The Fair Housing Amendments Act of 1988: New Strategies for New Procedures
The Fair Housing Amendments Act of 1988 [hereinafter FHAA or the Act] represents the culmination of a ten-year effort to expand the federal government’s enforcement authority over complaints of housing discrimination. The original anti-discrimination legislation, Title VIII of the Civil Rights Act of 1968 [hereinafter 1968 Act], commonly known as the Fair Housing Act, was enacted in the wake of Martin Luther King, Jr.’s assassination and the urban unrest of the 1960s. The 1968 Act proscribed discrimination on the basis of race, color, national origin or religion in the sale or rental of private housing. While the Act expressed a strong national policy directed toward the elimination of racial bias in housing, it provided no effective administra tive mechanism for resolving statutory claims. The agency charged with enforcement, the Department of Housing and Urban Development [hereinafter HUD], was given authority merely “to try to eliminate or correct” discriminatory practices “by informal methods of conference, conciliation and persuasion.” The only other avenue of relief for an individual complainant under the statute was a private action brought in federal court. Government sponsored litigation was limited to “pattern or practice” actions brought at the discretion of the Justice Department.
For reasons obviously not limited to the failure of statutory enforcement, the 1968 Act had little impact on the elimination of housing discrimination. One oft-cited study estimated that two million acts of discrimination in the sale or rental of real estate occur annually, and that an African-American renter will experience discrimination in 75% of contacts with the housing market. Whatever the complex causes of continuing discrimination, however, Congress and civil rights advocates saw the 1968 Act’s failure to provide efficient enforcement mechanisms as a materially weak link in the federal effort to address the problem of bias. Attempts to amend the statute to provide agency enforcement beyond conciliation began in 1980 following extensive congressional hearings. Bills were introduced and additional hearings conducted in almost every subsequent year until passage of the Act. Finally, the 100th Congress adopted the Fair Housing Amendments Act, which became effective on March 12, 1989. It provides for full adjudicatory resolution of housing discrimination complaints at the agency level.
The FHAA is not only a statute directed at procedural reform. It also greatly expands the 1968 Act’s substantive protection by adding two new protected classes: families with children and disabled persons. The added protections for these groups has far reaching implications which go beyond traditional notions of individual discrimination. New multi-family constructions to provide access for people with disabilities will be required, for example, and substantial restrictions on “adult” housing developments will be imposed.
The FHAA’s substantive provisions have been considered by other commentators. The extension of protection to new classes of persons is addressed here only where issues regarding enforcement arise. Nevertheless, it is worth noting that the procedural issues and concerns raised in this Article probably will be addressed in the first instance in claims of discrimination on the basis of disability. Advocates for clients with disabilities are in the best position to test HUD’s commitment to implementing the amendments, because these claims may not be subject to referral to state agencies during the extended implementation period provided for in the Act.
The FHAA has been heralded as a breakthrough in civil rights law, presenting novel approaches to the traditional disincentives of delay and expense in enforcement, and indeed, its structure may create an effective mechanism for expeditious resolution of bias complaints. However, since the Act’s procedures are largely without precedent, the ramifications of certain innovative provisions are untested by experience or judicial construction. This Article will explore some of these potential ramifications and suggest strategies to ensure that the promise of effective enforcement is fully realized. This Article is intended primarily to assist those representing litigants in housing discrimination matters to negotiate the procedural choices provided by the Act. Part I outlines the statutory provisions governing the two routes of enforcement, administrative proceedings and federal court actions, and compares their relative advantages and disadvantages. Part II examines two critical junctures in the newly created administrative enforcement route that may detract from its effectiveness as a speedy and inexpensive method of dispute resolution. The first has to do with provisions for determination by the agency as to whether reasonable cause exists to believe that a violation has occurred or is about to occur – from which springs determination of the agency’s duty to prosecute the claim. The second considers the election process whereby either party may remove an agency proceeding to federal court. This section suggests strategies for minimizing risks to efficient enforcement posed by these windows of discretion and choice. Finally, Part III considers the extent to which the provision for referral of claims to “substantially equivalent” state and local agencies significantly delays the actual implementation of the Act, and recommends ways of guarding against this result.
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