4 Enforcement Under the Fair Housing Amendments Act

• Library: Group Homes: Strategies for Effective and Defensible Planning and Regulation (ABA) (2014 Ed.)

Because most of the fair housing litigation dealing with group homes is based on the Fair Housing Amendments Act (FHAA), this chapter details some key aspects of enforcement under the act. We start with the doctrine of standing—how courts determine whether a particular plaintiff has the ability to challenge a local government's action with regard to housing. Beyond the question of standing, the FHAA contains a variety of means by which the act can be enforced against a local government or private party responsible for housing discrimination. The act includes procedures for obtaining relief, forms in which relief can be granted, and the ways in which a party can recover attorneys' fees. This chapter discusses all of these elements.

Standing

The constitutional doctrine of standing dictates whether a party may bring a case before a court. The federal standing doctrine is rooted in Article III of the U.S. Constitution, which limits the courts' authority to reviewing cases and controversies.¹ There are three distinct requirements for a case to be brought before a federal court: the plaintiff must demonstrate "injury in fact" the plaintiff must be able to show a causal connection between the action complained of and the injury, and the plaintiff must show that it is likely that the injury would be redressed by a favorable judicial opinion.² It is the plaintiff's burden to demonstrate that the three requirements of standing are met; such a showing is not required at the pleading stage, but is necessary at later stages of litigation.³ Under the injury-in-fact prong, the plaintiff must show an injury that is "concrete and particularized" and "actual or imminent."⁴ The plaintiff him- or herself must have been the subject of the injury being complained of,⁵ with a "personal stake in the outcome" of the litigation.⁶ Furthermore, the standing doctrine does not allow a plaintiff to bring suit on the basis of a hypothetical future injury.⁷ While these remain the basic, minimum elements of standing under the Constitution, Congress may expand standing when desired.⁸ Many states have standing doctrines that parallel those of federal law. Still, local governments and fair housing plaintiffs should be aware of local standing requirements before filing an action in state court. State court standing requirements are questions of state, not federal, law.

Congress mandated expansive standing under the FHAA. Section 3602 defines an "aggrieved person" as "any person who claims to have been injured by a discriminatory housing practice or who believes that such person will be injured by a discriminatory housing practice that is about to occur."⁹ The result of this language is that courts have generally construed standing under Title VIII very broadly.¹⁰ As the Supreme Court noted in Gladstone, Realtors v. Village of Bellwood, "Congress intended standing under [the Fair Housing Act] to extend to the full limits of Article III."¹¹ Furthermore, the sweeping nature of the FHA and broad goals of Congress in passing the act has given significant support to a generous reading of the standing requirement in Title VIII cases.¹² The courts have noted that a narrower view of standing under the FHAA would frustrate the broad goals of the statute and would render fair housing organizations' efforts to end discrimination impotent.¹³ It is difficult for courts to create prudential barriers to standing in suits brought under the FHA.

In addition to granting standing to people with disabilities, the FHAA grants standing to those people living with people with disabilities and "any person associated with" people with disabilities.¹⁴ Those associated with people with disabilities include family members and group home providers, and the class of people who may sue also extends to roommates and oth-ers.¹⁵ In addition, proposed residents of a group home have standing under the act.¹⁶ Even if the state has ordered a person to reside in a group home, that person still has standing to bring an FHAA claim.¹⁷ Importantly, there is no requirement that there be actual discrimination for a person to have standing under the FHAA—it is enough that the plaintiff show that discrimination is likely and imminent.¹⁸

Beyond the standing granted to people with disabilities, many organizations have standing under the FHAA. Group home providers, as well as their vendors, have standing to sue under the act.¹⁹ As one court noted, "Courts have explicitly held that a person who is not himself handicapped, but is prevented from providing housing for handicapped people by a municipality's discriminatory acts, has standing to sue under the [FHAA]."²⁰ In other FHA contexts, such as race, religious, and sex discrimination, fair housing "testing" organizations—organizations that identify potential discrimination by sending their employees or volunteers to seek out housing that may unlawfully be made unavailable to them—have standing to pursue violations of the act.²¹ In addition, an organization whose mission was to protect and benefit low- and moderate-income people and that was required to expend significant resources to counter racial steering was found to have standing under the FHA.²² As with an individual, an organization is not required to wait until it or the people it serves have been denied a housing opportunity; standing is available to an organization that, by its nature, is injured or will potentially be injured by the local government action in question.²³

Despite the FHAA's broad standing allowance, some people and organizations lack standing under the act. First, the act protects people with disabilities to the extent they are buyers or renters of property.²⁴ Therefore, when a person living in a residential facility is not buying or renting the property but is instead receiving free housing or treatment services, that person may not be entitled to standing under the act (although that individual is likely to have standing to sue under the ADA).²⁵ The FHAA, however, does protect the underlying buyer or renter, if there is one. Moreover, advocacy organizations—whether for fair housing, for people with disabilities, or for both—lack standing where they do not actually provide housing for people with disabilities.²⁶ Nor can an organization have standing if the organization simply has a broad mission of antidiscrimination or furthering the interests of people with disabilities.²⁷ In the context of a fair housing center, the organization must demonstrate that the discriminatory regulation or action interfered with the organization's activities or operations; an assertion of standing cannot be made solely on the grounds that the organization was forced to expend money to expose the illegalities of a defendant's actions.²⁸

Finally, the statute is silent on the nature and extent of the injury a plaintiff in a Title VIII case must demonstrate. Parties are protected under Title VIII from economic loss.²⁹ For example, in a local government discrimination case, economic loss may arise where a local government has delayed approval of a group home, or where the local government has wrongfully denied the group home altogether and the group home developer has incurred some expense in the preparation of plans and applications. Other actionable injuries include emotional damage or stigmatization that comes along with being deprived of the opportunity to live in a particular community.³⁰ In the context of race discrimination, courts allow plaintiffs to sue for the loss of interracial associations.³¹ It is not entirely clear whether people with disabilities could bring a similar claim for loss of association with people without disabilities. However, because the Supreme Court has interpreted the FHAA's standing requirement very broadly, it is rare that a person challenging a local law would fail to have standing.³²

Like the FHAA, the ADA and other federal laws protecting people with disabilities have broad standing criteria. Under the ADA, however, standing is limited only to the person with a disability, and does not extend to people associated with that person.³³ Still, testing organizations have standing to sue under the ADA, as in the FHAA.³⁴ As in FHAA cases, the plaintiff in an ADA suit must allege injury-in-fact and demonstrate a causal connection between the defendant's action and the injury complained of.³⁵

Relief

The FHAA provides three principal methods of relief for people injured as a result of housing discrimination. First, a person may seek an administrative remedy from the U.S. Department of Housing and Urban Development (HUD) under 42 U.S.C. § 3610. Second, an aggrieved person may directly seek judicial relief in federal court under section 3613. Third, the U.S. Department ofJustice (DOJ) is authorized to file a claim in federal court under section 3614 if it finds a significant basis on which to file suit for housing discrimination, or if a private individual refers a case to the department. Each of these methods of relief is discussed in this section.

Administrative Relief

Section 3610 of the FHAA governs administrative enforcement and relief. To commence the administrative procedure for handling fair housing violations, the aggrieved person files a written complaint with HUD. Upon receipt of the complaint, HUD serves notice on the party that has allegedly engaged in the discriminatory practice, identifies the housing practice in question, and advises the respondent of its rights and obligations. The respondent in the complaint can answer the complaint. Upon proper notice to such parties, those not initially named as respondents may be joined. As the complaint proceeds, the parties may reach a conciliation agreement among themselves. HUD is required to approve any such agreements, and such agreements must be made public unless both parties agree otherwise and HUD finds that disclosure of the agreement is not required.

During the course of HUD's investigation, a full...