community College that discrimination on the basis of sexual orientation is a form of discrimination on the basis of “sex,” even if sexual orientation isn’t specifically enumerated.
Instead, this case actually presented the court with the novel question of whether the Fair Housing Act holds landlords accountable for a hostile housing environment. As a senior living home, St. Andrew provides many ongoing services to its residents, including the maintenance of common areas and providing three meals a day, but it’s not a medical facility like a nursing home.
“The landlord does have responsibility over the common areas of the building, which is where the majority of Wetzel’s harassment took place,” the court explained. “And the incidents within her apartment occurred precisely because the landlord was exercising a right to enter.” There were many possible actions that St. Andrew could have taken to protect Wetzel from the abuse she was experiencing, including “the mere reminder” to those who were harassing her that they could be evicted. But it took none of them.
The court also noted the severity of the harassment. The facts Wetzel presented “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.” Because Wetzel had to isolate herself from the harassment, she was thereby deprived of the services St. Andrew had agreed to provide her.
A lower court had previously dismissed Wetzel’s complaints, so the effect of Monday’s ruling is to send the case back to the lower court for full consideration. Still, Lambda Legal, which represents Wetzel, celebrated “a tremendous victory for Marsha.”
“The Court today struck a blow for me and for all senior citizens — gay or straight — who deserve to feel safe and to be treated with respect,” Wetzel said in a statement. “That’s not too much to ask. No one should have to endure what I endured because of who I am.”