Emotional harm in housing discrimination cases: a new look at a lingering problem.

• Author: Goode, Victor M.

INTRODUCTION

With the United States Supreme Court's condemnation of legal segregation in Brown v. Board of Education (1) in 1954, and a vigorous civil rights movement that led to the passage of the 1964 Civil Rights Act, (2) the nation entered the beginning of a new era in race relations. This, and future civil rights legislation, would be characterized by the development of a national agenda for ending discrimination and promoting equality. (3) One area that was not included in this initial congressional effort, but later found its way into the legislative agenda, was the subject of housing discrimination. Despite the relatively few debates and the near absence of any extensive record from committees, Congress finally passed the Civil Rights Act of 1968. (4) This provision, enacted as 42 U.S.C. [subsection] 3601-3619 and [section] 3631, and also known as the Fair Housing Act ("FHA"), prohibits discrimination in the lease, sale, or rental of housing on the basis of race, color, religion, sex, familial status, or national origin. (5) Nevertheless, many recent commentators have agreed that few areas of the law have failed to achieve their lofty goals as dramatically and persistently as our nation's fair housing statutes. (6) The dream of ending discrimination in housing, which many hoped would provide the vehicle for integrating neighborhoods, schools, and eventually the nation's consciousness, has been largely unrealized. (7) Some have argued that this has been primarily due to the deficiencies in the law itself. (8) Others criticize the limited enforcement it has received, (9) but most agree that persistent opposition to the integration of our housing market has left Title VIII as an ironic component of the civil rights arsenal. (10) The law certainly stands as a bold and optimistic proclamation. As stated by Senator Walter Mondale, one of its sponsors, the Act would replace the nation's ghettos by "truly integrated and balanced living patterns." (11) While some civil right measures have been curtailed over the years, Title VIII has been uniformly supported by the few Supreme Court decisions that have reviewed the constitutionality or the application of the statute. (12) Since its adoption over thirty years ago, lower courts have mainly adopted an interpretation of the Fair Housing Act that reflects an effort to fulfill its broad legislative purpose. (13) Many state agencies have also adopted the principle prohibitions of Title VIII, (14) and with its 1988 amendments, the law has been strengthened, broadened, and attorney's fee provisions have permitted the private bar to play a primary role in its enforcement. (15) Nevertheless, housing discrimination remains persistent and Title VIII is a mere stopgap measure for a social issue that seems intractable. (16)

Despite repeated judicial sanctioning of the most egregious forms of housing discrimination, there are areas of fair housing law and litigation that warrant a closer examination because they reveal the legacy of racial discrimination that continues to infect the process of change in this field. This Article will examine one aspect of compensation remedies in fair housing cases. While the general scope of potential damages under Title VIII has been well established for many years, (17) one area of potential relief that remains fraught with uncertainty is adequate compensation for emotional distress. (18) While the general trend of cases, in both administrative agencies and courts, indicates that significant progress has been made in the recognition and understanding of emotional harm, failures to adequately address this issue continue. (19) Although administrative judges appear more receptive to evidence of emotional harm and are more likely to award significant damages now than in the past, (20) the federal bench has not demonstrated a similar consistency toward accepting claims of emotional harm. (21) Despite the progress in judicial recognition of the emotional harm caused by racism, there is still a disturbing trend that diminishes the value ascribed to the harm suffered by victims of housing discrimination and limits proper compensation. (22)

There are many variables that affect the awarding of emotional harm damages. (23) Achieving full compensation for emotional harm resulting from discrimination presents special practical problems and raises theoretical issues that deserve greater attention. This is particularly true in light of the new perspectives on racial discrimination emanating from the critical race and feminist legal movements. (24) Insights from these theoretical perspectives and social science studies suggest that when confronted with the full panoply of remedies designed to fully compensate the victim of housing discrimination, some juries and judges are unable to comprehend the depth of harm from discrimination and do not see an African-American plaintiff through an empathetic, unbiased lens. (25) Compensating a victim of racial discrimination requires a level of empathy and understanding that consists of more than a careful weighing of the evidence. (26) While this Article does not assert that bias by the fact-finder is the single cause of low damage awards, there is concern about the unevenness and general devaluation of many emotional harm awards, their causes, and consequences. (27) Emotional harm claims in housing discrimination cases tend to subtly reflect the shadow of racism in this country. (28) It is the persistence of segregated housing patterns that contributes to a lack of understanding of the impact of racism and a diminished sense of empathy that is so essential in compensating the full nature of the dignitary harm that flows from housing discrimination. (29)

While the pioneering work in critical race theory is one of the lenses through which the present theories of compensation are examined, particularly as it applies to African-American victims of housing discrimination, this Article also draws on other resources. The Authors have utilized the insights of personal experience in the fair housing clinic as a means of developing a practical strategy to address this problem. (30) This approach has led to a review of relevant social science data that offers some explanations and perspectives on the effects of discrimination on its victims. (31) More importantly, this Article attempts to address the issue with recommendations for presenting emotional harm issues so that both plaintiffs' attorneys and members of the judiciary can develop a deeper and more comprehensive understanding of the effects of emotional harm on victims of discrimination. (32) In examining these issues, there will be a review of the use of medical and psychotherapeutic treatment and the use of expert witnesses. It will also suggest an approach for educating fact finders about the nature of the emotional harm that flows from a racist event.

There are no empirical studies that adequately explain how and why decision-makers value emotional harm in housing discrimination cases in a manner that differs so greatly from the victim's experience and the scientific evidence of the effects of trauma resulting from discrimination. (33) This Article argues that biased perceptions, a lack of information about the depth of emotional trauma, or racial insensitivity may affect this process and it will change only with a renewed effort and a different approach to these cases from the civil rights bar. (34) It is also an attempt to provide information that may assist in the proper evaluation of emotional injury with data from social science sources that have not previously been marshaled primarily for this purpose. (35) Evidence of emotional harm must be presented in a manner that reveals the full scope of its effects. The under-valuation by decision-makers is not for the most part an open hostility to the reality of racial harm as much as it is a lack of understanding and a reflection of the cognitive distortion of race and racial issues that is a social phenomena as well as a legal one. (36) This Article will explore these dynamics from the perspective of relevant social science data and examine how they affect the analysis and understanding of evidence of emotional harm. (37) Part I provides an overview of the current state of emotional harm cases. Part II discusses the issue of bias in the process of reviewing discrimination cases from the perspective of critical race theory and recent social science data. In Part III, this Article examines the cycles of ignorance that have contributed to an under-valuation of emotional harm in housing discrimination litigation. Finally, suggestions are made about how to gather relevant psychological and medical information on the effects of discrimination and how to incorporate that information into a case so that the full extent of emotional harm is more properly understood and the victim of discrimination is made whole.

1. EMOTIONAL HARM OVERVIEW

   Title VIII of the 1968 Civil Rights Act has been the primary legal instrument at the federal level for attacking housing discrimination for the last thirty years. (38) The Act has had mixed results, but has generally received judicial support, and over its brief life there has been very little dilution in its scope and application. (39) Unlike the Equal Protection Clause of the Fourteenth Amendment and Title VII of the 1964 Civil Rights Act, which have gone through an evolution of expansion followed by a more restrictive interpretation by the Courts, (40) the FHA and its post-Reconstruction predecessor, 42 U.S.C. [section] 1982, have both received supportive judicial interpretations and have changed very little. (41) Yet, despite this generally favorable judicial treatment, housing discrimination remains a persistent social problem, which seems to elude any solution through litigation. (42) Persistent patterns of residential segregation are a constant reminder of the lack of...