DOJ Issues Year-End Report on Fair Housing Enforcement

The Department of Justice (DOJ) this month released a "written statement" to report on its efforts in combating housing discrimination across the United States. The report noted several achievements:

• In fiscal years 2007 and 2008, the DOJ obtained settlements and judgments in fair housing and fair lending cases requiring the payment of a total of up to $12 million in monetary damages to victims of discrimination and civil penalties to the government.
  
  
• In fiscal year 2008, 39% of the DOJ's total cases and 45% of its pattern or practice cases alleged race discrimination.
  
  
• In fiscal year 2008, the DOJ conducted more than 600 paired tests, exceeding by almost 25% the number of tests conducted in fiscal year 2007, which in turn significantly exceeded the next highest number of tests conducted in any previous year since the inception of the DOJ's new testing program.

The statement, however, concluded on a more cautiously optimistic note:

In sum, the Division has contributed a great deal to the fight against housing and lending discrimination in this nation. Yet there remains much work to be done, and we will continue to dedicate our energy and resources to exposing and eliminating discriminatory housing and lending practices.

Let's see what 2009 will bring...

Obama Taps Donovan to Lead HUD

Shaun Donovan, New York City's housing commissioner, will be the next secretary of the Department of Housing and Urban Development (HUD), president-elect Barack Obama announced during his weekly radio address this morning. Mr. Obama noted that:

With experience that stretches from the public sector to the private sector to academia, Shaun will bring to this important post fresh thinking, unencumbered by old ideology and outdated ideas. He understands that we need to move past the stale arguments that say low-income Americans shouldn't even try to own a home or that our mortgage crisis is due solely to a few greedy lenders.

HUD is the federal agency charged with primary responsibility for enforcing the Fair Housing Act.

Glimpsing the Future of Fair Housing

This has been a pivotal year for the Fair Housing Act, as we have marked the 40th anniversary of the law that famously earned President Johnson's signature on April 11, 1968, exactly one week after the assassination of Dr. Martin Luther King, Jr.

As with any anniversary, it has been a time not only to reflect on where we once were and how far we've come, but — even more importantly — where we should be headed and what roadmap will take us there.

Yesterday, coinciding with the anniversary and in the wake of the subprime mortgage crisis, the National Commission on Fair Housing and Equal Opportunity released a much-anticipated report on the state of fair housing.

You may be surprised to learn that, according to the report:

More than four million instances of housing discrimination occur annually in the United States and yet fewer than 30,000 complaints are filed every year. In 2007, the 10 HUD offices processed 2,440 complaints, the 105 FHAP agencies processed 7,700 inquiries, and the 81 private fair housing agencies processed 18,000 complaints. Literally millions of acts of rental, sales, lending, and insurance discrimination, racial and sexual harassment discrimination, and zoning and land use discrimination go virtually unchecked. [Citation: Oral Testimony of Shanna Smith (Atlanta).]

So, where do we go from here?

The Commission offers a number of recommendations, aimed at increasing both the level and the efficiency of fair housing enforcement. Most notably, the Commission pushes for the creation of an independent fair housing enforcement agency to replace the existing enforcement structure at HUD. This new agency would have the staff, support, and resources "to make fair housing a reality."

The Commission's other recommendations include the revival of the President's Fair Housing Council; greater compliance with the Fair Housing Act's requirement that the government and its grantees "affirmatively further fair housing"; the strengthening of the Fair Housing Inititiatives Program (FHIP), which funds fair housing enforcement and education across the country; the adoption of a regional approach to fair housing; the emphasizing of fair housing principles in programs addressing the mortgage and financial crisis; the creation of a stronger fair housing awareness campaign; and the pursuit of a collaborative approach to fair housing issues.

When we look back another 40 years from now, perhaps it will be these recommendations that will have proven their merit in shaping the future of fair housing.

Remembering Why Accessible Apartments Are Accessible

It sounds like a reasonable rule for an apartment complex that offers some accessible apartments: Let tenants without disabilities rent an accessible apartment, but have them agree to move if a tenant with a disability should need the apartment as an accommodation.

One lawsuit and an undisclosed financial settlement later, that's the rule that a federally assisted complex in Henrietta, New York has agreed to adopt, according to the Democrat and Chronicle. The lawsuit was brought by a former tenant who, as a paraplegic, was promised one of the complex's six accessible apartments but then told there's a three-year waiting list. The accessible apartments featured wider doors and other amenities aimed at helping people who use wheelchairs navigate the apartment and use kitchen counters. However, all six such apartments were reportedly occupied by tenants who didn't need them, while the one who did struggled in a nonaccessible apartment.

Making sure that accessible apartments get used by the very people for whom they were intended makes sense, don't you think?

MUST-READ: HUD Guidance on Sexual Harrassment

On November 24, 2008, the U.S. Department of Housing and Urban Development (HUD) issued guidance on what constitutes sexual harassment under the Fair Housing Act. The Guidance consists of 14 helpful Q&As, covering topics ranging from same-sex sexual harrassment to a landlord's or property manager's liability for harrassment by employees.

Read the full text of the new HUD guidance (dated November 17, 2008) here or on the "Must-Reads" page of Fair Housing Helper.

Assisted Living Facility Needs Assistance with Motorized Wheelchair Policy

The Department of Justice (DOJ) filed a fair housing complaint against the owners and operators of a 58-unit Evansville, Indiana independent and assisted senior living facility, on behalf of two tenants who were evicted for their motorized wheelchair use. The complaint, filed November 7, 2008, alleges that the facility's policy of refusing to let tenants use motorized wheelchairs or scooters in their apartments or in the facility's dining room violates the Fair Housing Act's ban on disability discrimination.

In one alleged instance, when one of the evicted tenants arrived at the dining room on his motorized wheelchair, facility employees reminded him of the policy and then attempted to "forcibly remove" him from his wheelchair. The DOJ filing follows HUD's issuance of Charges of Discrimination against the facility on September 25.

Interesting to note:

You may be surprised to read that an assisted living facility is imposing this ban, since you might expect such a place to be particularly attuned to the needs of tenants with disabilities and more aware of disability discrimination laws. According to the complaint, the facility's own admission requirements state that applicants must be "ambulatory," which the administrator explained means "capable of moving from place to place... even if the person required some form of assistance in moving about, be it a cane, walker, or a[n] electric or nonelectric wheelchair or scooter." (Emphasis added.)

Coop in the Doghouse for 'Unreasonable' Support Animal Rules

HUD issued a discrimination charge, dated September 29, 2008, against a New York City coop for not allowing a family to keep a dog to help their autistic child. After the 11-year-old boy's doctor told his parents she's prescribing an emotional support animal, the parents requested an exception to the coop's no-pet policy as a reasonable accommodation for their son's disability.

The coop agreed to let the parents get a support dog for their son, but with conditions that the parents alleged were unreasonable, including:

• Requiring the parents to purchase a $1 million liability insurance policy
• Imposing a weight limit of under ten pounds
• Banning the use of the passenger elevator when transporting the dog
• Imposing a two-hour limit on how long the dog may be left alone in the coop
• Requiring that the dog be muzzled while in the common areas

HUD agreed with the parents, charging the coop with violating the Fair Housing Act's ban on disability discrimination. A HUD administrative law judge will hear the matter, unless the coop or the parents choose to bring the case to a federal district court.

President Obama and Fair Housing

Yesterday, the nation went to the polls and elected Barack Obama as the 44th President of the United States. When Mr. Obama takes the oath of office on January 20, 2009, he will make civil rights history as he becomes the country's first black President.

What will this mean for fair housing? Will Mr. Obama and a heavily Democratic Congress expand the Fair Housing Act to cover more types of discrimination, such as sexual orientation or age? And is the fact that voters made a clear choice for a black candidate a sign that fair housing violations will trend down?

What do you think?

Survey Shows Some Voucher Holders Face Discrimination

Do housing choice (f/k/a Section 8) voucher holders face discrimination?

Yes, according to an October 2008 survey conducted by the Equal Rights Center ("ERC"), a nonprofit civil rights organization located in Washington, D.C. After testing 99 privately owned properties in Montgomery County, Maryland, which bans discrimination based on "source of income," the ERC found that landlords or property managers discriminated against voucher holders 15% of the time.

In 11% of cases, the landlord or property manager refused to accept an application from a voucher holder. In 3% of cases, landlords or managers restricted the use of vouchers, such as by saying the property had a quota. Finally, in one case, a landlord or manager tried to impose different terms and conditions, denying voucher holders incentives such as a month's free rent and a "quick decision" bonus for signing the lease promptly.

Discrimination in Iowa Housing Ads Rare

Now that the Fair Housing Act (FHA) has been on the books for 40 years, the Iowa Civil Rights Commission decided to conduct a statewide study to determine compliance levels when it comes to advertisements for residential rentals and sales.

In a press release dated October 24, 2008, the Commission reported that a mere .79% of the ads analyzed in the study — 76 of 9,646 — were flagged as "possibly discriminatory." Roughly half of these — 40 of 76 — were "likely disriminatory," with 36 of the 40 ads running afoul of the FHA's ban on familial status discrimination. The Commission also noted that no single publication it reviewed contained more than four possibly discriminatory ads.

Avoid "Those People" or "Live in the Projects"

The U.S. Department of Housing and Urban Development (HUD) charged two Tallassee, Alabama landlords with violating the Fair Housing Act (FHA) for allegedly threatening a white family with eviction after the landlords spotted the tenants chatting with black neighbors in the front yard. According to the September 30, 2008 Charge, the landlords made the following remarks to the tenants, which were captured in tape-recorded phone call conversations:

• "If y'all want to have African-Americans to visit, we're going to ask you to move."
• "This has never happened with any renters that we've had... It's not fine on our property."
• "[W]e're not having those people at our property... [W]e own the property and... that's never happened and we're not going to start today with it happening."
• "We don't want colored people on the property and if you do you should find somewhere else to live."
• "You should live in the projects if you want to interact with those people."
• "I will sell the house if I have to in order to get you out... I don't care if you made a complaint to HUD, you have to move."

Unless either the landlords or the tenants choose to have the matter heard in federal court, the landlords now face a hearing with a HUD administrative law judge, who may award damages for actual loss as a result of the discrimination as well as for emotional distress, humiliation, and loss of civil rights; injunctive and other equitable relief to deter further discrimination; attorneys' fees; and a civil penalty. If the matter does go to federal court, the landlord also risks punitive damages.

"Hard and Fast"? Not So Fast...

The owners and operators of an 85-unit Lancaster, Pennsylvania apartment complex have agreed to pay for allegedly refusing to rent apartments to people who need a guide dog to accommodate a visual impairment.

According to the proposed consent order, the rental agent informed testers (posing as visually impaired prospects) that the complex's policy of banning dogs was a "hard and fast rule," and that management told her that no dogs — including guide dogs — may live on the property under any circumstances. The owners and operators, however, claimed they never gave the rental agent such instructions and that they would allow a tenant to live with a dog if the animal were needed as a reasonable accommodation for a disability.

Under the order, which the Department of Justice (DOJ) filed on October 8, 2008 and is subject to court approval, the owners and operators will pay up to $25,000 to compensate victims of the alleged discrimination, on top of a $35,500 civil penalty. In addition, they have agreed to set up non-discriminatory procedures and undergo fair housing training.

Judging by the Color of One's Voice

Fair Housing Marin, a fair housing advocacy organization in California's Marin County, conducted a survey that involved having black and white testers (posing as prospects) call 25 local landlords who had advertised apartments on Craigslist.

The result, according to an article in the Marin Independent Journal, was that eight of the landlords — nearly a third — showed less favorable treatment to the black callers. This included not returning the black callers' phone messages, offering them higher rent or less flexible terms, not telling them about as many available apartments, and not answering their questions about the advertised rentals.

Interesting to note:

1) This is the first time the organization has conducted a survey to test for discrimination based only on telephone conversations.

2) Before conducting the survey, Fair Housing Marin taped the voices of their testers and had them evaluated by a community panel, which reportedly was able to identify each tester as black or white.

Mobile Home Park's "Report Card Policy" Gets Bad Grades

According to a September 23, 2008 report by Local10.com, the owners of a Florida mobile home park denied housing to a father and his 9-year-old son after learning that the boy got a bad grade (an "F" in conduct in his science class) on his school report card. The owners claimed it was just part of a valid effort to keep out troublemakers.

But the father argued that the owners' policy, which required children to submit quarterly report cards and that apparently made their continued housing contingent upon receiving good grades, violated the Fair Housing Act's ban on familial status discrimination. The owners changed their minds and welcomed the father and his son into their mobile home park.

Is such a policy fair since it only denies housing to certain families with children (i.e., those with children who receive bad grades)? Is this type of policy fair only as long as similar "anti-troublemaking" screening policies are imposed on adults? If the boy had gotten an "F" in something other than conduct, should that matter?

What do you think?

Requiring Men to Mow the Lawn Doesn't Cut It

The manager of an Idaho property settled a case with the Department of Justice (DOJ) for his alleged sex discrimination under the Fair Housing Act. According to the DOJ complaint, the property manager refused to rent a single-family house to a single mother, her children, and a female friend because the manager had a bad experience with a single mother and her children who didn't care for their yard or perform other maintenance on another rental house he managed.

The consent decree, which a federal court entered on August 10, 2005, required the property manager to send the single mother $5,000 along with a written apology. He also agreed to take other steps to ensure fair housing compliance going forward, including replacing "husband's employment" and "wife's employment" with "if applicable, spouse's employment" on his rental application.

Did the property manager get off easy? Or was the settlement too harsh?

What do you think?

LANDMARK: Ohio Landlord Agrees to Pay $1 Million to Settle Sexual Harrassment Suit

A Cincinnati, Ohio landlord has agreed to pay $1 million — including $890,000 in compensation to 12 female tenants "for personal injury and emotional distress" and $110,000 as a civil penalty — for admittedly violating the Fair Housing Act's (FHA) ban on sex discrimination. The Department of Justice (DOJ) is calling the September 4, 2008 consent judgment "the largest monetary settlement the Department has ever obtained in a case alleging sexual harassment violations under the FHA."

According to the DOJ complaint, the landlord subjected these tenants to unwanted verbal sexual advances and touching, entered their apartments without notice or consent, granted or denied benefits in return for sexual favors, and took adverse action against tenants who refused or objected to his sexual advances.

Interesting to note:

Since January 1, 2001, the DOJ's Civil Rights Division has filed 259 cases to enforce the Fair Housing Act, including 27 cases involving alleged sex-based discrimination, according to the DOJ press release.

Montana Landlords Now Have 33,000 Reasons to Rent to Teens

Little did the husband-and-wife team that owned and managed an eight-unit Montana apartment building suspect that their refusal to rent to a family with a teenage daughter would become a federal case. Apparently, they weren't aware that the Fair Housing Act bans discrimination based on familial status, which means discriminating based on the presence of any children under 18 is illegal.

According to the Department of Justice's complaint, one of the landlords had "expressed concern that teenagers like to entertain friends and cause noise, and that the older residents at the subject property would not tolerate noise." Despite assurances from the prospect, the landlord declined to show the apartment, instead advising her to "seek housing that was better suited for her daughter."

Without admitting liability, the landlords settled the lawsuit on July 16, 2008, agreeing to pay $33,000 — $3,834 to the aggrieved prospect, $6,666 to her attorney, $7,500 to the state fair housing agency, and $15,000 to the agency's attorney. (The landlords will also attend fair housing training, develop nondiscrimination policies, and file annual progress reports, in connection with the consent order.)

Interesting to note:

After HUD issued its charge of discrimination on March 29, 2007 that the landlords had discriminated, the landlords reportedly rejected a $4,000 settlement, claiming that "$4,000 was too much."

The Fair Housing Act? Fugheddaboutit!

Since January 2008, the Department of Justice (DOJ) has notified several of the New York City's top landlords and their architects that some of their buildings aren't accessible to people with disabilities, in violation of the Fair Housing Act's (FHA) design and construction requirements, according to reporting on August 18, 2008 by The New York Times. The FHA's requirements generally apply to multifamily buildings that were designed and constructed "for first occupancy" after March 13, 1991. (See Section 3604(f)(3)(C) of the FHA and its relevant regulations, 24 CFR 100.205.) They require, for example, usable doors (by a person in a wheelchair), bathroom walls that are reinforced for the possible later installation of grab bars, and an accessible route into and through each apartment.

The landlords argue that they have been complying with the FHA through their successful compliance with Local Law 58, a city accessibilty law that took effect in 1988. They fear that lawsuits could require them to undergo a costly retrofitting of their buildings, which could involve some 100,000 apartments and a pricetag in the tens of millions of dollars.

The DOJ, however, claims that compliance with the FHA isn't the same as compliance with Local Law 58, which isn't listed as a safe harbor for FHA compliance.

What do you think?

Owners Balk After Trash Talk

Most cases involving reasonable accommodations for disabilities follow a familiar formula:

1. Resident requests accommodation
2. Owner ignores/denies request
3. Resident sues

But in a recent case from Puerto Rico (which, as part of the United States, is covered by the Fair Housing Act), there was a twist. The owners of a coop decided to shut down the trash room on each floor of their building and require residents to personally dispose of their trash outside. A resident with fibromyalgia, fatigue, and depression claimed that her disabilities prevented her from complying, and so the owners agreed to collect her trash. However, after collecting the resident's trash on three occasions, the owners reversed course. Not only did they stop accommodating the resident, who continued to leave trash outside her door for collection, but they issued a resolution reprimanding the resident for her behavior and ordering the resident to dispose of her trash in an indoor receptacle that was too small.

The resident filed a fair housing complaint with HUD, and four months later, the owners reversed course again. This time, they gave the resident a key to access the trash room on her floor. Problem solved, it would seem, but the damage was done. On August 5, 2008, HUD charged the owners with discrimination, finding that the resident "suffered... emotional and physical distress, embarrassment and humiliation." Among other damages, HUD's attorneys are requesting a $16,000 penalty for each violation.

Coming Soon: A Majority of Minorities

Some linguists may argue it's impossible, but minorities in the United States are slated to become the majority in this country within just a matter of decades. According to an August 14, 2008 report by the U.S. Census Bureau, this significant demographic shift is projected for 2042.

Here are some highlights of the Bureau's projections:

• After passing the 50% mark in 2042, minorities in the U.S. will make up 54% percent of the population in 2050 (up from roughly 33% today).
• Among children, minorities will become the majority as early as 2023 — and rise to 62% in 2050 (up from roughly 44% today).
• Nearly one in three residents will be Hispanic. The Hispanic population will nearly triple to 132.8 million (up from roughly 46.7 million), and its share of the country's population will double to 30% (from 15%).
• The black population will increase to 65.7 million from roughly 41.1 million today, although this represents only a 1% increase (from 14% to 15%) of the country's total population.
• More than 88.5 million residents will be 65 or older (up twofold from the 38.7 million today) and by 2030, when all baby boomers will be at least 65, roughly 20% of all residents will be 65 or older.

Since the Fair Housing Act, not to mention state and local housing discrimination laws, function in large part to protect minorities, what effect will this demographic shift have on the need for such laws? Will there be fewer fair housing complaints and a lower incidence of government enforcement? What will fair housing be like in a world where minorities are the majority?

What do you think?

The Game of the Name

A study reported in the Journal of Applied Social Psychology (vol. 36, issue 4, April 12, 2006) showed that just a prospect’s name can influence a landlord to make housing decisions based on racial stereotypes. Researchers sent 1,115 e-mails in 2003 to Los Angeles County landlords in response to advertisements for available apartments. The e-mail queries were randomly signed using one of three names that implied either Arab, African-American, or white ethnicity. The researchers sent these e-mails over a 10-week period — six weeks before the Iraq War began and four weeks during the conflict.

The result: The e-mails that were signed using the Arab name got significantly fewer positive responses than the ones signed using the white name, and the e-mails signed using the African-American name did even worse. This pattern persisted in all rent categories, in corporate and privately owned apartment complexes, and both before and during the war in Iraq.

Racism + Mistake = Lawsuit

On May 20, 2008, the Department of Justice sued the owner and manager of the Camp Joy Marina — a Louisiana residential community of rental and owner-occupied condominiums and townhouses — for racial discrimination under the Fair Housing Act. According to the complaint, the owner and manager interfered with a couple's attempt to sell their townhouse to another couple the owner and manager mistakenly believed were black. Apparently, a visit to the property by the white couple's black realtor confused the owner and manager. The owner told the realtor he did not want "those kind of people" moving in, and he threatened to cut off the water and sewer utilities. As a result of this interference, the buyers withdrew from their agreement to purchase the townhouse. The government now seeks a court order prohibiting future discrimination by the owner and manager and requiring them to pay monetary damages to the sellers as well as a civil penalty.

Will the government win? Will the fact that the owner and manager were mistaken about the purchasers' race be taken into consideration as mitigating circumstances? Should it?

What do you think?

Discrimination by Gentrification?

In July 2008, a federal judge gave the green light to a fair housing discrimination lawsuit against a Long Island municipality and owners of an apartment building brought by plaintiffs claiming the defendants tried to push a core Hispanic population out of town. The plaintiffs include Hofstra Law School and Hispanic tenants of the Farmingdale, N.Y. building, who had been evicted so that their aging building could be fixed up. While that part might have been agreeable to the tenants, what they didn't find appealing was the fact that the building would be redeveloped for luxury living — along with higher rents, effectively pricing these tenants out of the "Little Latin America" neighborhood. They allege the redevelopment is a maneuver by the Village of Farmingdale to drive Hispanics (including several day laborers) away through gentrification or "upscaling." The Village denies discrimination as a motive, and the owners point to their record of having rented to Hispanic tenants for years, according to a report from Newsday.

Should the plaintiffs have to prove that the Village actually harbored a discriminatory intent in recasting the building as luxury apartments? Would it matter if the plaintiffs can show that the Village treated other aging buildings in its jurisdiction differently? Should municipalities be required or expected to take into consideration the ethnic makeup of a neighborhood before taking actions that could alter it?

What do you think?

A Post-Katrina "Penalty" for Dark Skin

According to a 2006 study involving 2,300 individuals conducted by The Washington Post, washingtonpost.com and Shanto Iyengar, director of the Political Communication Lab at Stanford University, Americans feel more willing to provide extended government assistance to victims of Hurricane Katrina who are white. The "penalty” for being a black Katrina victim is about $1,000, with participants showing preference for lighter-skinned blacks and other minorities.

Read Richard Morin's June 9, 2006 column in The Washington Post, or read the full analysis of the results, "Natural Disasters in Black and White: How Racial Cues Influenced Public Response to Hurricane Katrina."

Mezuzah Mishigas: Reasonable Accommodations for Religion?

On July 10, 2008, a federal appeals court ruled that a Chicago condominium association complied with the Fair Housing Act (FHA) in not making an exception to its “hallway rule” barring owners from placing objects outside their doors. The exception in question concerned the placing of mezuzot (the plural of mezuzah, Hebrew for “doorpost”), which are small decorative cases containing religiously significant parchment that observant Jews are widely known to affix to their doorframe.

The court ruled that the hallway rule didn’t violate the FHA because it’s “neutral with respect to religion.” In other words, the condo association’s ban covers all items without singling out religious ones or items relating to a particular religion. The court likened the request for an exception to “reasonable accommodations,” pointing out that the FHA’s requirement to make reasonable accommodations apply only to people with disabilities. There is no requirement to reasonably accommodate people based on their religion (or sex, race, or anything else) but only a requirement of equal treatment, the court said.

The dissent, however, claimed that the condo association’s refusal to make an exception in this case is, in essence, a “constructive eviction” of observant Jews, who must choose between honoring their faith and keeping their home.

Should reasonable accommodations for people based on characteristics other than disability be required under the FHA? Should the court have ordered the condo association to make the exception on the ground that, while facially neutral, the rule has a “disparate impact” on Jews? Or, should the court have required the exception because it really amounts to intentional discrimination on the part of the condo association?

What do you think?

Interesting to note:

1) By the time the lawsuit was filed, the association’s board had adopted a religious exception to the hallway rule and had instructed its staff to leave mezuzot, crucifixes, and other religious items. The plaintiffs still sued to recover damages for distress they had suffered, plus an injunction to prevent the association from reversing itself.

2) As of December 14, 2005, Chicago has an ordinance that denies a residential building authority to prevent any owner or lessee “from placing or affixing a religious sign, symbol or relic on the door, door post or entrance of an individual apartment, condominium or cooperative housing unit” unless necessary to “avoid substantial damage to property or an undue hardship to other unit owners.”

3) As of January 1, 2007, an Illinois state law requires condo associations to establish a “reasonable accommodation for religious practices, including the attachment of religiously mandated objects to the frontdoor area of a condominium unit.”