Fair Housing Testers – Testing For Housing Discrimination

Fair Housing Testers

In this episode, we talk about fair housing testers. What are some of the most common issues that get reported when testers call or visit properties? Be sure to check out the full episode and share it with your property management team.

What you will learn in this article:


Highlights of Episode 13 – Testing For Housing Discrimination

Fair Housing Testers – The Facts

What are Fair Housing testers? What is Fair Housing testing? Fair Housing testing as a means to uncover evidence of race discrimination in rental housing or “shopping” as it is sometimes called, was first approved by the U.S. Supreme Court in 1982. Since the passage of the Fair Housing Amendments Act in 1988, testing programs have expanded to include tests for both national origin and disability discrimination.

In most cases involving allegations of race or national origin discrimination, testing works this way: The process begins when an African-American or Hispanic person complains to a private fair housing advocacy organization that he or she had been treated unfairly when attempting to rent an apartment. Treating people differently because of their membership in a “protected group” is the most common type of discrimination. Complaints like this are usually filed after the individual is actually denied an apartment, although individuals might not wait for a formal rejection; instead, many individuals file complaints based solely on the way they were treated during the application process.

Different Callers With Same Questions

This scenario is a great one because it covers a method of testing that is extremely common which is telephone testing. Testing definitely occurs in person a lot, but telephone testing is the most common method of testing. That’s why it’s so important that people who answer your phones know what to do and what your policies are and how to respond to certain questions.

In this scenario, it’s highly unlikely that the person answering the phone treated those two callers differently because of anyone’s accent, highly unlikely. The most likely scenario is that in one call, he or she had lots of time, wasn’t distracted, could give all the information. In the other call, with the Asian caller, it’s very possible that they were distracted, they had people in their office, they were busy and they didn’t either have time or want to give all the information. However, this is exactly what testers are looking for. They are looking for, did one receive different information, more information? Information about amenities or surrounding areas is not insignificant. That’s important information, just like the price of rent.

This sort of information needs to be consistently given every single call so there is no even misunderstanding about maybe why the information was different. That is something you do not want to get wrong. Either you have a two-bedroom available or you don’t. If you had it for one caller and maybe it did get booked in between those calls, just make sure you have a record of the time when that unit came off the market so that if you do get accused of offering it to one tester and not to another, you can show why that happened.

Comparable Category

In order to determine if race or national origin discrimination played a part in the applicant’s rejection or in the treatment the individual received, the advocacy group, many of which are funded by HUD, will send a comparable white or non-Hispanic person to inquire about renting a unit at the same complex. Fair Housing testers are usually individuals from the local community who have been specifically trained to conduct fair housing tests. Many are civic-minded volunteers, although most are paid on a per-test basis. In other cases, sophisticated individuals will conduct their own test by enlisting the help of their white or non-Hispanic friends.

Being “comparable” means that the Fair Housing testers are, to the extent possible, matched with the complainant on their background, employment, rental and even educational characteristics, differing only in their racial or ethnic background. In almost all cases, this means that Fair Housing testers may have to lie on the rental application and in any face to face meetings with agents about these characteristics. While lying on an application is thought to be an unpardonable sin, remember that over twenty years ago the U.S. Supreme Court justified lying in this context as a powerful means to uncover housing discrimination.

By using standardized forms that report what transpired during the test, such as the nature of the assistance given, the number, type, and location of units shown, the terms and conditions offered, and so on, federal and state investigative and enforcement agencies, such as HUD and the Department of Justice, can make a determination whether or not discrimination occurred. Fair Housing testers may also use secret video and audio recording devices in jurisdictions that allow their use.

Non-Comparable Category

By isolating race and ethnicity as the only “non-comparable” category, a test may provide persuasive evidence that the reason the tester was offered a unit that the black or Hispanic person was denied, or given better treatment during the application process, was because of the race or ethnicity of the complainant.

Testing for disability discrimination has become especially common and often is not complaint-driven. Instead, private fair housing organizations may send Fair Housing testers to apartment communities to gauge their compliance with federal and state design and construction requirements before anyone has actually complained to them that a particular complex’s architectural features violate the law’s accessibility requirements.

How Fair Housing Testing Evidence Is Used

While housing advocates frequently rely on testing evidence before filing fair housing complaints with local, state, and federal enforcement agencies, how testing evidence is actually used by these agencies has been problematic for both complainants and respondents. For complainants, an important question has been how much information HUD will require before going forward with a complaint. For respondents, an important question has been how and when they can get copies of the testing reports and any other information related to the tests and the testers themselves. In April 2003, HUD attempted to answer these and other questions by issuing guidance to all of its offices “to ensure that FHEO (Fair Housing and Equal Opportunity) investigators nationwide will adopt a uniform approach to investigations where testing has been conducted with respect to the housing practices of a respondent.”

Because of confidentiality issues regarding the identity of Fair Housing testers – HUD recognized that if a tester’s name became public, his or her ability to participate in future tests would be jeopardized – FHEO has also been instructed to keep the identity of individual Fair Housing testers secret unless and until a case proceeds to litigation. As a result, identifying markers, like names, addresses, telephone numbers, e-mail addresses, or any other information that could reasonably lead to the disclosure of tester identities, will not be given to respondents prior to litigation. While the disclosure will not be made to anyone outside the agency, HUD has made it clear to advocacy groups that testers will be interviewed by FHEO during its investigation. Simply put, testers will now be considered “anonymous witnesses.”

HUD Requirements

What information HUD will require in the way of testing evidence has also been made clearer. Although HUD funds testing organizations – or perhaps because of that – their relationship has been frequently marked by mutual suspicion and even animosity. Thus testing organizations have in many cases seemed free to pick and choose the information they would provide to HUD. FHEO has now instructed its intake analysts that they may request the following information if the testing organization fails to include it in the complaint: “date(s) of the test, time(s) of the test, name of the site tested, address of site tested, name of agent(s) contacted, tester(s) characteristics (e.g., protected class), a description of what transpired during the test, and information regarding whether the respondent is covered by the Act.”

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HUD has also notified testing organizations that once a case clears the intake stage that they should be prepared to provide HUD with: “tester profiles; test reports; test coordinator logs; debriefing forms; test narratives; any materials a tester received from the tested housing provider; testing methodology and other documents related to the tests.” All of this material, with the exception of the organization’s “testing methodology” (discussed later), is to be placed in the evidentiary section of the investigative file and thus available to respondents once the case is closed. Information about the testing methodology itself, such as site and respondent selection criteria, choice of the type of test(s) to be conducted, tester training materials, and tester procedures, are to be placed in the deliberative section of the file, and thus not subject to disclosure, at least while the case is with HUD.

One of the most significant aspects of HUD’s guidance concerns evidence from tests that do not show discrimination. For obvious reasons, testing organizations that claim a housing provider is discriminating will not want HUD or the housing provider to learn that one or more of its tests failed to show that any discrimination occurred. The good news for housing providers is that these organizations will no longer be able to “hide” tests that turn out to be favorable to a respondent as HUD is now on record that organizations will be required to produce material pertaining to all other tests that relate to the complaint, regardless of the results of those tests.

Respondents – What Do You Get?

Now that we know what should and what should not be in HUD’s case file, the question is what can respondents get and when can they get it. As far as “closed cases” go, the Fair Housing Act and HUD’s regulations have always required that upon completion of the investigation, HUD must give a copy of its Final Investigative Report and any other factual information in the file to a complainant and respondent who request it. Whether a case is closed or not, it is highly unlikely that HUD will release any information relating to an organization’s testing methodology. Nor will HUD release any other material it deems to be a “trade secret” or confidential commercial or financial information, citing the Freedom of Information Act (“FOIA”) and HUD’s own Fair Housing Initiatives Program, both of which allow non-disclosure of such information.

Information from the files of “open” cases – meaning those that have not been conciliated, withdrawn, dismissed, or “no caused” – will not be released, except to the party who submitted it. That’s because FOIA exempts from public disclosure information pertaining to “law enforcement activities,” such as open administrative investigations. Until the case is determined to have caused, or otherwise dismissed, it is considered “open” by HUD.

Of course, if a party consents in writing to the release of one of its documents, HUD is free to do so. Even when permission is not given, investigators may still use information from a “secret” document to further its investigation. For example, HUD may (and in most cases should) attempt to resolve any conflicts in the evidence by allowing each side to address the contentions of the other side.

Although HUD has attempted to provide nationwide uniformity in the treatment of testing evidence, how individual FHEO offices, to say nothing of individual investigators or state and local enforcement agencies, will implement this guidance remains to be seen.

Like it or not, testing by “pretend” apartment-seekers in order to produce evidence of discrimination will continue to be an important tool for government agencies such as the U.S. Department of Justice’s Civil Rights Division, HUD’s Office of Fair Housing and Equal Opportunity.

Pet Restrictions

This is a major legal problem for this company now, because of what this leasing agent just said.

The main thing that she did wrong was not recognize the fact that assistance animals, service, and emotional support animals can be any type of dog and they can’t be limited to just the breeds that you allow at your complex. They can be any type of dog, and really, they can be any type of animal. You can’t have restrictions on breeds or really species of animals when it comes to assistance animals.

Restricting types of breeds or types of species is just a violation of the Fair Housing Act on paper. There is really no getting around it. If this happens with one of your employees, you really won’t have any other option besides to settle this case if someone does challenge it with HUD or in court. That’s going to cost a lot of money. This is assistance animals 101.

When you get a request from an applicant or a prospect or a resident to bring their animal as an assistance animal, you need to look at it on a case-by-case basis and not some big blanket restriction. Look at each case and each request and then evaluate it according to your company’s policies, which means you obviously are compliant with the Fair Housing Act.

Criminal Background

This is a fair housing issue that has gained attention a lot more in the last several years. Agencies are catching onto it and a lot more testing is being done in this area. In Florida, there are several complainants and law firms that have made a fortune off of this type of testing. It’s because people aren’t really aware that it’s such a big issue, maybe they haven’t been trained on it and they don’t really know the correct way to answer these types of questions when they get them on the phone or in person.

The reason this is a big issue is that HUD has determined and has made it very clear to housing providers that if they have strict criminal history policies, those can be discriminatory against certain groups of people. You should be aware that if you do receive questions about it, it might be a test, it might not. But regardless of if you suspect it’s a test or not, you should answer it correctly. That is, “Come apply, just come on and apply.”

Check everything out, do our screening the way we do for everyone, and then give you a decision based on our policies.

It’s never a good idea to make a determination about someone’s eligibility before even seeing their application or screening them. It’s never a good idea, especially to give that information out over the phone to an applicant that may or may not even be a real applicant. It’s not smart and it can definitely be viewed as a violation of the Fair Housing Act.

Prospect With Children

In this scenario, this leasing agent treated this family with children differently by steering them towards what she deemed as a more appropriate sized apartment for them where’d she necessarily wouldn’t have done it for a family without children. This goes directly to familial status discrimination, that is discrimination on the basis of someone having one or more children under the age of 18.

Occupancy issues go directly towards familial status issues and whether it’s discriminatory or not. A company’s occupancy policy is important, and while historically a lot of companies have had two-person per bedroom policies, I even heard two heartbeats per bedroom, which is very strict, these have historically been acceptable, it’s been the most common occupancy standard amongst private market properties.

However, in the last several years, HUD has determined that these types of occupancy policies, these two-person per bedroom policies, can be discriminatory against families with children. They have started encouraging housing providers of private market properties to extend or increase those types of policies. It does not affect families like this scenario that have three children.

We don’t know from the scenario whether the family has two parents or one parent, so there could be four family members involved, there could be five. But regardless, this agent should not have made the determination that maybe they weren’t eligible for a two-bedroom, maybe they would be more comfortable in a three-bedroom. Whatever her motivation was, she was treating them differently because they had kids. That is where an employee, and therefore a company can get into trouble.

Accessibility

Accessibility testing is also very common, and it’s also very easy. Accessibility testers don’t necessarily need to take a tour of your property to determine whether your property or at least the outside of your property is in compliance with Fair Housing accessibility laws. Sometimes they can just drive around your parking lot and look at your parking spaces and your entryway. Sometimes they can go in and take a tour so they can see kind of your amenities and your common areas, and they can tell whether you are in compliance or not.

Unfortunately, if a tester does this, it’s almost too late to fix it before they can notice it. It’s important for properties if you think that you may have some compliance issues to go ahead and get it checked out. Bring someone in to look around, to do an inspection, and to let you know what issues exist and what issues you can feasibly correct that wouldn’t break your bank. It’s important to do that because once an accessibility issue is identified, you’re going to have to settle that case. If it’s a legitimate noncompliance issue, you’re not only going to have to pay the complainant who files the case but then you’re going to have to pay to have the issue corrected anyway.

It’s really in your best interest to go ahead and identify what those issues are. Sometimes it’s just a parking space issue that you need to re-stripe part of your parking lot, they’re not hard fixes and they’re doable, you just need to know what they are.

Accessibility laws can be confusing because they differ from property to property depending on what your funding is, what type of property you are, how old your property is. It’s important to get someone who knows what those laws are and which ones apply to your property to figure out what you may need to do to bring your property into compliance, so you don’t get into a mess like this.

The Big Picture

While the odds may be slim, the chances you will be tested by one of these organizations is always present. Be aware. Be fair.  Make sure you and your team are well trained in Fair Housing.  Create a corporate culture of equality.  It’s part of your corporate social responsibility.