The Fair Housing Act:
Department of Justice
Enforcement May 2014-April
2015
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U.S. Attorney’s Office for the
District of Idaho
April 2015
Fair Housing Act (FHA)
Prohibits discrimination on the basis of:
Race, Color, National Origin, Religion, Sex, Disability
(1988), Family Status (1988)
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Who is NOT protected?
• Age
• Marital Status
• Sexual Orientation
• Source of Income (But see ECOA)
State or local law may prevent
discrimination on these
grounds
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Fair Housing Protection for the
LGBT community
• March 2012 HUD Rule
– Bars those who own or operate HUD-funded housing from
asking about an applicant’s sexual orientation or gender
identity
• State Protection
– More than 20 states now prohibit housing discrimination
based on sexual orientation and/or gender identity
» Idaho is not among them
• City Ordinances
- Several Idaho cities have passed ordinances prohibiting
housing discrimination based on sexual orientation and/or
gender identity
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FHA Provides Broad Protection
• FHA covers “dwellings”
– Any building, structure, or portion of a
building that is occupied or intended to be
occupied
– Examples include:
» Condominiums, houses, townhouses,
duplexes, apartments (4 or more units),
homeless shelters, student housing, vacation
time shares, shelters for domestic violence
victims, group homes for recovering addicts
(but not hotels or places of temporary sojourn)
FHA Provides Broad Protection
• FHA Covers Wide Variety of Activity
Associated with obtaining, maintaining,
using “dwelling”
– Renting, owning, lending, completing
application, accessibility, entertaining
guests, placing children for adoption,
purchasing, terms and conditions of use
– DOJ has both civil and criminal
enforcement jurisdiction
Examples of Criminal Violations
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Cross Burnings
Arsons
Assaults
Threats
 Homeowners
 Prospective
purchasers
 Realtors
 Visitors
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Servicemembers Civil Relief Act
(SCRA)
Provides protections for military members as they
enter active duty, covering such issues as:
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Rental agreements, pre-paid rent, security deposits
Eviction
Installment contracts
Credit card and mortgage interest rates
Mortgage foreclosure, civil judicial proceedings
Automobile leases
Life and health insurance
Income tax payments
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HOW DOJ Gets Involved in
Enforcing Fair Housing Act
• Files “election” cases from HUD; acts on behalf of
complainant (who may intervene in suit)
• Investigates other HUD referrals for possible
enforcement action
• Independent authority to initiate lawsuits alleging
“pattern or practice” of discrimination or denial of
rights to group of persons that raises issue of
“general public importance”
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DOJ Enforcement Activities:
Remedies
• Injunctive Relief (prevention and correction)
• Monetary Damages for Aggrieved Persons
-- includes emotional distress
• Civil Penalties
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DOJ Housing Enforcement Since
April 2014
• Civil actions/settlements
– Based on disability
– Based on race
– Based on familial status
– Based on gender
– Based on affordable housing moratorium
– Based on SCRA
• Criminal prosecutions
» Typically involve arson or cross-burnings
DOJ Housing Discrimination Cases
• Disability/accessibility and design
– U.S. v. Nistler, et al., (D. Mont., October 2014)
» Montana builder and engineer agreed to pay more than $26,000 and
remove accessibility barriers at three apartment buildings in Helena
» Barriers at ground floor units and associated public and common use
areas, including inaccessible building entrances, no accessible parking,
inaccessible routes into and through units, light switches, electrical
outlets, thermostats in inaccessible locations
» $17,500 to Montana Fair Housing Council and $8,500 in civil penalties
to the U.S.
» Filed in Sept. 2013
DOJ Housing Discrimination Cases
Disability/accessibility and design
– U.S. v. Barber, et al., (W.D. Wa., Nov. 4, 2014)
» Owners and managers of rental homes in and near Kelso and
Longview, WA, agreed to pay $25,000 to resolve claims they
discriminated on the basis of disability
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$20,000 to HUD complainant
$5,000 to the United States
» Alleged pattern and practice of discrimination by allowing waiver of
$1,000 pet deposit for service animals with specialized training but not
for other assistance animals; also alleges refused tenant’s request for a
reasonable accommodation to waive $1,000 pet deposit for assistance
animal
» Under settlement agreement, defendants must also adopt a
reasonable accommodation policy that complies with FHA, receive
training on FHA requirements and, for 18 months, report on
compliance
» Lawsuit filed in July 2013
DOJ Housing Discrimination Cases
• Disability/accessibility and design
– U.S. v. Dawn Properties, Inc., et al., (May 2014, S.D. Miss.)
» Lawsuit filed against Mississippi developer and affiliated companies
alleging FHA and ADA violations in design and construction of five or
more residential properties
» Barriers include steps to building entrances, non-existent or excessively
sloped pedestrian routes from apartment units to amenities such as
playgrounds, insufficient maneuvering space for wheelchairs,
inaccessible parking
– U.S. v. City of San Jacinto, (June 2014, C.D. CA)
» DOJ settled with city, which agreed to change its laws to comply with
FHA and ADA, and agreed to pay $746,599 in compensatory damages
to housing providers and former residents with disabilities
» Includes $10,000 in civil penalties to U.S.
» Complaint alleged city violated FHA and ADA through ordinance
intended to exclude unlicensed and licensed homes for persons with
disabilities from the city and through targeting homes for persons with
disabilities for enforcement of the ordinance and other local laws
DOJ Housing Discrimination Cases
• Disability/accessibility and design
– U.S. v. Pauley, et al., (Sept. 2014, S.D. W.Va.)
» Developer and affiliated entities agreed to pay $110,000 and make $1.7
million in retrofits required to remove accessibility barriers at 30
apartment complexes involving more than 750 units
» Retrofits include replacing excessively sloped portions of sidewalks,
installing properly sloped curb ramps, replacing cabinets in bathrooms
and kitchens to provide sufficient room for wheelchair users
» $100,000 fund for compensating individuals with disabilities who were
affected; $10,000 in civil penalty to U.S.
– U.S. v. Biafora, (Sept. 2014, N.D. W.Va.)
» Lawsuit against developer and affiliated company for FHA and ADA
violations in design and construction of 23 residential properties
» Barriers include steps leading to building entrances, non-existent or
excessively sloped pedestrian routes from apartment units to site
amenities, insufficient maneuvering space, high light switches and
temperature controls, inaccessible parking
DOJ Housing Discrimination Cases
• Race/Familial Status Discrimination
– U.S. v. Ruth, et al. (N.D. Ohio, August 25, 2014)
» Defendants, landlords at three Massillon, Ohio, apartment complexes,
agreed to pay $850,000 to settle lawsuits alleging that they
discriminated against African-Americans and families
» Under terms of settlement, defendants will pay $650,000 in damages
and attorneys fees to plaintiffs in related civil suits
» $175,000 in damages to 11 additional former residents and employees
identified by the United States who had been harmed by the
defendants’ discrimination
» $25,000 in a civil penalty to the United States
DOJ Housing Discrimination Cases
• U.S. v. Town of Oyster Bay, et al., (April 2014, EDNY)
– U.S. sues town; complaint alleges that two housing
programs designed to develop below-market rate housing for
first-time homeowners and senior citizens discriminate
against African-Americans because the programs give
preference to residents of the town, who are predominantly
white
– DOJ reached settlement with Long Island Housing
Partnership, which administered the program
» LIHP agreed to injunctive relief that requires LIHP to ensure that the
residency preferences it administers are analyzed so they don’t violate
the law
» LIHP also will provide education and training to localities, banks and
individuals on fair housing laws requirements
DOJ Housing Discrimination Cases
• Familial Status
– U.S. v. Zaremba Management Company, Inc., (N.D. Ohio,
August 14, 2014)
» Department of Justice settled lawsuit filed against manager and owner
of Cleveland apartment complex for refusing to rent apartments to
families with children
» Lawsuit also alleged that defendants had a policy of evicting tenants or
asking tenants to relocate if they have children while living at Linden
House Apartments
» Linden House did not meet requirements for exemption to limit housing
to 55 and older
» Manager and owner agreed to pay $100,000 -- $90,000 to victims and
$10,000 to U.S. in civil penalties
» Lawsuit was filed in September 2013
DOJ Housing Discrimination Cases
• Familial Status
– U.S. v. Gutzmer, et al., (Oct. 2014 W.D. Wis.)
» Lawsuit against owners and operators of a Whitewater mobile home
park for its refusal to allow families with children to live in certain areas
of the park
» Families excluded from approximately 60 of 230 lots in park
– U.S. v. Woodland Garden Apts., et al., (July 2014, N.D. Cal.)
» DOJ settles with owners and operators of apartment complex in
Fremont, CA, which prohibited children from playing outside in the
common grassy areas of the complex and provided that families would
be evicted if they violated the rule
» Defendants to pay $77,500 to the victims and $2,500 to government as
civil penalty
» Lawsuit arose out of HUD referral. Five families and fair housing
organization Project Sentinel had filed complaints
DOJ Housing Discrimination Cases
• Sexual harassment/gender discrimination
– U.S. v. Southeastern Community and Family Services, Inc.,
et al., (Dec. 2014, M.D.N.C.)
» DOJ files lawsuit against public housing agency that administers the
Section 8 voucher program and against two of its employees, alleging
that they sexually harassed female voucher program participants and
applicants
» Alleges that defendants submitted participants and applicants to
unwanted sexual comments, sexual touching and other sexual acts,
conditioned or offered Section 8 benefits in exchange for sexual acts
and took adverse housing actions against those who rebuffed their
sexual advances
DOJ Housing Discrimination Cases
• Sexual Harassment/Gender discrimination
• U.S. v. Encore Management Co Inc., et al (S.D. W. Va. Nov. 1,
2014)
– Lawsuit against management company and three former employees of an
apartment complex in Cross Lanes, West Virginia, alleging that female
tenants were subjected to sexual harassment and retaliation
– Alleges that district manager and maintenance worker sexually harassed
female tenants and site manager failed to take appropriate steps when
residents complained
– Sexual harassment included entering residences of female tenants without
permission or notice, conditioning housing or housing benefits on female
tenants’ agreement to engage in sexual acts, taking adverse actions against
female residents when they refused sexual advances or reported
unwelcome conduct
DOJ Housing Discrimination Cases
• U.S. v. VanderVennen, et al., (Aug. 2014, W.D. MI)
– Grand Rapids landlord agrees to pay $550,000 in damages
and terminate manager’s responsibilities
– Lawsuit alleged manager sexually harassed female tenants
at Alger Meadow Apartments, made unwelcome sexual
comments and advances, entered female tenants units
without notice or permission, conditioned housing benefits
on tenants engaging in sexual acts and took adverse action
against those who refused his advances
– Fair Housing Center of Greater Grand Rapids brought case
to DOJ’s attention
– $510,000 to 13 victims; $40,000 to United States
DOJ Lending Discrimination Cases
• DOJ – Civil Rights Division, Fair Lending Unit of the Housing
and Civil Enforcement Section has recovered more than $1
billion for impacted communities and individual borrowers since
it was established in February 2010
• U.S. v. Fifth Third Mortgage Company, (Aug. 7, 2014, M.D. Ga.)
– Settlement of lawsuit alleging pattern or practice of discrimination on the
basis of disability and receipt of public assistance in violation of FHA and
Equal Credit Opportunity Act
– $1.5 million settlement
– Funds go to eligible mortgage loan applicants who were asked to provide a
letter from their doctor to document the income they received from SSDI.
– Under settlement, Fifth Third will also conduct training of its underwriters
and loan officers and will monitor loan applications to ensure practice does
not recur
DOJ Affordable Housing Lawsuits
• U.S. v. Louisiana State Bond Commission, (July 31,
2014, E.D. La.)
– Settlement of lawsuit alleging that the Commission violated
the FHA and the ADA by adopting a moratorium on
affordable housing financing in 2009
» Moratorium blocked financing for a proposed 40-unit affordable housing
project known as the “Esplanade”
» Twenty “Esplanade” units would provide permanent supportive housing
to persons with disabilities
– As part of the settlement, the Commission agreed to refrain
from further obstructing or delaying financing for the
Esplanade and from adopting any future policy that would
prevent consideration of affordable housing in New Orleans,
including affordable housing for persons with disabilities
DOJ Service Members Civil Relief
Act Settlement
• U.S. v. JP Morgan Chase Bank, Wells Fargo Bank,
Citi Residential Lending Inc., Citibank and
CitiMortgage, GMAC Mortgage, and BAC Home
Loans Servicing (formerly known as Countrywide
Home Loans Servicing), February 2015
– DOJ settles with five of nation’s largest mortgage servicers
– 952 service members and their co-borrowers are eligible to
receive over $123 million for non-judicial foreclosures that
violated SCRA
– The non-judicial foreclosures took place between Jan. 1,
2006, and April 4, 2012
DOJ Religious Land Use Cases
• U.S. v. St. Anthony Village, MN, (Dec. 2014, D. Minn.)
– Complaint alleged that city of St. Anthony Village violated the Religious
Land Use and Institutionalized Persons Act of 2000 by treating an
application for a conditional use permit to assemble in the St. Anthony
Business Center filed by Abu Huraira Islamic Center on less than equal
terms as other, non-religious, conditional use permits for assembly
– Sought injunctive relief requiring the city of St. Anthony Village to maintain a
worship space in the basement of the St. Anthony Business Center for Abu
Huraira
– Abu Huraira entered into purchase agreement for St. Anthony Business
Center after a three-year search for adequate prayer space; the business
center is in the “light industrial” zone of St. Anthony, conditional uses for
which included “assemblies, meeting lodges and convention halls”
– City Council voted to deny the permit despite the planning staff and
planning commission recommending the permit be approved
– Resolved in December 2014 with City agreeing to grant permit, to distribute
RLUIPA information and to have certain officials undergo training
DOJ Criminal Fair Housing Cases
• U.S. v. Flanagan, (Feb. 13, 2015, M.D. Tenn.)
– Defendant sentenced to federal prison and fined for his role
in April 2012 cross burning in front of an interracial family’s
home in Minor Hill, Tenn.
» Flanagan is a former member of the Church of the National Knights, a
KKK affiliate
– Two additional defendants will be sentenced in March 2015
Idaho Criminal Fair Housing Cases
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U.S. v. Bybee, December 1997
– Defendant threatened to kill
African-American male and
assault Native American female
– Defendant didn’t like mixed race
couple visiting a friend’s home in
Lapwai
– Right to occupy dwelling free from
interference based on race includes
right to entertain individuals of
other races in your home
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U.S. v. Mauer, et al., May 1998
– Six defendants, ages 16 to 19,
conspired to violate rights,
including housing rights, of
Hispanic residents in Nampa
– Number of assaults, acts of
intimidation
United States v. Keith Gilbert
• Gilbert I, 1987
– In December of 1980, Keith Gilbert, an avowed white supremacist, sent
racially derogatory and “threatening” correspondence to Susan Smith, a
white woman who operated an adoption agency that was trying to place
minority children
– Defendant charged in a one-count information with violating the criminal
component of the Fair Housing Act (there were other felony charges not
relevant to the FHA)
– Idaho district court dismissed the charge, finding that the connection
between the activities of an adoption agency and occupancy of a dwelling
was too remote
– The Ninth Circuit reversed, noting that the Fair Housing Act is to be
interpreted broadly, and held that “the placement of minority children by the
director of an adoption agency is a protected activity . . . Since the director
is ‘aiding or encouraging’ minorities in the occupancy of dwellings.”
United States v. Keith Gilbert
• Gilbert II, 1989
– After remand, Gilbert was convicted at trial
– On appeal after trial, he contended that the evidence was insufficient to
prove a threat of force, a required element of the criminal provision of the
fair housing act, because no single piece of correspondence threatened Ms.
Smith
– The Ninth Circuit affirmed the conviction, holding that threats should be
considered in light of the entire factual context and the court may look at
surrounding events as well as the reaction of listeners; accordingly the
district court was correct in looking at the mailings as a whole
How to Reach the USAO
Three locations
--Boise – 208-334-1211
(Amy Howe)
--CDA – 208-667-6568
(Traci Whelan)
--Pocatello – 208-478-4166
(Jack Haycock)
Questions?