Will You Pass? When Fair Housing Testers Come

Fair Housing Testers (Testers) may show up or call your community at any time.  Testers are highly trained to carry out their fair housing missions.  A Tester’s mission is to discover fair housing discrimination, as well as to assist fair housing advocacy groups (FHAGs), and the Department of Justice (DOJ) in enforcing fair housing laws.  Testers utilize a variety of methods to discover fair housing discrimination.  FHAGs and the DOJ use the evidence discovered by Testers to bring fair housing enforcement actions, by filing fair housing administrative complaints with HUD, or state civil rights agencies, such as the Colorado Civil Rights Division. They may also file lawsuits in state or federal court.  Testers are active right now in the Denver metro area, and have initiated multiple enforcement actions against multi-family communities.  Similar to any fair housing issue proper policies and training insures fair housing compliance and makes testing a non-issue.

Reported cases of testing date back to the late 1970s. Testing accelerated after the passage of the 1988 Fair Housing Amendments that made disability a protected class. The DOJ’s Civil Rights Division established a testing unit in 1991, and began testing in 1992. Testing is a methodology to discover and gather evidence of housing discrimination.  Testing is used to determine whether prospective applicants are treated differently based on their protected class status.  For example, a testing might be designed to demonstrate that disabled applicants are being treated differently than non-disabled applicants.  Testing is developed to measure and document differences in treatment.  Testing specifically measures differences in the quality, content, and quantity of information and services provided to applicants, and isolates whether different treatment is based on an individual’s protected class status.

Testing is conducted by using Testers.  Testers are individuals who have no intent to rent, but pose as prospective residents for the purpose of gathering information that is used to evaluate whether you are committing fair housing discrimination.  Testers can operate individually, or in pairs.  Paired testing uses two individuals.  The two individuals are similar in almost every respect, except one of the Testers is a member of the protected class being tested.  For example, if disability discrimination is being tested, the two individuals will have identical rental history, credit, and income.  However, one Tester is disabled, and the other Tester is not disabled.  Because the two applicants are identical in every respect, different treatment of the disabled Tester and the non-disabled Tester proves that the difference in treatment can only be based on the disabled Tester’s disability.  Testing can be conducted by phone, email, or in person.

Testing may focus on any aspect of a community’s leasing practices.  Because disability grounds now constitute over fifty percent of all fair housing complaints, testing is frequently focused on disability-related issues.  A FHAG has recently been testing for the industry’s compliance with the legal requirement to make reasonable accommodation based upon disability-related need.  A Tester calls, informs the community that they use a wheelchair, and asks if they will be given a reserved space if they rent at the community.  The safest answer is “YES”, assuming you have parking to provide.  Remember, under the DOJ – HUD Joint Statement on Reasonable Accommodations, if a person’s disability is obvious and the disability-related need for the accommodation is obvious, you may not require further documentation.  A wheelchair applicant’s disability and need for a parking space is obvious.  If the answer is not yes, at a minimum the applicant needs to be told that you are a dedicated fair housing provider, consider all requests for reasonable accommodations, that the applicant’s request will be promptly evaluated, and that you are committed to maintaining a dialog with the applicant until the request is resolved.  The golden rule of handling reasonable accommodation requests is to never deny a request until you have all the necessary information to make an informed decision.

A national FHAG conducted national testing of over 100 owners and property management companies in 2013.  A portion of the testing was conducted in the Denver Metro area.  The national testing was designed to prove that deaf applicants were treated differently from hearing applicants.  The national test concluded that deaf applicants were treated differently twenty-five percent of the time.  One of the key findings of the testing was that property managers almost always followed up with hearing applicants by email or voicemail, while deaf or hard-of-hearing applicants rarely received follow-up.  Additionally, the testing concluded that communities failed to notify deaf or hard of hearing applicants of current leasing specials, while this information was freely provided to hearing individuals.  Given the high level of coordination between FHAG groups, widespread national testing will increase.

If the FHAG Testers believe they have uncovered discrimination, the FHAGs can file a housing discrimination complaint, or a lawsuit against you.  Under federal fair housing laws, the denial of any person’s, including a Tester’s, right to truthful housing information is actionable because Congress conferred on all “persons” a legal right to truthful information about available housing.  The fact that a Tester may approach an on-site leasing agent, fully expecting to receive false information, and without any intention of renting is irrelevant.  Congress’ decision to confer a broad right of truthful information concerning housing availability was influenced by Congress’ belief that intentionally providing false information was used to maintain segregated housing.  In any administrative action or lawsuit brought by a Tester or FHAG, they can seek actual damages, punitive damages, injunctive relief, and attorneys’ fees and costs.  Remember the DOJ also makes use of Testers, and HUD will pursue enforcement based on testing results.

Resolving fair housing actions brought by FHAGs through settlement may be problematic.  While no one would contend that housing discrimination has been completely eliminated, the industry as a whole makes significant efforts to comply with fair housing laws.  FHAGs exist because they are passionate about eliminating discrimination and enforcing fair housing laws.  Settlement is always more difficult when one side is significantly more emotionally invested in a case, or a cause.  Because of their training and the detailed documentation gathered during a test, Testers may feel that the chances of their position prevailing is absolute.  Defending a case brought by a FHAG can be difficult because FHAGs have gathered extensive evidence prior to filing a fair housing complaint, and such evidence is both comprehensive and highly organized.  Accordingly, FHAG-based fair housing complaints should only be evaluated and handled by highly experienced legal counsel.

The best way to avoid fair housing related problems from Testers is to the same way to avoid all fair housing problems.  Fair housing compliance always starts with well-developed company-wide fair housing policies that are consistently enforced.  All employees should be required to read, agree to follow, and acknowledge in writing that failure to follow company fair housing policies is immediate cause for dismissal.  Testers keep detailed logs and other documentation.  You should be documenting as well, including keeping detailed traffic records.  Without traffic records, you have no ability to rebut allegations made by Testers regarding calls or in-person traffic that happened months ago.  Proper training of all personnel is critical.  Proper training means no weak links.  If Testers get a hit at one of your communities, they will promptly target your entire portfolio.  All new personnel should be trained immediately. When proper policies are enforced and your team members are properly trained, you do not need to be concerned about Testers.

Ensuring fair housing compliance also means regular self-testing that all applicants and prospects are being treated equally and fairly.  Self-testing should also focus on your team’s ability to handle reasonable accommodation requests made by disabled prospects.  The industry is shopping the competition regularly.  Fair Housing self-testing should become the best practice, and the industry standard.  Industry leaders should also consider having trade associations that they are involved in assist in fair housing testing.  Trade associations are in a unique position to organize resources, develop standards, and implement regular fair housing testing.

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