Brass Tacks: Fair Housing for All?

Understanding housing policy, finance, and regulation can be daunting, requiring us to wade through a sea of acronyms, untangle public and private interests, trace knotty financial flows, and decrypt complex bureaucracies. In our new Housing Brass Tacks series, we’re going back to basics to get a grasp on this unwieldy topic.

In the fifth Housing Brass Tacks discussion, we wondered, what does fair housing — or unfair housing — look like today? New York’s Fair Housing Justice Center is at the forefront of the fight against housing discrimination, filing suits on behalf of complainants, advocating stronger protections through policy, and, with the help of 150 professional actors, investigating allegations. Executive Director Fred Freiberg laid out the realities of fighting for a fair shake on the housing market in the 21st century.

#1 Discrimination against… whom?

Fair housing laws protect homebuyers and renters from discrimination in the rental, sale, insurance, and financing of housing. When the federal Fair Housing Act was signed in 1968, it outlawed discrimination on the basis of race, color, religion, or national origin (sex, familial status, and disability status have since been added as protected classes). Additional protections depend on where you live, and New York is pretty good in this regard — at least on paper. New York State Human Rights Law prohibits discrimination based on age, sexual orientation, marital status, and military status, while the New York City Human Rights Law also prohibits discrimination based on gender identity, domestic partnership status, citizenship status, lawful occupation, source of income, and status as a victim of domestic or sexual violence.

Freiberg advocates adding fair housing protections for individuals with arrest or conviction records. In April 2016, the US Department of Housing and Urban Development (HUD) stated that landlords who have blanket bans on renting to former offenders could be in violation of fair housing law. Criminal record is not a protected class under the Fair Housing Act (see above). However, since African Americans and Latinos are disproportionately arrested and incarcerated, HUD’s guidance relied on disparate impact theory — which focuses on whether the outcome is discriminatory, regardless of intent. The Supreme Court upheld the application of disparate impact under the Fair Housing Act in 2015. Whether any housing provider will be charged with discrimination based on offender status, particularly under the new presidential administration, remains to be seen.

Your money’s no good here   On paper, New York City has some of the strongest human rights laws in the country. Source of income laws — protecting people who pay for housing using social security, public assistance, or housing vouchers such as Housing Choice Vouchers (Section 8) — were passed in New York City in 2008. However, discrimination persists. Under Carmelyn Malalis, the New York City Commission on Human Rights has revitalized its fair housing testing program after decades seemingly in hibernation. In 2016, the Commission significantly increased its source of income discrimination testing, and it is currently investigating more than 200 cases of lawful source of income discrimination against landlords and brokers across the city. The Fair Housing Justice Center continues to file source of income lawsuits, including a recent one against owners and managers at Parkchester in the Bronx for refusing to rent to prospective tenants with Section 8 and other housing vouchers.

Elsewhere, refusing to accept housing assistance vouchers is the norm — and lawful. For voucher holders, that can make decent housing hard to find. And since the practice limits the options of where voucher holders can rent, it can have the perverse effects of maintaining or increasing residential segregation (64 percent of voucher holders nationwide are non-white) and inflating rents in neighborhoods where landlords welcome the stable source of income that vouchers can offer.

#2 We have fair housing laws. We don’t have fair housing.

Housing providers have a subtle arsenal of seemingly benign techniques to keep out certain tenants. They may selectively advertise or not advertise at all, only accept referrals from current residents, engage in linguistic profiling to screen callers, have no public office or listed phone number to avoid contact with the public, have very stringent rental requirements that are subsequently curtailed for “desirable” applicants, and lie about available apartments — often with a handshake and a smile.

There’s often no way for an ordinary consumer to know what’s occurring: “It happens so subtly that there’s no possibility that they know they’ve actually been discriminated against,” said Freiberg.

Even if they suspect discrimination, most people depend on the private market for their housing and may be apprehensive about bringing a complaint against a current or prospective housing provider. Whether an undocumented person is concerned about being arrested or a member of a religious minority fears the ability to find another apartment, there are many reasons why a person may not want to come forward with an allegation.

From slammed door to revolving door   While overt discrimination has subsided (although not disappeared) since the Fair Housing Act was passed, we have yet to dismantle the barriers that restrict housing choice and perpetuate segregation. The lasting effects of collusion between public and private entities to socially engineer patterns of segregated living throughout the 20th century are still conspicuous today. Rather than a “We want white tenants in our white community” sign, or a door slammed in someone’s face, Freiberg sees the majority of discrimination today as a “revolving door”: a warm greeting followed by ushering the person right back out the door with any number of excuses.

#3 Testing, testing

Fair housing enforcement at the federal level has historically been anemic. We’ve been left with a “largely passive, complaint-responsive system,” said Freiberg, that relies on individuals coming forward with allegations of discrimination. In the face of public negligence, in many cities private not-for-profit organizations have taken up the mantle of enforcement, usually through undercover investigations. Freiberg considers these systemic testing investigations the best way to ferret out discrimination: “I don’t think there’s a substitute for actually seeing what happens.”

These investigations often use a technique known as “paired testing,” which has two people who are comparable in every respect except the characteristic of the alleged discrimination make the same inquiry and document their experiences. Through a partnership with The Actors Fund, the Fair Housing Justice Center employs (on a part-time, as-needed basis) 150 professional actors who assume fictitious identities and pose as housing seekers.

Testers are equipped with concealed audio recorders. Audio evidence provides incontrovertible proof of discrimination. The fact that New York permits one-party consensual recording (38 states do, but 12 require the consent of all involved parties) is one of the primary reasons that FHJC has never lost a lawsuit.

Probing for bias   In a recent lawsuit filed by FHJC, a white man visited a building superintendent in Midwood, Brooklyn, to ask about one-bedroom apartments for rent. An African American man made the same inquiry shortly afterward. The white tester was shown an available apartment, while the African American tester was told that none was available. Three additional paired tests were conducted at the building over five months to establish a pattern of discrimination. African American testers were regularly told to check back at a later date or were pointed to buildings nearby that might have availability. FHJC has alleged that the building’s owners, the superintendent, and the super’s wife discriminated based on race, in violation of federal, state, and city fair housing laws.

Posters issued by government agencies inform the public of its right to fair housing. | Posters from a National Community Reinvestment Coalition collaboration and the “Live Free” campaign, both via HUD; Poster via Fair Housing NYC

#4 Accessibility rights

Federal fair housing protections were extended through the Fair Housing Amendments Act of 1988 (FHAA) to prohibit discrimination against persons with disabilities and require housing providers to make reasonable accommodations for them.

One consequential portion of this legislation was to establish design and construction guidelines for new multi-family buildings (four or more units) constructed after March 13, 1991. (Reminder: The Americans with Disabilities Act, passed in 1990, established accessibility guidelines for places of public accommodation — restaurants, hotels, hospitals, and so forth — and commercial facilities but generally does not apply to private residential housing.) There are seven basic design and construction requirements under the FHAA: an accessible building entrance and entrance route; accessible common/public areas; usable doors; an accessible dwelling entrance and route through the dwelling; accessible light switches, outlets, and other controls; reinforced walls for installation of grab bars; and usable kitchens and bathrooms.

When passing the law, Congress did not provide statutory authority for a national uniform set of accessibility standards. Instead, architects and builders choose one of ten options! That is to say, there are ten “safe harbors” (standards or codes for compliance) to select from, and the architect must follow all provisions in the chosen one. New multi-family housing in New York City must comply with the Fair Housing Act, Section 504 of the Rehabilitation Act of 1973, and the New York City Building Code — creating conditions ripe for accessibility consultants.

Out of reach   “I cannot tell you how pervasive the problem is of inaccessibility with new construction in New York,” said Freiberg. In recent years, the US Attorney has brought 15 accessibility cases against developers and architects in New York City for civil rights violations, using testing evidence from FHJC. Two cases settled so far this year require retrofits to six luxury Manhattan apartment buildings with more than 3,000 units that were designed with inaccessible features such as excessively high thresholds, insufficient space in the bathrooms and kitchens for people using wheelchairs, and bathroom configurations that prevent the installation of grab bars.

#5 What’s the effect?

The Fair Housing Justice Center regularly files lawsuits for housing discrimination cases. Defendants in these cases have included building owners, building developers, superintendents, architects, nursing home operators, banks, local governments, and many others.

FHJC has never lost a lawsuit. But what’s won in the settlement? Usually the defendant is required to pay penalties and damages to the people who have been discriminated against. In addition to monetary damages, these lawsuits also seek injunctive reliefs for the defendant, compelling them to stop or change specific practices. Those may include adopting fair housing policies, training real estate agents or landlords in fair housing practices, and keeping records for the FHJC to monitor over a specified period of time. Freiberg has worked around the country, and in New York, he said, there’s less resistance to the imposed damages. Instead, housing providers resist publicly advertising their apartments, preferring to maintain longstanding practices of relying on referrals and word-of-mouth, which limit the applicant pool.

Making fair housing more than a “trite slogan”   While the individual victories against discrimination have piled up, what would effective fair housing actually look like? It would require a proactive, systemic approach that includes expanded and more frequent testing. Freiberg envisions a system akin to the New York City Department of Health’s restaurant inspectors, who conduct unannounced inspections of the city’s 24,000 restaurants at least once a year and check for compliance on a variety of health and safety standards.

He sees the need to put significantly more resources toward vigorous enforcement as well as expanded protections to local and state fair housing laws. “Should a non-profit organization have to do this? Absolutely not. The government should be stepping up and enforcing these civil rights laws.”


Housing Brass Tacks is an ongoing, biweekly series of informal conversations with scholars and experts engaging complicated topics in housing policy, hosted by The Architectural League. Future conversations will cover homelessness, fair housing, and more. On April 10, we’ll be talking about homelessness with representatives from Picture the Homeless and Coalition for the Homeless — hope you can come.



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