Follow 3 Tips to Prepare Your Site for Fair Housing Testers

HUD is stepping up the use of testers to uncover housing discrimination.

The U.S. Department of Justice recently announced that it had obtained a settlement agreement with a Housing Authority in Oklahoma. The settlement resolved allegations that two of its former employees violated federal law when they denied housing to a Black mother and her young daughter because of their race.

Under the settlement, which was approved by the U.S. District Court for the Western District of Oklahoma, the defendants will pay a total of $65,000 to the applicant and her child, and $10,000 to the Legal Aid Services of Oklahoma Inc., whose fair housing testing exposed the Housing Authority’s discriminatory conduct. In addition, the consent decree requires the Housing Authority employees and board members to undergo training on the Fair Housing Act and Title VI, implement nondiscriminatory procedures, and submit to compliance and reporting requirements [U.S. v. Housing Authority of the Town of Love Wolf, Case No. Civ-20-1256-J].

According to the United States’ lawsuit, Housing Authority employees allegedly told a Legal Aid employee who contacted them on behalf of the applicant that units were available and invited her to apply. But when the Housing Authority learned from her application that she and her child were Black, the Housing Authority denied the application and falsely told the applicant that no apartments were available. Legal Aid then conducted testing, which confirmed that the Housing Authority was discriminating against Black applicants.

As the United States’ lawsuit alleged, the Housing Authority told a white tester that there were multiple apartments available to her and her daughter and showed her three vacant apartments. By contrast, the next day, the Housing Authority told a Black tester that no apartments were available for her and her granddaughter and did not show her an apartment.

How Testing Works

The fair housing testing that the Legal Aid organization conducted is common practice to unearth unlawful discrimination. Fair housing testing typically involves paired testers—individuals with similar credentials but of different protected classes—who may contact your site by email, phone, or website, or visit in person to check for differences in how they’re treated based on their race, national origin, or any other characteristics protected under federal, state, or local law. Since it’s unlikely that you’ll know when an email, phone call, or a visit from a prospect is really from a fair housing tester, your best bet is to treat everyone contacting you as if he or she is a fair housing tester.

Fair housing testing may be triggered by a variety of circumstances. In complaint-based testing, it’s used to verify whether an individual who claims a particular site or owner discriminated against him based on his race or other characteristic has a legitimate complaint. If the results of testing support the individual’s claim, then the evidence gathered may be used in court or enforcement proceedings.

Sometimes, testing isn’t triggered by a complaint, but conducted as part of a larger fair housing investigation. Testing may be initiated to check whether discriminatory policies or practices are a problem at one or more sites within a geographical area.

In 2021, HUD announced that it was making over $20 million available to fair housing organizations across the nation working to fight housing discrimination. A majority of the funds were earmarked for tester training initiatives for carrying out investigations and other enforcement activities to prevent or eliminate discriminatory housing practices. In anticipation of HUD stepping up the use of testers to uncover housing discrimination, we’ll give you three tips to help you avoid problems with fair housing testers.

Tip #1: Treat All Prospects as if They’re Fair Housing Testers

On any given day, you’re likely to have many interactions with prospective residents, including phone calls, email inquiries, Internet communications, or visits to your site. They may be inquiries about advertised vacancies or the availability of certain types of apartments.

You may never know when one of these encounters is part of a fair housing test because enforcement agencies and fair housing organizations generally exercise caution in selecting and training fair housing testers. In any given geographical area, local fair housing organizations may maintain a pool of trained fair housing testers who are called upon infrequently to preserve their anonymity.

So even if you have an inkling that a particular prospect is a tester—because of the type of questions being asked, the way he carries himself, or the timing of similar contacts—you really can’t be sure if a given encounter is part of a fair housing test. Testers posing as prospects may call your office or visit the site to check for differences in treatment based on race, national origin, disability, familial status, or other protected class.

Don’t forget about fair housing concerns when responding to emails or online inquiries on your website. Your best bet is to treat everyone contacting or visiting your site as if he were part of a fair housing test. Keep personal biases out of the leasing office and treat all prospects with professionalism and courtesy, starting with the initial contact—whether online, on the phone, or during visits to your property.

Consider keeping a guest card for every prospect who takes the step of visiting your site to look at vacant units. This could help you defend against an accusation of housing discrimination. Your guest cards should include certain information beyond the prospect's name, address, and contact information. This information should include:

Date and time of visit. Often, timing is an important issue in discrimination lawsuits. Unit availability may change from day to day, and even from hour to hour. Suppose a tester sues your site, claiming that management told him that no two-bedroom units were available. If you know the exact date and time the tester visited your office, you may be able to use unit availability records to disprove his claim.

Type of unit desired. You should note what size unit the prospect is interested in or eligible for. This information determines what you must tell the prospect about units at your site, and which units you must show to the prospect. Suppose that the prospect is eligible only for a studio. Noting this at the time of the visit may later help you defeat a claim that you discriminated by failing to show him a two-bedroom unit.

In addition to size and price, record the prospect's preferences such as the view, location, or other amenities or features that the prospect wants. This information may help you defeat a discrimination claim. For example, suppose that an Asian-American prospect indicates a preference for a downstairs unit. You tell him that only upstairs units are available. The prospect files a complaint with HUD, claiming that you discriminated against him on the basis of national origin. If HUD sends a tester to investigate and the tester is shown the available upstairs units, he may then assume that discrimination had occurred. But your guest card will prove that the prospect wanted only a downstairs unit, and your unit availability records will show that none was available.

Units shown. You can use this information to prove that you show available units to all interested prospects. You can also use it to prove that you showed a unit if the prospect claims that you didn't. If a prospect is unwilling or unable to see a unit, note this on the guest card.

Prospect's proposed move-in date. Suppose a prospect tells you he can't move in for six weeks, and you note this information on the guest card. You can use the information to justify:

• Telling the prospect that there may not be availability, if you expect no units to be available in six weeks;
• Not showing the prospect units that would not be available in the six weeks prior to the prospect's arrival; and
• Renting a unit to another applicant who was available to move in earlier.

Prospect's signature. This serves as evidence that the information contained on the guest card is accurate.

Fair housing slogan. Add this to your guest card. The standard fair housing slogan states that your site is an equal opportunity housing provider, observes all fair housing laws, and does not discriminate.

Outcome and explanation. When you know that a prospect will become a resident at your site, write that down. If the prospect will not become a resident, write down how far the application process went. If no units were available, did you offer to put the prospect on your waiting list? Was the applicant eligible to live at the site? Did the applicant reject your site? If so, why?

Applicants who don’t become residents provide you with a chance to state explicitly what your records merely imply: reasons for not renting to the applicant, or the applicant's reasons for not renting from you. Those reasons should be consistent with the other information contained in your records.

Tip #2: Ensure Consistency in the Leasing Office

Put in place standard, nondiscriminatory rental policies to ensure that prospects are treated fairly and consistently from the moment they contact your leasing office.

Testing is often focused on differences in the information provided to prospects about the availability of units, so it’s important to ensure that leasing agents have accurate, up-to-date information about vacancies. If, for example, you tell a couple without children about a vacant unit a short time after telling a single mother of a young child that nothing is available, it may appear that your building is discriminating against families with children. If these prospects are testers, they may get the wrong impression about why you told the first prospect that an advertised unit wasn’t available, since it’s impossible for them to know whether it’s because of blatant discrimination, sloppy record keeping, or simply that a vacancy just opened up.

Consider keeping a unit-availability log on-site. Your site is less likely to discriminate inadvertently if everyone responsible for answering unit availability questions communicates the same information. To make sure that everyone at your site is up to date on the details, create a log of all available units and make one person responsible for maintaining the log.

Require leasing staff, and anyone else who has authority to tell prospects about availability, to check the log before giving out such information. The log should be updated as units become available or are taken off the market because they've been rented. This way, if a tester claims that discrimination occurred, your unit-availability log can be strong evidence that you gave accurate information about available units and that you didn’t discriminate.

Also, make sure prospects receive the same information about the terms and conditions of tenancy, such as screening criteria, rental terms, security deposits and fees, and any other relevant information. Quoting more stringent lease terms or higher rental payments to prospects based on a protected characteristic is a violation of fair housing law.

Testers also may be looking for signs of unlawful steering—that is, guiding, directing, or encouraging prospects from living in your building or certain parts of the building based on a protected characteristic. For example, it’s a violation of fair housing law to tell Hispanic prospects that they wouldn’t be happy living in your building—or showing them only units in undesirable locations. Even if based on well-intentioned concerns about convenience or safety, failure to disclose vacancies in upper-level floors to a prospect who has a disability or families with young children could be considered unlawful steering. Whatever your personal opinions about which units are best suited to a particular prospect, tell him about all available units that meet his needs and offer to show him as many as he wishes to see.

Tip #3: Shop Your Site

Shopping yourself—either by internal means or by hiring an outside shopping service—is one of the best ways to ensure that you won’t be caught off-guard from the results of a fair housing test. It’s an effective tool to monitor whether your employees are complying with fair housing laws and to identify any weaknesses—either in an employee’s performance or in the effectiveness of your training program.

You can do it informally, by asking people you know to pose as rental prospects, but many owners hire outside shopping services to call or visit the leasing office to monitor sales and marketing as well as fair housing issues.

Whatever means you use, it’s important to follow up to determine the root cause of any deficiencies detected during the “shop.” There could be a number of reasons why a shopping service might report that a leasing consultant responded inappropriately to a shopper’s question. If it’s because the employee truly acted improperly, you should respond with disciplinary action. If the employee simply misunderstood fair housing requirements, you’ll know that the employee needs additional training.

Alternatively, the results of a shopping test may reveal a larger problem—for example, that your policy or training on a particular issue is unclear or incorrect. If that’s the case, you’ll have an opportunity to rectify the problem on your own, rather than having to address it after the fact if it surfaces for the first time during a fair housing test.