7ec0dbeee45813422897e04ad8424a5e_500x735Today’s press release concerning HUD’s Fair Housing Initiative Program (“FHIP”) says all you need to know about HUD’s approach to eliminating housing discrimination. Out of more than $37 million dollars made available to improve fair housing in this program, HUD is spending about 20% on programs intended to educate the public and business about their rights and obligations, while 80% goes to funding private organizations that are in the business of either suing folks or filing HUD complaints. HUD is clearly much less interested in helping people obey the law than in punishing people who fail to obey it. The press release ends, of course, with information on how to file a complaint with HUD. There’s no mention of where to go for education on following the law.

This enforcement oriented approach can be seen in HUD’s treatment of  testers; that is, individuals working for private groups who test housing providers to find discrimination. As set out in an April 10, 2003 memorandum to HUD’s field office staff everyone involved in an investigation triggered by a tester’s complaint has to be scrupulous about protecting that person. Intake analysts have a “duty to safeguard the confidentiality of a tester’s identity.” During the investigation, the tester must be interviewed, but the tester’s identity continues to be protected, with names and other identifying information redacted from both internal documents and the Final Investigative Report and Determination. Moreover, information that is retained about tester identity will, if HUD can possibly do it, be omitted from any response to an FOIA request.  The rationale for all this protection? If a tester’s identity is known it might interfere with the tester’s ability to make more tests. The housing provider won’t be allowed to know who is testifying about discrimination until HUD refers the case to the Department of Justice and a lawsuit or administrative enforcement action is filed. Protecting the tester is more important than giving the housing provider a real chance to defend the charge of discrimination.

This preference for complaining parties over responding parties shows up in other ways as well. Testing methodologies are regarded by HUD as trade secrets, meaning that until there is actual litigation a housing provider will not be allowed to know the method used or have any opportunity to show it is unreliable. Neither the Fair Housing Act nor HUD regulations provide any mechanism for punishing individuals who file false or improper complaints. Except in the most egregious cases only housing providers can be subject to administrative penalties, damages and attorneys fees.

At one time this made sense. When fair housing was primarily a matter of discrimination based on race, nationality or religion there was little doubt about who the bad guys were. You cannot accidentally discriminate based on race or religion – discrimination is synonymous with moral fault. More recently outlawed forms of discrimination are different. Discrimination with respect to FHA accessibilty requirements is “no fault” discrimination that does not require any intent. When it comes to rules about physical access, reasonable accommodations and reasonable modifications ignorance is treated as guilt, an one wrong word can count as discrimination.* There is also no de minimus standard for property owners who try to do everything right.  If one employee makes one mistake in one phone call HUD can find that discrimination occurred even if the housing provider did it right a thousand times before. Finally, the “disparate impact” analysis that HUD applies to all housing provider policies can leave a business liable for consequences it never intended. Most apartments that screen for criminal history do so to eliminate criminals, not minorities, but HUD views such programs as likely to violate the Fair Housing Act if not very carefully crafted. Housing providers are now responsible for knowing the statistical likelihood that a facially neutral policy will have a disparate impact on any protected class of individuals. If they make a mistake, it is discrimination.

Of course HUD does sponsor programs to educate property owners and managers, including free Fair Housing Act training. It also issues various guidances, although it does so via press release. Nonetheless, the emphasis on punishment instead of education is very clear. HUD’s 2012-2013 Annual Report on Fair Housing devotes 27 pages to the discussion of enforcement and only 2 pages to the discussion of education. HUD has rolled out a smart device app that makes it easy to file complaints. There is no similar app to make it easy to understand the law for housing providers. Information on complaints is available in seven languages. Information on compliance is available only in English, as if no apartment manager or owner was more comfortable in a second language.  It is natural that consumers need more guidance than businesses, but the disparity in spending and other resources is enormous.

Punishment is the least effective and most expensive way to create compliance with the law, but punishment is the real focus of HUD’s fair housing activities. If HUD really wants to eliminate housing discrimination, then it needs to start not with buyers and tenants but with landlords and owners, and its approach should be primarily be through education rather than enforcement. In the meantime, property owners and managers must understand that they have to be proactive in keeping up with the law and they will get only limited help from HUD. That’s what this blog is for.

* well over half of the complaints filed with HUD based on disability involve reasonable accommodation requests, the kind of request in which the rules are the hardest to understand and follow. Only about 3% involve problems with construction, where the rules are clear. The rising number of disability related complaints with their origins in the hardest part of the law to understand should be a clear indication to HUD that something needs to be done to educate apartment owners and managers, or to re-write the rules.