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LCCR logo Leadership Conference on Civil Rights 2027 Massachusetts Ave., N.W., Washington, D.C., 20036 202/667-1780
[left margin] Founders Arnold Aronson A. Philip Randolph* Roy Wilkins*
Officers Honorary Chairperson Marvin Caplan Clarence M. Mitchell, Jr.
Chairperson Benjamin L. Hooks
Vice Chairperson Marian Wright Edelman Antonia Hernandez
Secretary Judith L. Lichtman
Treasurer J. C. Turner
Legislative Chairperson Jane O'Grady
Counsel Joseph L. Rauh, Jr.
Executive Committee Bayard Rustin, Chairperson* A. Philip Randolph Institute
Owen Bieber International Union of United Automobile Workers
Kenyon C. Burke National Council of Churches
Jacob Clayman National Council of Senior Citizens
Jerome Ernst National Catholic Conference for Interracial Justice
Mary Futrell National Education Association
Morton Halperin American Civil Liberties Union
Dorothy Height National Council of Negro Women
John E. Jacob National Urban League
Elaine Jones NAACP Legal Defense & Education Fund, Inc.
Leon Lynch United Steelworkers of America
Irene Natividad National Women's Political Caucus
Nancy Neuman League of Women Voters of the U.S.
Melanne Verveer People For The American Way
Alexander Schindler Union of American Hebrew Congregations
Molly Yard National Organization for Women
Patrisha Wright Disability Rights Education and Defense Fund
Kenneth Young AFL-CIO
Raul Yzaguirre National Council of La Raza
Compliance/Enforcement Committee William Taylor, Chairperson
Staff Executive Director Ralph G. Neas
Administrative Assistant Lisa M. Haywood
*Deceased [/leftmargin]
Some Questions and Answers on the Fair Housing Amendments Act of 1987
Q. Since we already have a fair housing act, why do we need new legislation?
A. Because after 19 years it is clear that the Fair Housing Act of 1968 simply isn't working. Unlawful housing discrimination is still widespread. Indeed, the law's ineffectiveness is generally recognized. Secretaries of Housing and Urban Development, both Republican and Democrat, Congressional members of both parties, and both President Carter and President Reagan, have all called for strengthening enforcement of the Act. The issue before this Congress is how best to improve the law.
Evidence of unlawful housing discrimination is abundant. The Department of Housing and Urban Development (HUD) has estimated that two million instances of housing discrimination occur each year. The most recent HUD-commissioned survey, one covering 3,000 brokers and rental agents in 40 metropolitan areas, found that black families looking for a home to buy stand a 48 percent chance of encountering discrimination; blacks looking for a place to rent have a 72 percent chance of encountering discrimination. A similar study in Dallas concluded that a dark-skinned Mexican-American has a 96 percent chance of experience discriminationin a typical search for housing. Complaints of housing discrimination against women and Asian Americans are numerous and increasing.
Disabled people, of whom there are approximately 36 million, continue to be excluded from large segments of the housing market.
Families with children also are denied housing simply because they have children. A 1980 HUD national survey found that 26 percent of the nation's rental housing units ban families with children. A 1979 survey of five major California cities found that 53 percent to 71 percent of their rental market was closed to families with children.
"Equality In a Free, Plural, Democratic Society"
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Q. What forms does this discrimination take?
A. Housing discrimination today often takes subtle but effective forms. Minorities and the other groups mentioned face higher sales or rental prices, larger down payments, longer waiting periods, less courteous or helpful attention, etc. Other techniques include:
False information - telling a prospective renter or buyer that a unit is already rented or sold when, in fact, it is not; claiming the agent is not authorized to sell or rent when, in fact, he or she is; telling homeseekers that they lack sufficient income to purchase or rent or that their credit history is inadequate or that their references "didn't check out."
Discriminatory terms - requiring a higher security deposit, down payment, cleaning deposit, hazard insurance premium, interest rate; or requiring a shorter mortgage term, thereby making the monthly payments so high as to be unaffordable.
Steering - showing blacks homes only in black or mixed neighborhoods and showing whites homes only in white neighborhoods.
Redlining - refusing to finance or insure a property or requiring higher financing terms or insurance rates because of the racial composition of the neighborhood.
Discriminatory appraisals - undervaluing property for loan purposes when the property is located in integrated or minority neighborhoods.
Q. Why hasn't the present law worked?
A. Mainly because the current law fails to provide adequate enforcement.
Under the law, HUD has a procedure that enables a victim of housing discrimination to report a violation. But the Department can do little to stop that violation. No official has authority to issue "cease and desist" orders to those found guilty of discriminating. HUD can only investigate and try to bring the two parties together to conciliate their differences. But without any power to back up its conciliation efforts, HUD has been unable to get landlords and sellers of housing to take the process seriously. Few agree to sit down with a professed victim and try to resolve a dispute. Victims also realize that the present conciliation process is ineffective and bring complaints to HUD infrequently. Fewer than 5,000 complaints are filed each year with HUD, a very small number when compared to the total estimated number of fair housing violations. Of these relatively few complaints, only a comparative handful are successfully conciliated by the department.
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Two former Secretaries of HUD, one Democrat, one Republican, have testified to the ineffectiveness of the remedy available to their Department.
Patricia Harris, Secretary in the Carter Administration, told Congress; "The lack of adequate enforcement power has been the most serious obstacle to the development of an effective fair housing program within HUD. Our present authority is limited to a purely voluntary process of 'conference, conciliation and persuasion.' I will not dwell upon the ironies associated with a law that mandates HUD to investigate and establish the existence of violations of a law and then limits the Secretary to asking the discovered lawbreaker whether he wants to discuss the matter...."
Carla Hills, a former HUD Secretary in a Republican administration, declared that violators of the law "know all too well that HUD has no meaningful enforcement power. Many have virtually ignored our conciliation efforts because they have no inducement to cooperate. In effect, the present law, in relying on conciliation, is an invitation to intransigence." In addition, Samuel Pierce, the current HUD secretary, firmly supports legislation strengthening fair housing enforcement.
Q. Do victims of discrimination have other remedies?
A. Yes. They can go to court and bring a private law suit. But this requires time and money. They must hire an attorney and take time off from work to appear for depositions and in court. In addition, the court process is a long one. The courts are already overcrowded. In most metropolitan district courts it takes two and a half years to get a trial date. A victim of housing discrimination wants a house now, not two and a half years later.
Q. Can't the Justice Department sue to enforce the Fair Housing Act?
A. Yes, but only where the Attorney General believes there is a "pattern or practice" of discrimination in housing. Fewer than 20 Justice Department attorneys are assigned to bring fair housing cases. They cannot go to court on behalf of individual victims.
How the New Law Would Work
Q. How would the Fair Housing amendments deal with the shortcomings in the present law?
A. The Fair Housing Amendments Act of 1987 would amend the 1968 law to put teeth into the enforcement process. A key change provides for hearings of individual housing discrimination complaints by Administrative Law Judges who would make findings
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of fact and issue final orders.
The ALJ system is hardly an innovation. It was created by Congress years ago to relieve the courts of some of their increasingly heavy case load. The ALJs are specialists in their areas of law. The hearing process is simpler than a federal court's. There are no time-consuming jury selections, extraneous motions, recesses, etc. A speedy hearing and decision is virtually assured. One does not need an attorney to represent oneself adequately before an ALJ. HUD would investigate and file the complaint on behalf of the victim.
The ALJ system is used by at least 28 federal departments and agencies. The Fair Housing Amendments provide for independent Administrative Law Judges to hear and decide most fair housing cases, but only after a HUD investigation and finding of reasonable cause.
Cases involving zoning or other state or municipal land use requirements must be referred to the Justice Department for court action.
Q. What if either party doesn't like the ALJ decision?
A. Either party can appeal the proposed final order on an ALJ to the Federal Court of Appeals. A full court review of the case is assured to determine if there is sufficient evidence in the record to justify the ALJ's decision.
Q. Do victims still retain their right to go to court if they choose?
A. Yes. The provision in the current law which enables victims to file a private lawsuit is continued by the Fair Housing Amendments.
Q. Are any other means provided to resolve a housing discrimination dispute?
A. The Fair Housing Amendments provide for conciliation by the parties, which may specify binding arbitration.
Q. What is HUD's role in the process?
A. HUD will continue to receive complaints from persons who believe they have been discriminated against. HUD may also investigate housing practices on its own to determine whether a complaint should be brought. The Department is required by the bill to inform the party charged of the charges and investigate each complaint. HUD also must try to conciliate the case. This entire process of investigation and attempted conciliation must be completed within 100 days. If, after its investigation, HUD has reasonable cause to believe the complaint is true, and conciliation has not been agreed to, HUD will file a charge with
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the Administrative Law Judge and appear at the ALJ hearing on behalf of the victim, essentially acting as the victim's attorney.
If it determines that prompt judicial action is needed, HUD may go to court and seek a restraining order to hold the housing unit temporarily off the market.
In addition, the bill requires HUD to: issue rules and regulations to implement the Fair Housing Amendments Act within six months of its enactment; report annually to Congress on progress made in eliminating housing discrimination; and provide advice and assistance to persons of low and moderate income seeking equal access to housing.
Q. What is the role of State and local human relations commissions?
A. If a state or local fair housing law affords rights and remedies substantially equivalent to those provided by the Fair Housing Amendments, the complaint is automatically referred to the state or local fair housing agency. Currently, 34 state agencies and some 70 local commissions have mandates recognized by HUD as "substantially equivalent" to the existing fair housing law.
Q. What remedies does the law provide?
A. The ALJ can issue a cease and desist order.
If the aggrieved person prevails, he or she gets the apartment or house. In addition, he or she can be reimbursed for expenses such as those incurred in temporarily renting a motel room or apartment, time lost from work to attend the hearing, and fees for expert witnesses; the victim can also be recompensed for the humiliation, pain and suffering caused by the discriminatory act; and in appropriate cases, civil penalties payable into the Federal Treasury may be assessed.
The ALJ's findings of fact, conclusions of law, the order in the case and recommendations for appropriate disciplinary measures will be forwarded to the violator's home licensing board in appropriate cases. The board could suspend the broker's license and, for repeated violations, revoke it.
Q. Besides the landlord or seller, who else is subject to the law?
A. Fair Housing Amendments apply to all actors in the real estate chain. Mortgage lenders, property insurers, mortgage insurers, real estate appraisers, and mortgage purchasers are explicitly listed as subject to the Fair Housing Act. This makes clear what the courts have been saying over the years with respect to those groups and their practices.