Fair Housing - An Overview

By: Pat Finn, Licensed North Carolina Attorney with Brownlee Whitlow & Praet, PLLC

This blog entry is meant to provide an overview of what people mean when they refer to “fair housing complaints” or “discrimination complaints” in the context of the residential rental housing world. We will have follow-up blog entries to address specific aspects of Fair Housing and how those issues may present themselves.

The federal Fair Housing Act was signed into law by President Lyndon Johnson on April 11, 1968 as part of the Civil Rights Act of 1968. This Act expanded the protections outlined in the Civil Rights Act of 1964, prohibiting discrimination on the basis of race, color, religion, national origin, sex, handicap, and family status . Title VIII of the Civil Rights Act of 1968 is referred to as the Fair Housing Act. This Act protects people from discrimination when they are renting or buying a home, getting a mortgage, seeking housing assistance, or engaging in other housing-related activities (such as in a landlord/tenant relationship).

The U.S. Department of Housing and Urban Development (commonly referred to as “HUD”) oversees discrimination complaints across the nation. Most states (as well as a number of local jurisdictions) have enacted their own version of the Fair Housing Act in order to mirror the federal protections along with any additional provisions that the particular jurisdiction might be concerned with. North Carolina, South Carolina, and Georgia each have their own state versions of the Fair Housing Act.

42 U.S.C. § 3610(f) provides federal guidance on when the Secretary of HUD may certify state and local agencies to engage in the investigation and prosecution of claims of discrimination. The federal guidelines require that the state and/or local laws must be substantially similar to the rights protected under the federal Fair Housing Act, as well as proscribing the timelines that those agencies certified by the Secretary must act on a complaint. Often the state or local agency will have an interim/cooperative agreement on file with HUD, wherein HUD may step in and reactivate a case. “Reactivation” in this context means that the HUD investigative team will pull the complaint from the state or local agency, causing that agency to close their investigation, wherein HUD will complete the investigation and proceed accordingly.

The specific investigative agency that receives the complaint will be important as that will impact which laws are at issue, what the process for the complaint investigation will entail, and which courts the agency will use to enforce their authority. The laws themselves are likely similar, but the origin of the authority will impact the potential costs and complexity of any defense to the complaint.

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[1] https://www.hud.gov/program_offices/fair_housing_equal_opp/aboutfheo/history

In an investigation, the common aspects of the process through all levels and jurisdictions include the following: the timelines involved, conciliation, interrogatories, document requests and interviews.100 days is the standard duration for most agencies to fully complete the process from complaint submission to the final decision. During the investigation, the investigative agency will encourage the parties to engage in conciliation efforts. Conciliation is similar to mediation, where the parties will discuss the issues of the complaint and what actions might be taken in an effort to resolve the case. Discussions in conciliation are typically prohibited from being used against either party should conciliation fail, in order to allow a more open dialogue for this step in the process. Conciliation agreements often include financial compensation to the complainant, as well as specific actions by the entity accused of discrimination (typically referred to as “respondent”) addressing the issues for the particular complainant in addition to actions meant to benefit society more generally. Interrogatories are the mechanism whereby the agency may demand information in the form of narrative responses and document requests from the respondent that will allow the agency to review the policies and procedures in general for the respondent, to determine if they are discriminatory in themselves, as well as how the actions in the complaint would show that respondent acted in a discriminatory manner. Telephonic and/or in-person interviews are another mechanism that the agency may use in order to further look into the allegations in the complaint. At the conclusion of an investigation, if conciliation is unsuccessful, then the agency will make a determination and finding as to whether discrimination occurred or not. If a finding is made as to discrimination, that will typically lead to a lawsuit being filed by the complainant.

A thorough review of the allegations in the complaint will help to determine what statutory authority the agency is investigating under and where their authority comes from. A local agency investigating a complaint of a local discrimination statute would seek court orders for any failure to comply with the investigative process from their local or county courts. At the other end of the spectrum – if HUD is the agency conducting the investigation, they would likely seek court orders from the Federal District Court. Each level of the court system has their own complex rules and policies regarding who may participate (attorneys vs individuals) and what the process is to contest any court action. The more complex the court system, the more costly the defense to a complaint.

Discrimination allegations and Fair Housing complaints can be complicated and nuanced, and there is the potential for major liability. The agencies involved typically have strict deadlines on the steps in an investigation, and failure to adhere to those requirements can trigger additional liability. For those reasons, it is best to immediately consult with your legal team should you receive a notice of a complaint being filed against you.

*The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information in this article is for general informational purposes only. Information in this article may not constitute the most up-to-date legal or other information. Viewers of this material should contact their attorney to obtain advice with respect to any particular legal matter. No viewer of this material should act or refrain from acting on the basis of information in this presentation without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. Use of, and access to, this article does not create an attorney-client relationship between the reader and Brownlee Whitlow & Praet, PLLC or any contributing law firms. All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed.