Mar 29, 2013

What is meant by “Affirmatively Furthering Fair Housing”?

 The 1968 Fair Housing Act directed governments and their agencies to "affirmatively further" fair housing.  The Act outlawed discrimination in the sale and rental of housing. Yet after more than four decades, residential segregation and racial discrimination in housing remains virtually unchanged in many of our cities. Minorities, mainly African-Americans and Hispanics continue to experience discrimination in housing partly because of the lack of local and federal agencies not willing to enforce the mandate of "affirmatively furthering" fair housing.  As a result discrimination continues.

ProPublica’s story on the Rembis family is an all too familiar example of housing discrimination. Claire Rembis and her husband came across a four-bedroom house advertised on Craigslist. It sounded like just what they had been looking for. It provided ample room for their children to run and play and the monthly rent was much cheaper than that of other homes they had looked at. They had a look at the house and loved it.
Three days later, Claire Rembis got a call from the landlord saying she was dropping by to see how the family lived. During the landlord’s visit, she asked Claire who is biracial, whether she was concerned about living in the area (which is predominantly white). A few days later Claire received an email saying the family could not rent the house because there were issues with their credit and they had too many small children.
By then, Claire had already contacted a non- profit Fair Housing Center. The center arranged for black and white testers to ask to rent the house. The black family and the white family had the same income, the same credit history, and the black family had the least number of kids. The black family was not even allowed to see the house and their calls were not returned. The white tester was shown the property, was immediately called back and invited to see the house.
The Rembis family case is not an isolated one. HUD studies have found that African Americans and Hispanics are discriminated against in one of every five home-buying encounters and one in every four attempts to rent an apartment. Only a scant few of these incidents ever come to the attention of authorities. The negligible number of housing discrimination cases arises largely from choices by federal agencies. Instead of actively searching for landlords and agents who discriminate, federal officials open investigations only after complaints are filed. But most victims have no idea they've been discriminated against, which means they never demand an inquiry. Experts say undercover testing is the most effective way to catch landlords and real estate agents, who conceal their intentions behind smiling faces and seemingly open, friendly attitudes.
However, the federal government almost never uses this technique.  HUD, the chief enforcement agency of the FHA, runs no testing program of its own. Instead, it outsources the work to a host of poorly funded private housing groups. In support of this practice, a HUD spokesman released a statement saying the agency avoids conducting its own tests for racial bias so it can remain "neutral" when it receives complaints.
Congressman Al Green, has introduced a bill for the fourth time, to fund a national program to test for housing discrimination in a bid to affirmatively further housing. The Veterans, Women, Families with Children, Race, and Persons with Disabilities Housing Fairness Act of 2013 is also known as the Housing Fairness Act of 2013.  It authorizes $15 million annually over five years for HUD to administer the nationwide testing program to measure patterns of adverse treatment in the housing market. Green's previous bills on the issue have all died at the committee stage, without reaching a full vote in the House. This is a testament to a lack of priority in fighting housing discrimination. "I don't believe this is something we can ignore. I plan to keep introducing the bill as long as I am in Congress until we pass it," Green said.
Thus, four decades after the passage of the Fair Housing Act, it is clear that the federal government’s approach to tackling housing discrimination is ineffective. HUD’s option to fund non-profit groups around the country to perform tests helps bring the majority of lawsuits involving housing discrimination. However, large parts of the country are not subject to any discrimination testing.
It is clear that a national fair housing testing program would be the most effective and efficient way to bring about change and end behavior that perpetuates segregation and has the capability to reach the kinds of discrimination that are not identified by victims, or where the victims may be unaware of their rights or reluctant to file complaints. Instituting a national testing program will definitely be a way to "affirmatively further" fair housing.

Mar 6, 2013


On February 8, 2013, the U.S. Department of Housing and Urban Development (“HUD”) issued a final rule, “Implementation of the Fair Housing Act’s Discriminatory Effects Standard. The rule formalizes a national standard for determining whether a housing practice violates the Fair Housing Act as the result of a discriminatory effect. The rule goes into effect on March 18, 2013.

HUD takes the position that the Rule reaffirms, formalizes, and provides a consistent interpretation of, its longstanding position that liability may arise under the FHA from a racially neutral practice that has a discriminatory effect, even if there is no evidence that the practice was motivated by discriminatory intent. HUD Secretary Shaun Donovan said “the Department, which has the responsibility and authority to interpret and enforce the Fair Housing Act, has long interpreted the Act to prohibit housing practices with an unjustified discriminatory effect, if those acts actually or predictably result in a disparate impact on a group of persons, or create, increase, reinforce or perpetuate segregated housing patterns. Indeed, this well-established legal precedent has been critically important in helping HUD remedy discriminatory practices in home rentals, sales, and financing nationwide. The rule formalizes the existing legal framework of the Fair Housing Act.”

The regulation is intended to establish uniform standards for determining when a housing practice with a discriminatory effect violates the Fair Housing Act. Eleven circuits court of appeals have agreed. However, there have been minor variations in how courts and HUD have applied the discriminatory effects theory.

The rule establishes a three-part test for proving liability for an unlawful discriminatory effect on housing-related activities, including the rental and financing of homes, on the basis of race, color, religion, sex, disability, familial status or national origin. The test does not take into consideration whether there has been any intention to discriminate, but focuses instead on whether a particular housing practice results in a discriminatory effect. A Plaintiff must prove that a challenged practice caused or predictably will cause a discriminatory effect. Once the plaintiff meets this burden of proof, the burden shifts to the defendant to prove that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests. If the defendant satisfies that burden, the plaintiff may still prevail by proving that the substantial, legitimate, nondiscriminatory interests supporting the challenged practice could be served by another practice that has a less discriminatory effect.

The rule provides clarity and consistency for individuals, businesses, and government entities subject to the Fair Housing Act. HUD anticipates that the rule will make it easier for individuals and organizations covered by the law to understand their responsibilities and comply with the law. Lending institutions and other housing providers expressed concern about formalizing the discriminatory effects liability standard as a regulation. HUD considered their comments but ultimately determined that the rule will not have a chilling effect on lending in lower-income communities, on development of affordable housing, on the use of credit scores, other evaluative tools or on other matters.

Fair housing advocates on the other hand, welcomed the news that the long-awaited rule would finally be published. In a press statement, Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights, said, “by releasing these regulations on disparate impact today, HUD is empowering municipalities across the country to enforce housing codes equally for all Americans and bolstering protections for those who face housing discrimination.” Let’s just hope that the rule will be affirmed by the highest court of the land.