Are You Being Tested?

In a recent survey of advertised rental housing in the City of Alameda CA, Sentinel Fair Housing, an Oakland based private fair housing agency, found racial discrimination 44% of the tests when African American applicants sought housing in the City.

Sentinel found evidence of general and specific differential treatment against blacks, such as no follow-up calls, discouraging comments, fewer available units mentioned or shown, less promotional material offered, different terms and conditions quoted, prejudicial assumptions about an African American’s income (assumed to have Section 8), and monetary burdens placed on prospective Black tenants: higher security deposits quoted, no move-in specials mentioned.

The rental audit included tests at 25 Alameda rental properties advertising available units in a variety of locations and price ranges throughout the City.

The Fair Housing Act

Everyone is the United States of America has the right to rent or buy a home in any neighborhood that they can afford. Any effort to block the right to fair housing is called housing discrimination and is illegal.

The law covers a range of housing transactions, including the rental, sale and financing of homes. Some of the prohibited practices under the Fair Housing Act include:

• Misrepresentation—telling lies about the availability of housing or rental, sales, mortgage or insurance terms.
• Purposeful delays and stalling candidates until a desired applicant shows up.
• Unfair differences in rents, deposits or other terms. This includes quoting higher costs for families, people of color or the mentally ill than for whites in order to discourage them from applying.
• Biased sales information and presentations by sellers and real estate professionals.
• Discriminatory advertising that discourages protected classes from applying for housing.
• Different terms and conditions imposed on in-place tenants because of their protected status: for example, overly restrictive rules for children or unreasonable occupancy standards.

Testing as a Tool to Increase Fair Housing Opportunity

Testing in the housing market probably began when African Americans felt that they were being denied housing due to their race or color and asked a Caucasian friend to inquire about the housing and report the outcome. Even today individuals who come forward with complaints of housing discrimination will sometimes have used this time-honored technique. Today, of course, testing is a recognized investigative technique used by fair housing agencies and housing providers all over the country to gather information about housing practices in the marketplace.

The transition from "amateur" testing to the formalized investigative technique began as early as the 1970's in some parts of the country. In the 1982 Havens Realty Corp. v. Coleman case, the Supreme Court described testers as "individuals who, without an intent to rent or purchase a home or apartment, pose as renters or purchasers for the purpose of collecting evidence of unlawful practices.". While housing providers sometimes express concerns about the appropriateness or fairness of testing, in 1983 the Seventh Circuit accurately summarized the benefits of this practice for all those who are involved in the housing transaction:

”The evidence provided by testers is frequently valuable, if not indispensable … We have long recognized that this requirement of deception was a relatively small price to pay to defeat racial discrimination. The evidence provided by testers both benefits unbiased landlords by quickly dispelling false claims of discrimination and is a major resource in society's continuing struggle to eliminate the subtle but deadly poison of racial discrimination.” (Richardson v. Howard, 712 F. 2d 319, 321 -7th Cir. 1083)

Over time, testing techniques have been developed to investigate a wide variety of potential discriminatory practices against many protected classes in every aspect of housing from the rental and sales markets to lending and insurance. Fair Housing agencies such as Sentinel constantly recruit and train volunteer testers from all of the protected classes covered by the fair housing laws in order to ensure that a diverse pool is available to conduct these investigations. All testers complete a HUD approved training program that includes practice testing and thorough evaluation of their performance prior to their being assigned to carry out testing assignments. When a test is assigned, the tester is simply directed to go to the property in question, seek information about the housing and write up a detailed factual report about this experience. Each tester is assigned characteristics concerning salary, employment, credit and rental history. After completing each test, the tester records his or her experience for review by a fair housing specialist who determines whether disparate treatment has taken place.

Most often, a test will show that both testers were treated substantially the same-- i.e., offered the same information about availability, shown the same units, quoted the same prices, etc. Sometimes, however, clear differences will be identified such as denial of availability to one tester while another is offered units, differences in prices quoted, or steering of one tester to a different neighborhood or complex. Occasionally other types of evidence will emerge such as an agent's careful courtesy to a protected class tester followed by that same agent's confiding to the control tester, "We don't allow those people to rent here because they cause problems."

In every test, the key is the objective factual reporting of the testers who are carefully trained to simply inquire about the housing and report on their experience.

Sometimes a test is initiated in response to an individual complaint brought to one of the public or private fair housing agencies. Often testing evidence is used to help consumers understand that they were not in fact victims of housing discrimination but that there was another reason for the outcome of the original transaction. Less frequently the test confirms the complainant's suspicions and becomes part of the evidence to support an administrative complaint or a lawsuit. Noncompliant landlords and realtors have received fair housing training, which has enabled them to promote diversity and compliance with the law.

Testing is not always prompted by complaints, however. Audit testing is also used to help government agencies and communities get an accurate picture of the housing practices in a particular area or neighborhood. This information is often used in community planning documents like the required Analysis of Impediments to Fair Housing Choice or presented to city councils and citizen boards for their review.

A common issue throughout the 2004 Sentinel testing in the city of Alameda was the lack of a visible fair housing poster. HUD rules at 24 CFR 110.10 require "all persons subject to section 804 of the (Fair Housing) Act, Discrimination in the Sale or Rental of Housing and Other Prohibited Practices, shall post and maintain a fair housing poster." Testers saw Fair Housing posters in only 3 of the 25 sites: just 12% of Alameda apartment complexes tested. While it is possible that many of the complexes actually have a poster in the apartment complex or management office, the fair housing poster is most effective when it is posted in a visible location.

The outcomes of these audits demonstrate the value of continued testing to provide current and accurate data about housing transactions in the East Bay. This information can help the community, the housing industry and fair housing advocates to design their educational activities to reduce discriminatory practices and maintain an open housing market throughout the State.

Education sessions for property owners and managers in the East Bay can be arranged by calling Sentinel Fair Housing, 510-836-2687. 

Testing,  a valuable tool