Good intentions, confusion or ignorance about the requirements of the Fair Housing Act are not a defense if charges of discrimination are alleged. Anyone can accuse anyone else of an actual or perceived violation. Once a complaint is filed, HUD conducts a neutral investigation that involves interviewing all parties and witnesses and reviewing documents. The investigation may also involve interviewing other tenants or requesting additional information from the parties.
While complaints may be filed directly by consumers or tenants, it is not uncommon for complaints to be filed by testing and enforcement advocates on behalf of themselves, their organizations, existing tenants or even potential/future tenants. Courts have held that if they meet certain conditions, fair housing organizations have standing to file a fair housing complaint.
‘Testing’ may involve two separate individuals posing as prospective tenants or clients, who make separate inquiries in person or by phone, email or other means. The two testers are distinguished by their perceived membership in one or more ‘protected classes’ (see glossary). In theory, they make substantially identical inquiries about housing availability, terms or policies. If the answers they receive differ in a manner perceived as discriminatory, a complaint may be filed. Other types of testing may involve a single inquiry about support animals or other policies, reasonable accommodations or modifications, etc.
Once a complaint is filed, the parties are offered an opportunity to voluntarily participate in conciliation discussions while the investigation is proceeding. Conciliation terms can include requiring the “respondent” (person or entity the complaint was filed against) to attend fair housing training, to change policies and/or procedures, or to pay compensation to the “complainant,” (person or entity filing the complaint).
Each conciliation agreement is unique to the specific complaint and represents the terms agreed to by the parties and approved by HUD. For example, a complaint may involve property that was not constructed in compliance with the design and construction requirements of the Fair Housing Act. If it is not economically feasible for the property to be modified, conciliation terms may involve the respondent paying into a fund. One such fund can be accessed by persons with disabilities, who need to make modifications to make a property accessible; another fund may support education and outreach efforts.
If conciliation fails, the investigation continues and HUD determines whether the Fair Housing Act has likely been violated as alleged in the complaint. If HUD determines there is no reasonable cause to believe the Act has been violated, the case will be closed, although the *complainant still has the right to file a complaint in Federal Court. If HUD finds there is reasonable cause to believe the Act has been violated the case may be charged and proceed through the legal system.
*Please note. In Idaho and elsewhere, private attorneys and organizations sometimes disagree with HUD’s interpretation of the merits of a complaint; they may pursue a complaint independently of HUD, in which case the defendant/provider must defend him or herself in federal court, regardless of HUD’s position. If you receive a complaint, seek the counsel of a civil rights defense attorney to review your options and determine the best strategy to respond to the allegation. A sample of civil rights defense resources is available under the ‘Links and Resources’ section.
While there are no guaranteed methods for avoiding complaints, the best course of action for housing providers is to educate all property, site management and maintenance professionals that may come into contact with clients, tenants, prospective/virtual tenants, testers, their agents or the general public. New hires should receive training at the earliest opportunity, and regular education should also be offered to all those who establish or implement policies and procedures. Should you receive a complaint and wind up in court, it is often useful to document a history of due diligence to comply with federal laws.
The best defense involves clear and consistent policies that spell out what is required, are understood by any and all possible representatives and that demand excellent customer service for anyone and everyone they might encounter. Adopt a ‘zero-tolerance’ policy for any acts of discrimination, and deal quickly and clearly with violators. If you have questions, seek information and training from the various sources available in Idaho and beyond. Remember, denial is not a strategy.
*Special thanks to Bobbi Olson, former FHEO Attorney with Idaho’s HUD Field Office for assisting with review and editing.