10 Key Steps for Resolving Fair Housing Complaints
In this month’s lesson, the Coach discusses what to do if your community is ever accused of a fair housing violation. The stakes have never been higher as federal, state, and local fair housing agencies, along with private fair housing organizations, continue to vigorously enforce fair housing laws. Each year, HUD awards millions in grant money to fund fair housing enforcement by public and private fair housing agencies.
Example: Late last year, HUD awarded more than $23 million to a nationwide network of nearly 80 private fair housing organizations so they can carry out testing and enforcement activities. “It’s been 50 years since the passage of the Fair Housing Act, yet the fight against housing discrimination continues,” HUD Secretary Ben Carson said in a statement. “Today we are making another investment to support our fair housing partners and protect families from discrimination.”
It’s costly, not to mention time consuming, to resolve discrimination complaints filed with authorities.
Example: In March 2019, HUD announced that the owners of a Minnesota rental home and a realty company agreed to pay $74,000 to resolve allegations that they refused to rent the house to a family of five adults and six minor children because they are Native American and Hispanic and had minor children. HUD’s charge alleged that the owners and the real estate broker discouraged the multigenerational family from renting the home by offering them less favorable rental terms, including increasing the requested monthly rent by $1,000.
“Denying a family housing because of their ethnicity or familial makeup not only robs them of a place to call home, it violates the law,” Anna María Farías, Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Today’s announcement reaffirms HUD’s commitment to protecting the housing rights of families and ensuring that all landlords comply with the Fair Housing Act.”
Example: In March 2019, a New Jersey housing cooperative and its property management contractor agreed to pay a former resident $20,000 to resolve allegations they unlawfully tried to evict her and her daughter over an emotional support dog that aided the daughter following her father’s death, according to Attorney General Gurbir S. Grewal. The mother filed the complaint with the New Jersey Division on Civil Rights, alleging that, despite her explanations and a letter from her daughter’s physician, the co-op board cited her for violating the co-op’s no-pets rule, ordered her to get rid of the dog and, when she failed to do so, initiated eviction proceedings against her.
“This case should serve as a message to landlords—as well as the governing boards of condominiums and co-ops across the state—that they need to know the law and proceed with deliberation when confronted with a request for such an accommodation,” Grewal said in a statement. “The New Jersey Law Against Discrimination (LAD) and the federal Fair Housing Act were created, among other reasons, to protect the rights of people with disabilities—including those who legitimately need service dogs and emotional support animals. We are committed to upholding the law, and to holding accountable those who fail to follow it.”
Example: In December 2018, the New York City Commission on Human Rights announced an $80,000 settlement with a housing management company controlling 100 buildings with 5,000 units citywide, charged with discriminating against prospects based on their race, color, and national origin for denying housing to applicants with criminal histories without performing individualized analysis of those records.
“For every New Yorker, access to housing is an essential part of maintaining a safe and stable life for themselves and their families, which is why the Commission is conducting strategic and thorough investigations in this area to root out policies that wholesale discriminate against entire communities,” Sapna V. Raj, Assistant Commissioner of the Law Enforcement Bureau at the NYC Commission on Human Rights, said in a statement. “Everyone in New York City deserves equal access to housing and we hope the Commission’s strategy in this case serves as a model for other cities in protecting vulnerable communities from discriminatory housing policies.”
In this lesson, we’ll explain the law and give you 10 rules to follow to help you understand how to handle fair housing complaints. Then you can take the Coach’s Quiz to see how much you’ve learned.
WHAT DOES THE LAW SAY?
The Fair Housing Act (FHA) prohibits discrimination in the rental of housing based on seven protected characteristics: race, color, religion, sex, national origin, familial status, and disability. In addition, many state and local laws protect other characteristics, such as marital status, sexual orientation, and source of income.
In a nutshell, the FHA outlaws housing practices that either directly or indirectly discriminate against anyone based on a protected characteristic, including:
- Refusing to rent or denying a dwelling;
- Refusing to negotiate for housing or falsely denying that housing is available for rental;
- Making housing unavailable;
- Setting different terms, conditions, or privileges for the rental of a dwelling;
- Providing different housing services or facilities;
- Advertising or making any statement that indicates a limitation or preference; and
- Threatening, coercing, intimidating, or interfering with anyone exercising a fair housing right or assisting others who exercise that right.
There are also special provisions to protect individuals with disabilities by making it unlawful to:
- Refuse to make reasonable accommodations in rules, policies, practices, or services if necessary for the disabled person to use the housing; and
- Refuse to allow reasonable modifications to the dwelling or common use areas, at the resident’s expense, if necessary for the disabled person to use the housing.
The disability provisions also require most multifamily communities built since the early ‘90s to comply with specified accessibility requirements.
10 RULES FOR RESOLVING FAIR HOUSING COMPLAINTS
Rule #1: Call Your Lawyer
If you receive notice of a fair housing complaint, one of your first steps should be to contact an attorney well versed in fair housing law, advises Atlanta-based fair housing attorney J. Mike Williams. Unless you have the in-house legal expertise to handle formal fair housing cases, your attorney can prepare your response, oversee the investigation, and communicate with the HUD investigator on your behalf.
F. Willis Caruso, Professor Emeritus of John Marshall Law School, agrees, saying it’s a good idea to get someone who understands the federal, state, and local fair housing laws applicable to your community and how they are enforced. And it’s a definite plus if your lawyer—and you—know who the people are at your local HUD office and their counterparts on the state and local level.
Contact your lawyer as soon as you can after receiving the complaint. It’s a mistake to delay, hoping the whole thing may blow over. You’re supposed to respond within 10 days, but your attorney will know how to get more time to investigate and file a response. For example, Williams says that the first thing he does after being notified of a complaint is to file an entry of appearance and request an extension of time to file a response.
With the additional time, Williams conducts his own investigation. He looks for anything that seems relevant from reading the complaint and gathers the facts by collecting relevant documents and interviewing anyone involved. Then he’ll prepare an answer and position statement to be filed with HUD or the state or local agency.
Coach’s Tip: Even when you feel comfortable handling many of these activities on your own, it’s good idea to let your attorney know what’s going on—just in case you later find yourself in need of legal assistance to resolve the matter.
Rule #2: Get to Know the Ropes
Familiarize yourself with the enforcement process so you’ll know what to expect and be better equipped to resolve complaints as painlessly as possible.
Who can file a fair housing complaint? Claims can be filed by an “aggrieved party,” which generally means anyone who claims to have been—or is about to be—injured by a discriminatory housing practice. That includes prospects, applicants, residents, and anyone associated with them, as well as anyone affected by discriminatory advertising. Private fair housing advocates and government agencies on the federal, state, and local levels may also pursue fair housing complaints.
Who may be accused of a fair housing violation? Owners, managers, and employees may all may face a fair housing complaint. Employees or managers who directly engage in a discriminatory activity may be held liable for violating fair housing law. Owners may be held liable directly for their own actions—such as maintaining an exclusionary admittance policy—and indirectly for discriminatory actions of their managers, employees, and agents performed on their behalf.
How can claims be filed? In general, there are two routes to filing a federal fair housing claim—one is an administrative process in which an aggrieved party files a complaint with HUD or its state or local counterpart. The other is by filing a lawsuit in federal or state court.
There is no requirement that complaints must be filed with HUD before a lawsuit is filed, so an aggrieved party can bypass the administrative process and go directly to court. Furthermore, the two options are not mutually exclusive: An aggrieved party may file both an administrative complaint with HUD or its state or local counterpart—and a lawsuit in court, although there are procedural rules on the timing of the proceedings when both are pursued at the same time.
Each has its advantages and disadvantages, with different rules governing time limits, procedures, and potential recovery. It doesn’t cost anything to pursue the administrative process, but it has a shorter statute of limitations for filing complaints—within one year of the alleged discriminatory practice—and doesn’t allow for recovery of punitive damages.
Private litigation has a longer statute of limitations—generally two years—for filing suit and offers the potential to recover punitive damages. But it takes longer and costs more to resolve disputes through the courts. The procedures for private litigation depend on whether it’s based on federal, state, or local law.
How are administrative complaints handled? HUD complaints may be filed online, or by email, telephone, or mail. HUD says complaints should include as much information as possible, including the name and address of the party making the complaint, the location of where the allegedly discriminatory action occurred, a short description of what happened, and the date of the alleged violation.
Complaints also may be filed with the state and local government agencies that participate in HUD’s Fair Housing Assistance Program (FHAP). The FHA requires complaints originally filed with HUD to be referred to state or local FHAP agencies, which investigate most administrative fair housing complaints filed in the county. The procedures used by HUD’s FHAP partners to handle complaints may vary by agency. You’ll find a list of FHAP agencies on HUD’s website at https://www.hud.gov/program_offices/fair_housing_equal_opp/partners/FHAP/agencies.
Within 10 days, the agency sends a copy of the complaint to anyone named in the complaint, including the owner, management company, or staff, who are required to file an answer within 10 days of receiving the mailed notification.
Investigation: The next step is an agency investigation to determine whether there is reasonable cause to believe that a discriminatory housing practice has occurred or is about to occur. The investigation will include obtaining and reviewing relevant documents, interviewing the parties and witnesses, and, when appropriate, conducting on-site investigations.
Conciliation: Throughout the investigation, the investigator will try to help the parties work out a settlement through a process known as “conciliation.” Any settlement agreement is voluntary; no party is required to accept an offer. If the parties sign a conciliation agreement, the agency ends its investigation and closes the complaint without making a determination on the merits of the complaint.
Charges: If the case doesn’t settle through conciliation, the investigator completes the investigation and issues a report. If the agency finds no reasonable cause to believe that a discriminatory housing practice has occurred or is about to occur, HUD will dismiss the complaint. That doesn’t necessarily end the dispute, because the complainant still has the right to file a private lawsuit even if HUD dismisses the complaint.
If HUD does find reasonable cause to believe that a discriminatory housing practice has occurred or is about to occur, then it issues a charge of discrimination. The charge is not a conclusive finding of discrimination, although it may be used in evidence in later proceedings. It still takes a hearing—either by an administrative judge or by a court—to determine liability for a fair housing violation.
Once a charge has been issued, the parties can pursue the matter in either an administrative proceeding or in court.
HUD administrative proceedings: If the parties choose to pursue administrative proceedings, HUD represents the government and brings the case on behalf of the aggrieved person, who has the right to join the proceedings to represent his or her own interests.
The case goes to an administrative law judge (ALJ). Unless the parties agree to a settlement, the ALJ conducts an administrative hearing. At the hearing, the parties have the right to appear in person, to be represented by legal counsel, to present evidence, to cross-examine witnesses, and to conduct discovery of evidence.
If the ALJ finds that discrimination has occurred, the judge may award damages, order payment of attorney fees, issue injunctive or other equitable relief, and impose penalties to vindicate the public interest.
Court proceedings: The other option is to go to federal court, but the election to do so must be made within 20 days after being served with the charge. The case will be litigated by the Justice Department, which brings the case on behalf of the aggrieved person and the public interest. The aggrieved party also may hire its own attorney. Either party has the right to request a jury trial.
If discrimination is proved, the court may award damages and attorney fees, impose penalties, and issue injunctive or other equitable relief. The court may also award punitive damages.
Coach’s Tip: HUD may file what is known as a “Secretary-initiated complaint” directly against those whom the department believes may be in violation of the FHA. Secretary-initiated complaints often involve significant issues that are national in scope or warrant relief in the broad public interest. For example, in March 2019, HUD charged Facebook with violating the Fair Housing Act by encouraging, enabling, and causing housing discrimination through the company’s advertising platform. Following its investigation of a Secretary-initiated complaint, HUD alleged that Facebook unlawfully discriminates based on race, color, national origin, religion, familial status, sex, and disability by restricting who can view housing-related ads on Facebook’s platforms and across the Internet. HUD also alleged that Facebook mines extensive data about its users and then uses those data to determine which of its users view housing-related ads based, in part, on these protected characteristics.
Rule #3: Learn About State and Local Process
Become familiar with the state and local laws and procedures applicable to your community. Anyone seeking to file a complaint against you could bypass HUD and file a claim directly with your state’s fair housing agency or the local fair housing office in your county or city.
These include complaints that could have been filed on the federal level, since all state and local laws overlap with the federal ban on discrimination based on race, color, religion, sex, familial status, national origin, and disability. State and local fair housing agencies can—and do—pursue claims for discrimination based on any of these protected characteristics.
Example: In January 2019, the California Department of Fair Employment and Housing (DFEH) announced that a property management company agreed to pay $16,000 for allegedly discouraging a family from applying for an apartment rental. The complaint was filed by a family of four, who alleged the company refused to allow them to rent a unit in a multi-unit complex because the property manager didn’t consider children to be appropriate residents for the complex. Allegedly, the property manager made statements that the unit might be overcrowded, that neighbors might not be happy with noise, and that the building was for “business people.”
“Families with minor children are entitled to equal treatment by housing providers,” DFEH Director Kevin Kish said in a statement. “Unreasonable occupancy restrictions and comments intended to discourage families with minor children from applying can have the same effect as an outright denial of housing and can likewise constitute illegal discrimination.”
Aggrieved parties may also sue for discrimination based on characteristics protected under state or local—but not federal—law such as sexual orientation, source of income, and the like.
Example: In March 2019, a Massachusetts property management company agreed to pay $600,000 to settle allegations that the company systematically discriminated against applicants and tenants of a Massachusetts community based on their race and whether they qualified for public assistance vouchers, Attorney General Maura Healey announced. The settlement resolves allegations that the company violated Massachusetts fair housing, civil rights, and consumer protection laws through discriminatory leasing policies and practices in an effort to limit rentals at the 900-unit community to minority and low-income tenants.
“Access to safe, affordable housing is critical to ensuring economic security for all residents of Massachusetts and their families,” Healey said in a statement. “Today’s settlement demonstrates my office’s commitment to taking action against those who engage in discriminatory conduct that creates unfair barriers to housing.”
Complaints filed on the state or local level may vary, so you should familiarize with the procedures that apply to your community. It’s important, Caruso says, because fair housing advocates are increasingly willing to bypass HUD to file claims directly with state or local fair housing agencies in appropriate cases.
Coach’s Tip: For more detailed information about state and local fair housing laws, see the April 2019 lesson, “Complying with State and Local Fair Housing Law.”
Rule #4: Designate a Fair Housing Coordinator
If you don’t have one already, appoint someone to act as your point person to expedite your response to the complaint. The best person to choose is a manager or experienced employee who understands fair housing laws and procedures and can act as your in-house resource for all fair housing matters, including training, recordkeeping, and procedures.
If your community receives a formal complaint, the fair housing coordinator will oversee your investigation and act as the point-of-contact with your attorney, if you have one, or with the HUD investigator. The coordinator will collect the necessary documents and information on anyone who witnessed or may have witnessed the events.
Rule #5: Collect Relevant Documents and Witness Information
When a complaint arrives, read it carefully to determine exactly what your community has been accused of, who was allegedly involved, and when it was supposed to have happened. Then pull together the relevant documentation needed to defend yourself.
Start with any documents that detail interactions with the person who filed the complaint. If, for example, the complaint alleges steering or other misconduct while showing units, you’ll need to collect records such as guest cards and files detailing which apartments were available and which ones were shown. If your community is accused of discrimination during the application process, you’ll need a copy of the application, the information provided by the applicant, the results of applicant screening, and the reasons that the application was denied.
If the complaint involves a resident, gather documents related to the complaint, such as maintenance records, disability-related accommodation or modification requests, complaints by or about the resident, or records detailing the reasons leading up to and including the eviction proceedings.
After you collect the relevant documents, identify any potential witnesses who may have had dealings with the person who filed the complaint. That may include current or former management and staff as well as current or former residents.
Coach’s Tip: Be prepared to pull together documents commonly requested by HUD investigators, such as your community’s fair housing policies, documentation of fair housing training, and pertinent rules and procedures.
Rule #6: Cooperate with Investigator
Soon after the complaint has been accepted, HUD or its state or local counterpart will begin its investigation by requesting documents and other information to determine whether there’s reasonable cause to believe that your community violated fair housing law.
It’s in your best interest to cooperate in the investigation, but Williams counsels clients to “pack their patience.” Though HUD investigations are officially supposed to be done within 100 days, it’s common for them to take longer.
Williams says you should gather the documents requested by the investigator. Depending on the nature of the complaint, the data request may include rent rolls and comparables to show that people were treated the same under similar circumstances. Let’s say an African-American resident files a race discrimination complaint alleging that he received a nonrenewal for noise, but that you ignored similar infractions by white residents. You’ll need documentation to show what your policy is—and how you treated people the same, regardless of their race.
Williams says that it’s customary for investigators to interview almost everyone involved and you have the right to have your attorney present when witnesses are questioned.
Rule #7: Consider Conciliation
During the investigation phase, the law requires HUD (or its partner agency) to try to work out a settlement through a process known as “conciliation.” You may not want to settle on principle—or feel like it’s unfair that you’re being accused of something you didn’t do, but it’s ultimately a business decision. The goal is to resolve the dispute as quickly, at the least cost, and with as little damage to your reputation and operations as possible, says Caruso.
Williams agrees, noting that complaints are often from disgruntled residents who are unhappy with how they were treated. It may be better to settle when it wouldn’t cost you very much to resolve the dispute quickly rather than allowing it to go on indefinitely. Since attorney’s fees may be the biggest cost driver, the longer it goes on, the more it may cost you in the long run.
Rule #8: Avoid Retaliation Claims
Take special care to avoid even the appearance of retaliation against anyone who files—or threatens to file—a fair housing complaint against your community. Under the FHA, it’s a separate offense to threaten, coerce, intimidate, or interfere with anyone exercising a fair housing right or assist others who exercise that right.
Example: In January 2019, the Justice Department announced that a federal appeals court upheld a $43,500 jury verdict against a Massachusetts community. The complaint alleged that the owner of a four-unit rental property violated federal fair housing law when he refused to rent a unit to a family because they had children under 6 years old and the units had no lead certificate. The jury found that the owner made an apartment unavailable to the family based in substantial part on their familial status. The jury also found that the owner retaliated against them by filing a lawsuit against them after they filed their HUD complaint.
Rule #9: Focus on Training
It’s important to conduct fair housing training at regular intervals, preferably at least once or twice a year, says Caruso. It requires an investment in training so that the entire staff—from leasing consultants to maintenance workers and housekeepers—understand that they’re expected to comply with fair housing requirements when interacting with prospects, applicants, residents, or their guests, regardless of race, color, or any other protected characteristics.
It’s critical for employees working in the leasing office to have a thorough understanding of fair housing law, but it’s no less important for the people in your service department and others working at your community. With more people using online services to pay their rent and perform other functions, service techs may spend more time than anyone else interacting with residents in units and on the grounds as they go about their work.
Williams stresses the importance of professionalism, as treating everyone with respect may help ward off even the appearance of discriminatory motives. To that end, your community should reflect a professional atmosphere that’s welcoming to all visitors—whether they’re prospects, applicants, or residents.
Coach’s Tip: Fair housing experts warn against allowing temps or new hires to interact with the public until they receive at least some fair housing instruction. That includes all new hires, not just those in your leasing office, who should get fair housing training on the first day on the job.
Rule #10: Stay on Top of Paperwork
Good recordkeeping is essential to defend yourself—and your community—from accusations of a fair housing violation. The law allows people to file a fair housing complaint months—or years—since the alleged discrimination occurred. Without the paperwork, how can you be expected to remember just what happened? Even if you do, it’s not as good as documentation created at the time of the events in question. Memories fade, stories change, so it gives the other side a leg up if you can’t produce the records to back up your side of the story.
Coach’s Tip: Williams says that you should have a good system in place for keeping track of photos that may be relevant to a fair housing claim. Knowing that a photo exists, and where you can find it, is important because it may be a key piece of evidence to defend your community from a fair housing complaint months or years after it was taken.
F. Willis Caruso, Esq.: Professor Emeritus, The John Marshall Law School Fair Housing Legal Support Center and Clinic, Chicago, IL; (312) 543-3122; 6Caruso@jmls.edu.
J. Mike Williams, Esq.: Managing Attorney, Fowler, Hein, Cheatwood & Williams P.A., Atlanta, GA, (404) 633-5114; email@example.com.
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|May 2019 Coach's Quiz|