HUD Told Its Testers, “No More Foolishness”
In April 2006, HUD issued new regulations to its Fair Housing testers. They did that “to insure (sic) that FHEO investigators nationwide will adopt a uniform approach to investigations where testing has been conducted with respect to the housing practices of a respondent [accused landlord].” Wow, does that mean that before 2006 Fair Housing testers could mostly do whatever came into their heads to try to trap landlords? Actually, it does. Has that changed? We’ll see.
One thing that changed is that landlords accused of Fair Housing discrimination can’t find out who the testers were who decided the landlords were guilty of dis- crimination “prior to litigation.” HUD considers them “anonymous witnesses.” So if a landlord wants to have his lawyers talk to possible witnesses before HUD formally charges that landlord with illegal discrimination, tough luck. Re- ports the Fair Housing Institute, “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.” Mind you, HUD will interview the testers, but the accused will not be able to, at least not until the matter is ready to go before a judge.
One thing HUD truly objected to was selective reporting of testing evidence. “Testing organizations have in many cases seemed free to pick and choose the information they would provide to HUD,” reports the Fair Housing Institute. Now, the FHEO (Fair Housing Enforcement Organization) “may request” information that the testing organization did not include in the complaint. Notice the use of the word “may.” In addition, the testing organization would continue testing the same landlords until they got some kind of response that indicated those landlords were discriminating.
HUD says they are not supposed to do now. The testing organizations must produce “all other reports” that relate to the complaint even if those reports showed the landlord did not discriminate. Naturally, what HUD will do with those “other reports” is never mentioned.
I don’t know about you, but I don’t believe for a minute that the testing organizations will simply turn over any information that might exonerate a landlord who might conceivably have said or done something that bordered on possibly violating the Fair Housing Act. The testers would just keep sending people back until they got some evidence that the landlord “violated” some clause of the law. Did that stop?
One more frightening thing for landlords is that HUD need not disclose the methodology it uses for testing. It is considered a “trade secret” and thus is exempt from the Freedom of Information Act requirements. Here all this time I thought that trade secrets applied to profit-making organizations, businesses. Who would have thought that HUD was making a profit? HUD’s own Fair Housing Initiatives Program also allows nondisclosure of methodology. In addition, law enforcement activities, read investigations, are exempt from “public disclosure” until the case is “determined to have cause, or otherwise dismissed.” (Fair Housing Institute)
Why is that important? The way a survey is conducted is more important than the results of the survey. Because if the methodology is flawed, the results of the survey are useless or worse than use- less. Thus, if a landlord is dragged into court by Fair Housing persecutors who have tested him over and over until they finally caught him at a bad moment, the landlord may never find out how they selected the testers, how they picked the dates and times to test, what criteria they used to decide if a landlord was discriminating, if the results differed markedly from the results obtained from other land- lords, and just about anything else that might exonerate him or her.
The Fair Housing Institute concluded its report with “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.” I believe they are giving the Fair Housing persecutors the benefit of the doubt. Do they deserve it?
Witness the following letter that appeared in the Corvallis, Oregon, Gazette- Times, April 13, 2011:
The Fair Housing Council of Oregon finds discrimination in rental housing in Corvallis, according to a front-page article April 9. Considering how the Fair Housing Council is funded, this should not be surprising. The FHCO is a non- profit, nongovernmental, private organization partially funded by fines levied after a minimal investigation of the circumstances, scanty knowledge of the area and not even having the proper address.
The testers call and attempt to elicit the answers they want. An example: “I am a single mom with three children under 5, and want to rent the apartment advertised.” Answer “The apartment is on the third floor; there is no play area and the complex is on a busy street. We have another apartment across town with a play area on a dead-end street, which might be better for you.” Tester, “Are you refusing to rent to families?” Answer: “Not at all, you are welcome to inspect the premises and make up your own mind.”
She hangs up, and several days later you get a letter from FHCO accusing you of housing discrimination and “steering” (suggesting another property) and in- forming you that after intensive investigation, your fine is well into five figures and an address given to which the check may be sent. Fair housing is a noble ideal, but if FHCO is levying fines in five figures, perhaps it’s not too much to expect a face-to-face meeting to determine the facts of the case rather than relying on the tester paid $25 per call.
After a recent round of testing in the Portland, Oregon, area, the Fair Housing Council found that 64 percent of landlords discriminated against African American and Hispanic testers. When a local newspaper asked to see the detailed reports, a city commissioner refused to release the reports because he “believes releasing the records would jeopardize its ability to do future audits by revealing its methods.” That is in spite of the fact that the Fair Housing Council’s contract with the city gives officials (and the public) access to those records.
The Fair Housing Initiatives Program has strict requirements for testers and tester training. Testers “must be objective, careful observers, accurate reporters, and truthful witnesses.” In addition, they must undergo a three-hour training class. That’s right, three hours. Wow! They could get all their training in before lunch.
Now think about this. Who would want to become a Fair Housing tester? People who need the money? They get $25 for each test, so maybe. But might there be another reason? They are supposed to be “objective, careful observers.” I wonder if the Fair Housing testing agencies give some kind of test for objectivity. Is it reasonable to suspect that the people who want to become testers are not the most objective observers? Might they have a goal to catch all those landlords whom they know are guilty as sin of illegal discrimination?
A number of years ago, I attended a Fair Housing Litigation Conference, which was training for lawyers who prosecute Fair Housing violations. One of the first things out of the first presenter’s mouth was to the effect that “we know all landlords want to discriminate. It is our job to catch them.”
Maybe all that changed after HUD updated its rules in 2006.