According to the National Fair Housing Alliance’s 2019 Fair Housing Trends Report, Americans filed more than 31,000 housing discrimination complaints in 2018. That figure represents an 8% increase from the previous year and the highest raw number of housing complaints since 1995, when the National Fair Housing Alliance began tracking housing complaints. Certain types of housing discrimination complaints have risen even faster — for example, housing-related harassment complaints rose to nearly 900 in 2018 from 640 in 2016.
The basis for these complaints is the Fair Housing Act of 1968, a key piece of federal civil rights legislation that prohibits discrimination in the sale and rental of housing and mortgage lending on the basis of race, color, religion, national origin, familial status, sex, and disability. An array of local and state laws and regulations complement the federal Fair Housing Act’s protections. Since the law’s passage, federal and state court decisions have strengthened and expanded the act’s protections and enforcement powers.
The Office of Fair Housing and Equal Opportunity (FHEO), an agency of the federal Department of Housing and Urban Development (HUD), investigates complaints made under the Fair Housing Act, determines whether they have merit, and enforces their resolution. In practice, awareness and enforcement of fair housing violations depend heavily on nonprofit fair housing enforcement organizations’ (FHOs’) testing activities. A detailed 2014 report from HUD’s Office of Policy Development and Research describes the testing process. It underscores the vital support role FHOs play in fair housing enforcement — most notably by using a network of human testers to uncover discriminatory practices in the rental and sale of housing, mortgage lending, and safety and accessibility protocols in multifamily communities.
Buyers, renters, and borrowers who believe they’ve experienced housing discrimination can also file complaints with state and local housing authorities. Doing so could be advantageous for complainants in jurisdictions where fair housing regulations go further than the Fair Housing Act, such as the states that explicitly ban housing discrimination on the basis of sexual orientation or gender identity.
There are many things to know about the process of filing a federal housing discrimination complaint with HUD: important prefiling considerations, what to expect from the investigation if your complaint is accepted, and what recourse you can take if the investigation ends unsatisfactorily. Your experience filing a fair housing complaint with state or local authorities is unlikely to differ radically. But you should consult with those authorities or fair housing or legal aid nonprofits in your area for specific guidance on what to expect.
When Should You File a Fair Housing Complaint?
The Fair Housing Act prohibits housing discrimination on the basis of certain identities or characteristics:
- National origin
- Familial status
Though the act doesn’t explicitly name sexual orientation or gender identity, it may — subject to judicial interpretation — provide limited protection for members of the LGBTQ community from discrimination on the basis of sex (especially for transgender individuals and members of same-sex couples) and disability (for example, you can’t be denied housing due to HIV-positive status or a diagnosis of AIDS). However, it may remain permissible under the letter of the law (or lack thereof) to discriminate on the basis of sexual orientation or gender identity in states that don’t explicitly outlaw housing discrimination on this basis. For information on the law in your jurisdiction, refer to HUD’s list of states with one or both protections.
According to HUD, complaints filed with the FHEO fall into two broad categories (and may qualify for both):
- Complaints involving discrimination under the Fair Housing Act, including in privately owned and operated housing
- Complaints involving discrimination in housing and community development programs, including those funded by HUD
A complaint involving alleged housing discrimination can apply to virtually any housing-related activities, including renting or buying a home, getting a mortgage, or seeking housing assistance.
The alleged offender (the target of the complaint) can be one or more of the following: a landlord, developer, property manager, real estate agent or broker, homeowners association, mortgage lender, insurance provider, or civil or municipal individuals and authorities (including public officials) whose actions can affect housing opportunities. For complaints involving discrimination in HUD-funded housing and community development programs, the census of potential offenders is even broader and includes any recipient or subrecipient of HUD financial assistance. Complaintworthy offenses include but aren’t limited to:
- Refusal to rent, sell, or negotiate the rental or sale of housing
- Refusal to confirm that housing is available for sale or rent
- Discouraging the sale or rental of housing
- Segregating housing by protected status (for example, grouping tenants of the same ethnic or racial group on the same floor of an apartment building)
- Mentioning any prohibited preference in housing advertisements
- Using different applications, screening or qualification criteria, or qualification processes, for members of one or more protected classes but not all or none
- Harassing applicants, tenants, or occupants
- Conditioning approval of a housing or loan application on the applicant’s response to harassment
- Denying real estate agents or brokers access or membership in local agent organizations or multiple listing services
- A mortgage lender’s refusal to provide information about loan opportunities or issue mortgage loans to otherwise qualified applicants
- A mortgage lender’s refusal to provide other financial assistance to otherwise qualified applicants
- A loan servicing company’s refusal to purchase a home loan
- Retaliating against anyone who files a complaint under the Fair Housing Act, assists a complainant, or assists with the investigation of a complaint
Determining Whether You Have Cause to File a Complaint
Before going through the headache of filing a complaint, make sure you have reasonable cause to file and these take steps to increase your likelihood of success.
- Confirm Your Complaint Falls Within the Statute of Limitations. First, make sure the clock hasn’t run out on your claim. You have one year from the date of the alleged discrimination (or the most recent example thereof) to file a complaint with the FHEO.
- Determine Whether Your Complaint Constitutes a Valid Allegation of Discrimination. Ultimately, it’s the FHEO’s job to assess your claim and determine whether reasonable cause exists to characterize it as prohibited discrimination. But preparing and filing a claim is stressful for the claimant and time-consuming for the claimant and investigator. Filing a frivolous or easily dismissed claim does no one any good. Moreover, even if the harm you’ve suffered doesn’t qualify as prohibited discrimination under the Fair Housing Act, you may well have other recourse under applicable state or federal housing laws. For example, if your landlord fails to repair your apartment building’s broken furnace despite repeated complaints from tenants, you likely have grounds to file a safe housing complaint with your city’s housing authority and to lodge a complaint with HUD’s Multifamily Housing Complaint Line. You may also have informal recourse, such as withholding rent until the landlord or property manager addresses the issue.
- Contact a Local Fair Housing Initiatives Program Organization for Further Information and Assistance. Organizations funded by HUD’s Fair Housing Initiatives Program (FHIP) play a vital role in assisting suspected and actual housing discrimination victims, conducting preliminary investigations of alleged housing discrimination, and filing housing discrimination complaints. Use HUD’s FHIP search tool to find an FHIP organization in your area, then reach out to it for help assessing your complaint and determining whether to move forward.
Filing a Fair Housing Complaint With HUD — Process & What to Expect
After evaluating your situation and determining you have cause to file a housing discrimination complaint, you (with the assistance of an FHIP if you contacted one) must prepare and file your actual complaint.
From start to finish, the process involves several discrete steps. You’re free at any point during this process to hire an attorney with expertise in fair housing claims. However, that’s often unnecessary if you’re working with an FHIP — many FHIPs have full-time staff attorneys or access to external legal aid resources.
1. Gather Supporting Documentation
If the FHEO later decides to formally investigate your complaint, they won’t expect you to provide all the information needed to see the investigation through. However, be prepared to provide a detailed accounting of the circumstances precipitating the complaint, including:
- Where the event or events in question occurred
- When the event or events in question occurred
- The identities of others present when the events occurred, regardless of whether they’re included in the allegations
- The identities of others who may have knowledge of or information about the events in question, including others who may have experienced similar harms
- Any physical or electronic records or documents relevant to your complaint, such as rental or mortgage applications, loan documents, or truth-in-housing disclosures
Although the Fair Housing Act prohibits retaliation against claimants and those assisting them, you shouldn’t put yourself in physical danger or exacerbate your risk of losing housing in gathering documentation. If your complaint is accepted, it’ll be investigated by professionals trained to collect and corroborate relevant records and information.
2. File Your Complaint
You’re now ready to file your complaint through your regional FHEO office. This part of the process involves several possible steps:
- Intake Interview. Upon receiving notice of your complaint, the FHEO conducts an initial interview to determine whether a basis exists to file a housing discrimination complaint. Refer to the background information and supporting documentation you gathered previously.
- Complaint Drafting. If the FHEO concludes that a basis exists to file a complaint, FHEO staff may draft the complaint for your review and signature. The FHEO then notifies all parties to the complaint, including those accused of discrimination, of the complaint’s filing.
- Outside Referral. Depending on the nature of your complaint, the FHEO may conclude your complaint constitutes a violation of state or local housing laws and refer the matter to a state or local agency in HUD’s Fair Housing Assistance Program. In this case, you won’t work with the FHEO investigators but with staff from the applicable partner’s office. Don’t take this as a setback — it could actually be a boon to work with a smaller agency that thoroughly understands your area’s housing market.
If you believe you’re at risk of losing housing due to the alleged discrimination or retaliation for your complaint, make this clear as early as possible during the process. HUD may be in a position to intervene or provide housing assistance before its investigation concludes.
3. Participate in the FHEO’s Investigation of Your Complaint
If FHEO determines your complaint has merit and accepts the filing or refers your complaint, the next step is a thorough investigation of the allegations. If FHEO remains responsible for the investigation, it will assign one or more investigators and notify the parties named in the complaint. It will then take some or all the following investigative steps:
- Interviewing you and any other alleged victims of discrimination
- Interviewing others with knowledge of the allegations, including witnesses and the parties accused of discrimination
- Inspecting properties named in the allegations
- Gathering relevant documentation and records
As part of the investigative process, the parties named in the complaint can provide their versions of events and respond to specific allegations. At the investigation’s conclusion, all parties to the complaint — the complainant or complainants and the party or parties named in the complaint — receive written reports outlining FHEO’s findings. Though investigative procedures can vary somewhat at state or local fair housing agencies, you should expect a referred investigation to unfold largely along these lines.
4. Work With the FHEO on Voluntary Resolution to the Complaint
Throughout its investigation, FHEO acts as an intermediary between you and the targets of the complaint. In this role, it’s likely to attempt to broker a voluntary resolution to the complaint before completing the investigation and beginning the costly, time-consuming process of adjudicating it.
This process is strictly voluntary. You’re not obligated to agree to any proposed settlement, though you could feel some pressure to do so due to FHEO’s persistence coupled with the reality that success isn’t guaranteed in court.
If successful, the voluntary resolution process typically produces one of two types of agreements (and sometimes both): a voluntary compliance agreement or a conciliation agreement. Both types of agreement lay out the steps the parties accused of discrimination must take to make things right, the compensation or redress (if any) provided to the complainant, and ground rules the accused parties must follow to prevent future harm. Neither precludes ongoing HUD monitoring and enforcement. Once all parties sign the agreement or agreements, the investigation concludes.
5. If Voluntary Resolution Is Impossible, Receive the FHEO’s Determination
If no voluntary resolution is forthcoming, the investigation continues to its conclusion. FHEO investigations have one of two outcomes:
- Dismissal, formally known as a determination of no reasonable cause, if FHEO finds the allegations do not constitute prohibited discrimination
- Determination of reasonable cause and charge of discrimination — essentially, a finding that the allegations likely do constitute prohibited discrimination
If the investigation results in dismissal, HUD considers the matter concluded, though complainants can request reconsideration.
6. If Reasonable Cause Exists, the Case Moves to a Hearing or Court
If the FHEO determines that the allegations have merit, the case moves into the adjudication phase. Following receipt of notice of a determination of reasonable cause and charge of discrimination, all parties to the complaint — the complainants and those named in the complaint, formally known as respondents — have 20 days to inform HUD whether they’d prefer to have the case tried in federal court.
Any party can state this preference and force all parties into court. If none does, HUD schedules a hearing before a HUD administrative law judge (ALJ). Though overseen by the executive branch rather than federal courts, ALJ proceedings resemble adversarial court proceedings, with parties given opportunities to make arguments, cross-examine witnesses, and present evidence favorable to their claims. However, they’re more expedient and less costly. HUD assigns its own attorneys to represent you in these proceedings at no cost to you, so you don’t have to worry about retaining an attorney on your own dime (though you’re free to do so if you prefer).
Though they save time and money, ALJ hearings aren’t always advantageous for fair housing claimants (or respondents). Emotional arguments are more likely to hit home with jurors who’ve experienced discrimination themselves, and federal civil procedures provide more leeway to appeal unfavorable decisions, for example. Consult with an attorney to determine whether your case is a good one to take to court.
If any party requests trial in federal court, HUD refers the matter to the U.S. Department of Justice, which then files a civil lawsuit on your behalf in the jurisdiction where the alleged discrimination occurred. Although the DOJ serves as your advocate in the case, you may wish to retain your own attorney at your own expense, especially if you expect to be cross-examined by attorneys for the respondent or respondents. In either case, expect the trial to last for many months and perhaps years after accounting for appeals.
If the ALJ or federal court judge decides the case in your favor, their ruling could provide some or all the following types of relief:
- Reasonable attorney fees if you hired an attorney at your own expense
- Compensation for damages incurred as a result of the harm, such as out-of-pocket relocation expenses
- Equitable relief, such as providing housing or a loan that was initially denied
- Injunctive relief, such as a promise by the respondent not to discriminate in the future
- Punitive damages (financial compensation beyond that necessary to redress the harm itself)
What to Do if Your Fair Housing Complaint Is Denied
HUD doesn’t always side with housing discrimination complainants. Many FHEO investigations result in a determination of no reasonable cause and never proceed to the adjudication phase.
If your complaint’s investigation ends with such a determination, you’re not at the end of the road. You have two main options for further recourse, one involving little effort and the other involving substantially more effort and expense.
1. Written Request for Reconsideration
You can submit a written request for reconsideration to the FHEO director’s office at any time after your complaint’s dismissal. Send this request by postal mail — preferably certified, so you can confirm its receipt — to:
Director, FHEO Office of Enforcement
U.S. Department of Housing and Urban Development
451 7th St., SW, Room 5226
Washington, DC 20410-2000
Include in your request any new information that has come to light since your complaint’s investigation, such as statements by the alleged offender that could support your claim of discriminatory intent or evidence of subsequent actions by the offender that could support allegations of a pattern of discrimination.
The Fair Housing Act does not mandate reconsideration of dismissed housing discrimination claims, and HUD does not adhere to a formal, standardized reconsideration process. As such, your request is not guaranteed to receive a timely response, let alone a favorable reception.
2. File a Private Lawsuit
If your request for reconsideration is denied or ignored or you simply don’t want to wait to hear back from the FHEO, you can move forward with a private lawsuit against the alleged offender.
You must file this suit within two years of the most recent date of alleged discrimination or the conclusion of HUD’s investigation of your complaint, whichever came later, unless either of two circumstances applies:
- Your complaint is presently pending before an ALJ
- You signed a HUD conciliation agreement to resolve your complaint before the FHEO could make an official determination of cause
You’re responsible for all costs related to your filing and could be liable for the defendant’s legal fees if the judgment goes in their favor. If you can’t afford to pay a lawyer to represent you, visit the court’s self-help center for information about obtaining pro bono legal representation at no (or reduced) cost. Alternatively, you’re free to approach local legal aid or housing assistance organizations and request they represent you.
The Fair Housing Act’s mere existence is a check on landlords’ collective behavior, real estate agents, lenders, public officials, and other individuals and entities that might otherwise feel unconstrained to act on their biases.
However, for all its value, the Fair Housing Act has limitations. Its protections don’t extend to negligent or capricious actions that aren’t inherently discriminatory, such as a landlord’s failure to repair an apartment building’s broken furnace despite residents’ complaints. Nor does the Fair Housing Act protect tenants or homeowners from eviction or foreclosure for lawful reasons, such as failure to remain current on rent or mortgage payments. But tenants and homeowners do have other means of recourse, such as withholding rent, entering a lender’s loan workout program, or tapping sources of emergency financial assistance for renters.
Have you ever experienced housing discrimination? Did you file a complaint with local, state, or federal authorities?