Fair housing testing was first approved by the Supreme Court in 1982. The purpose of fair housing testing is to determine the likelihood that illegal housing discrimination is occurring.
How Does Testing Work?
The testing process often begins when an individual with a protected characteristic (e.g., race or national origin) files a complaint with a private fair housing advocacy organization that he or she has been treated unfairly when attempting to rent an apartment. The characteristics that are most commonly the subject of testing are race, disability, familial status, and national origin.
The Importance of the "Comparable Category" Element in Fair Housing Testing
In order to determine if discrimination played a part in an applicant’s rejection or in the treatment the individual received, the advocacy group, many of which are funded by HUD, will send a "comparable" person to inquire about renting a unit at the same complex.
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 the characteristics that may have been the basis for the discrimination (e.g., race). To accomplish this, fair housing testers may have to lie about these characteristics on the rental application and during in-person meetings with agents. Almost 40 years ago the U.S. Supreme Court justified lying in this context as a powerful means of uncovering housing discrimination. This is a classic example of a court sanctioned "end justifying the means."
By using standardized forms that report what transpired during a test, such as the nature of the assistance given, the number, type and location of units shown, the terms and conditions offered, etc., federal and state investigative and enforcement agencies, such as HUD and the Department of Justice (DOJ), can make a determination as to whether or not discrimination occurred.
The "No-Comparable" Category
By isolating a particular characteristic as the only "non-comparable" category, a test may provide persuasive evidence that the reason a tester was offered a unit that the person with the protected characteristic was denied, or given better treatment during the application process, was due to the particular characteristic of the complainant.
Testing for disability discrimination has become especially common and often is not complaint-driven. Instead, private fair housing organizations may send testers to apartment communities to assess their compliance with federal and state design and construction requirements before anyone has actually filed a complaint about the design features of a particular complex.
How Fair Housing Testing Evidence is Used
For complainants (the testing organization) an important question has always been how much information HUD will require before proceeding with the investigation of a complaint. For respondents (the accused) an important question is how and when they can get copies of the testing reports and any other information related to the tests and the testers themselves.
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 - HUD will keep the identity of individual fair housing testers secret unless and until a case proceeds to litigation. As a result, any information that could assist in identifying a tester will not be given to respondents prior to litigation. Testers will be interviewed by HUD investigators, but the testers will be considered anonymous witnesses."
HUD Requirements
When a testing organization files a complaint, HUD will request - at a minimum - the following information: (1) date(s) of test; (2) time(s) of test; (3) name of site tested; (4) address of site tested; (5) name of agent(s) contacted; (6) tester(s) characteristics (e.g., protected class); (7) a description of what transpired during the test; and (8) information regarding whether the Respondent is covered by the Act.
Once a case clears the initial stage the complainant will be asked to provide HUD with: (1) tester profiles; (2) test reports; (3) test coordinator logs; (4) debriefing forms; (5) test narratives; (6) any materials a tester received from the tested housing providers; (7) testing methodology; and (8) other documents related to the tests. All of this material, with the exception of the organization’s "testing methodology," will be kept in the evidentiary section of the investigative file and will be available to respondents once the case is closed. Information about the testing methodology itself, such as site and respondent selection criteria, choice of 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 favorable (from the respondent’s standpoint) change in recent years is that testing organizations are no longer able to "hide" tests that turn out to be favorable to a respondent. 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.
What Can Respondents Get and When Can They Get It?
Upon completion of the investigation, HUD must give a copy of its Final Investigative Report and any other factual information on the file to a complainant and respondent who request it. So, if you are required to answer to a complaint, when the investigation ends, always request a copy of the Final Investigative Report from HUD. 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 a "trade secret" or confidential commerce or financial information. This is due to the requirements of 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. The FOIA exempts from public disclosure information pertaining to "law enforcement activities," such as open administrative investigations.
Ultimately, testing by "pretend" apartment-seekers in order to produce evidence of discrimination will continue to be an important tool for government agencies seeking to root out discrimination in all its forms.
Owners of multifamily properties may avoid testing problems by remembering the basic rules relating to ensuring fair housing compliance at your property: (1) Advertise the property and not the type of people you want to live there; (2) do not discuss your residents with anyone - including other residents; and (3) make every housing decision relating to an individual based on four criteria:
If the answer to each of these four questions is "yes," the housing services should be provided - no other factors should come into play.
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