I.
Executive Summary
In the past few years, the immigration debate in the United States has received
unprecedented attention. At the same time, immigrants themselves have been subject to
increased scrutiny, with many local and state governments passing laws intended to make life
more difficult for undocumented immigrants and to encourage them to move elsewhere. These
laws, however, affect more than just undocumented immigrants. They often affect entire
immigrant communities, feeding suspicions and even hostility that some members of society
may have toward anyone who “appears undocumented.” Anti-immigrant laws also affect society
at large by consuming scarce public resources and depriving communities of the contributions of
immigrants.
Concerned that this growing hostility toward immigrant communities, particularly Latino
communities, has led to discrimination in the rental housing market, the Equal Rights Center
(ERC) initiated an investigation that included fair housing testing across the Commonwealth of
Virginia to examine whether Latinos and their white counterparts are treated differently when
seeking the same rental housing.
The ERC’s testing revealed that Latino applicants received more adverse treatment than
their white counterparts in at least one respect 55% of the time (58 out of 106 tests conducted),
with 18% (19 of 106 tests conducted) receiving more adverse treatment in multiple respects.
This adverse treatment included:

Being quoted higher rents or higher fees than white testers for the same rental unit;

Not being offered incentives and specials that were offered to white testers seeking the
same housing;

Being offered later availability dates, or being offered fewer available units than those
offered to white testers; and

Being told about additional application requirements, such as credit checks and/or
providing a social security card, which were not told to white testers.
Based on these findings, the ERC and Drinker Biddle & Reath LLP make the following
recommendations:
1. State and local legislators must ensure that all immigration-related bills encourage fair
housing and comply with federal civil rights laws that prohibit discrimination based on
national origin.
2. Housing providers must ensure that their staffs receive fair housing training.
3. Housing providers should develop written materials that detail rental fees, costs, and
application requirements in order to ensure uniformity in the information provided to
applicants.
4. Tenants and prospective tenants should be aware of their fair housing rights and be
prepared to enforce these rights when they are violated.
II.
About the Authors
The Equal Rights Center
Originally formed in 1983, the Equal Rights Center is a national non-profit civil rights
organization dedicated to promoting equal opportunity in housing, employment, public
accommodations, and government services. Based in Washington, D.C., with nearly 6,000
members located in all 50 states, Puerto Rico, and the District of Columbia, the ERC works to
identify, address, and remedy both individual instances of discrimination, as well as large-scale,
2
systematic discrimination nationwide. The ERC’s 30 years of service as a forceful fair housing
advocate has opened housing opportunities for tens of thousands of individuals.
At the core of the ERC’s success in promoting civil rights is its three decades of
experience in civil rights testing. Through a variety of innovative testing techniques, the ERC
has become a national leader in identifying and documenting differences in the quality, quantity,
and content of information and services provided to individuals based on individual factors and
characteristics. Through this testing process, the nature and extent of illegal discrimination can
be ascertained. The ERC conducts hundreds of civil rights tests each year to educate the public
and government officials about the discrimination still faced by many individuals across
America.
Drinker Biddle & Reath LLP
Drinker, Biddle and Reath is a national law firm with 650 lawyers in 11 offices. The
firm combines a comprehensive range of traditional legal practices with significant national roles
in such practices as class action defense, corporate and securities, government relations, health
care, intellectual property, insurance, investment management, private equity, bankruptcy,
energy, environmental, education, and communications. Drinker Biddle also has a long tradition
of handling pro bono work and taking on unpopular causes.
In 2009, Drinker Biddle launched the Barbara McDowell High Impact Pro Bono
Initiative, a program that aims to significantly and positively impact social justice concerns faced
by indigent, charitable or civic groups unable to afford legal services. The McDowell Initiative
was inspired by the late Barbara McDowell, a national leader in public interest advocacy who
died of brain cancer in January 2009, and served as the founding director of the Appellate
3
Advocacy Project of the Legal Aid Society of the District of Columbia. Barbara was the wife of
Drinker Biddle partner Jerry Hartman.
III.
Latino Population Growth
In a nation founded on, and strengthened by immigration, Latinos have become the
largest minority group in the United States, numbering 50 million and comprising 16% of the
total United States population.1 The recent growth of the nation’s Latino population has been
rapid, expanding by 43% between 2000 and 2010.2
In the Commonwealth of Virginia, approximately 632,000 Latinos make up 8% of the
state’s total population.3 The size of this group has grown at a rate much faster than the national
rate, nearly doubling between 2000 and 2010.4 In some areas, Virginia’s Latino communities
have grown by as much as 400%.
Latino Population Growth in Selected Virginia Cities and Counties
County
20005
20106
Increase
Augusta County
620
1,525
905
Percentage
Increase
146%
Culpeper County
858
4,157
3,299
384%
Fairfax City
2,932
3,556
624
21%
Frederick County
1,004
5,168
4,164
415%
Henrico County
5,946
15,001
9,055
152%
Pew Hispanic Center, “Hispanics Say They Have the Worst of a Bad Economy” (Jan. 26, 2012),
http://www.pewhispanic.org/2012/01/26/hispanics-say-they-have-the-worst-of-a-bad-economy/.
2
Sudeep Reddy, “Latinos Fuel Growth in Decade,” New York Times, Mar. 25, 2011, A2.
3
U.S. Census Bureau, State and County Quick Facts, Virginia,
http://quickfacts.census.gov/qfd/states/51000.html.
4
Carol Morello and Dan Keating, “Minority Ranks Boom in Virginia,” Washington Post, Feb. 4, 2011, A01.
5
U.S. Census Bureau, Race and Hispanic or Latino: 2000 – State – County / County Equivalent, 2000
Census Redistricting Data (Public Law 94-171) Summary File.
6
U.S. Census Bureau, Race and Hispanic or Latino: 2010 – State – County / County Equivalent, 2010
Census Redistricting Data (Public Law 94-171) Summary File.
1
4
Loudoun County
10,089
38,576
28,487
282%
Manassas City
5,316
11,876
6,560
123%
Prince William
County
Richmond County
27,338
81,460
54,122
198%
185
510
325
176%
Roanoke County
888
1,951
1,063
120%
Rockingham
County
Virginia Beach City
2,221
4,076
1,855
84%
17,770
28,987
11,217
63%
IV.
Fair Housing Protections for Immigrants
Recognizing the integral role that immigration has played in the nation’s history, civil
rights laws have consistently protected against discrimination based on national origin. The
federal Fair Housing Act (FHA) is no exception. The FHA prohibits discrimination in the sale,
rental, and financing of dwellings, and in other housing-related transactions based on race, color,
national origin, religion, sex, familial status, and disability.7
National origin discrimination consists of different, disparate, or adverse treatment of an
individual because of his or her actual or perceived birthplace, ancestry, culture, or linguistic
characteristics identified as common to a particular group. Denying housing, offering different
terms or conditions in order to rent an apartment, or providing information that would amount to
decreased availability because of an applicant’s national origin (or any other federal, state, or
locally protected category) violates fair housing laws, regardless of the person’s immigration
status. In some instances, individuals are subject to discrimination based on a combination of
categories protected by the civil rights laws, such as national origin, race, and color.8
7
42 U.S.C. §§ 3601, et seq.
See Kristina M. Campbell, “Local Immigration Relief Act Ordinances: A Legal, Policy, and Litigation
Analysis,” 84 Denv. U. L. Rev. 1041, 1051-52 (2007).
8
5
State and local fair housing laws, at a minimum, tend to include protections for the
classes of people protected under federal law. The Virginia Fair Housing Law includes all seven
federally protected classes, as well as “elderliness,” a prohibition on housing discrimination
against individuals 55 years of age and older.9 Therefore, Latinos in Virginia who experience
housing discrimination due to their national origin are protected under both federal and state law.
Despite the legal protections of the FHA, and similar state and local laws, housing
discrimination persists on both individual and systemic levels. In any given year, an estimated 4
million fair housing violations occur.10 Incidents of housing discrimination, however, are
woefully underreported. In 2011, for example, only slightly more than 27,000 housing
discrimination complaints were filed with government agencies, many of which alleged multiple
fair housing violations.11 Of these, more than two thousand alleged discrimination based on
national origin.12 The frequency of incidents of national origin discrimination may be affected
by a variety of factors, including a hostile environment made worse by the enactment of state and
local laws purporting to combat illegal immigration.
V.
Anti-Immigrant Legislation
Counterbalancing the well-established prohibition on discrimination based on national
origin is the rise of anti-immigrant legislation purportedly intended to target undocumented
immigrants. In various states, counties, and cities across the country, this legislation appears to
have surfaced both as a result of, and as a cause of, increasing hostility toward immigrants. This
9
Va. Code Ann. §§ 36-96.1, et seq.
National Fair Housing Alliance, “Fair Housing in a Changing Nation: 2012 Fair Housing Trends Report,” 5
(Apr. 30, 2012), available at
http://www.nationalfairhousing.org/LinkClick.aspx?fileticket=GBv0ZVJp6Gg%3d&tabid=3917&mid=5321.
11
Ibid. at 6.
12
Ibid. at 6-8.
10
6
trend became more dramatic as the U.S. economy weakened, causing immigrants – and
particularly undocumented immigrants – to serve as scapegoats during the recession.13
A. National Trends
As the nation’s Latino population has grown, and as the debate over immigration reform
has become more intense, hostility towards Latinos in general has also grown. Two troubling
trends demonstrate this increased hostility. First, hate crimes targeting Latinos have increased
dramatically over the past ten years.14 Second, during the same period, many state and local
governments have enacted harsh legislation purporting to target undocumented immigrants and
encourage them to leave.15 The rise in state and local anti-immigrant laws has increased racial
tensions, led to threats and attacks against Latinos (whether documented or not), and has
undermined Latinos’ trust of law enforcement and government.16
Perhaps the most publicized anti-immigrant legislation is Arizona’s S.B.1070, which
introduced the policy of “attrition through enforcement,”17 establishing conditions considered so
harsh that immigrants would be forced to “self-deport” or otherwise leave the state. S.B. 1070
made it a state crime for individuals to fail to comply with federal immigrant registration
requirements and for undocumented immigrants to seek or engage in work in the state.18 It also
authorized local law enforcement officers to arrest, without a warrant, any person they had
See Immigration Policy Center, “Restrictionists Use Immigrants as Scapegoat for Economic Crisis” (Oct. 6,
2008), http://immigrationimpact.com/2008/10/06/restrictionists-use-immigrants-as-scapegoat-for-economic-crisis.
14
Southern Poverty Law Center, “When Mr. Kobach Comes to Town: Nativist Laws & the Communities
They Damage,” 5 (January 2011), http://cdna.splcenter.org/sites/default/files/downloads/publication/
Kobach_Comes_to_Town.pdf; Leadership Conference on Civil Rights Education Fund, “Confronting the New
Faces of Hate: Hate Crimes in America,” 14 (2009), http://www.protectcivilrights.org/pdf/reports/hatecrimes/
lccref_hate_crimes_report.pdf.
15
“When Mr. Kobach Comes to Town,” supra note 14, at 5.
16
Ibid.
17
Support Our Law Enforcement and Safe Neighborhoods Act (“S.B. 1070”), 49 th Leg. 2d Reg. Sess. (Ariz.
2010) (“The legislature declares that the intent of this Act is to make attrition through enforcement the public policy
of all state and local government agencies in Arizona.”).
18
S.B. 1070 §§ 3, 5(C) (Ariz. 2010).
13
7
probable cause to believe had committed a crime that would make the person deportable.19 In
certain circumstances, the law required officers who stopped, detained, or arrested an individual
to verify the immigration status of the suspect, often referred to as the “show me your papers”
law.20 In June 2012, the Supreme Court struck down all but the last of these provisions as
preempted by federal law.21 The “show me your papers” provision has only recently gone into
effect, but many believe that it will exacerbate racial profiling and unwarranted harassment of
Latinos by law enforcement.22
Since the passage of S.B. 1070, several states have enacted even harsher anti-immigrant
provisions intended to discourage entry or residence of undocumented immigrants. The first to
do so was Georgia, which enacted H.B. 87 in 2011. In addition to adopting similar measures
passed by Arizona, H.B. 87 imposed new hiring requirements for employers, increased penalties
for workers convicted of using false identification to obtain work and criminal penalties for
people who transport or harbor immigrants without legal status.23 In 2011, South Carolina also
attempted to go one step further through the creation of a new state immigration enforcement
unit.24
In 2011, Alabama passed the most extreme measures to date to facilitate “attrition
through enforcement.” Among its provisions, Alabama’s H.B. 56 prohibits an undocumented
immigrant from receiving state or local public benefits, enrolling or attending a public college,
19
Ibid. § 6.
Ibid. § 2(B).
21
See Arizona v. United States, 132 S. Ct. 2492, 2501-10 (2012).
22
Julia Preston, “Immigration Ruling Leaves Issues Unresolved,” New York Times, June 27, 2012, A14.
23
Illegal Immigration Reform and Enforcement Act of 2011, H.B. 87 (Ga. 2011). See also A. Elena Lacayo,
“The Wrong Approach: State Anti-Immigration Legislation in 2011,” National Council of La Raza (NCLR), 15
(2012), http://www.nclr.org/images/uploads/publications/The_Wrong_Approach_Anti-Immigration_Leg.pdf.
24
S. 20 § 23-6-60 (S. Car. 2011).
20
8
seeking or performing work as an employee or independent contractor.25 H.B. 56 also requires
schools to check the immigration status of students, and requires businesses to enroll in the
federal E-Verify program to monitor the immigration status of all applicants and new hires. The
law also criminalizes business transactions with undocumented immigrants, and makes it a
misdemeanor for undocumented immigrants to fail to carry immigration documents.26 Section
27 of H.B. 56 further prohibits Alabama state courts from recognizing or enforcing contracts
with “an alien unlawfully present in the United States.”27 This provision is particularly
troublesome because it isolates undocumented immigrants from the protection of the state,
making them even more vulnerable to exploitation, particularly when seeking housing and
employment. For example, under H.B. 56, if a landlord unilaterally withdraws its lease with an
undocumented immigrant, or fails to meet basic health, safety and accommodation standards, the
undocumented immigrant would have no legal recourse.28
Similar trends are appearing in other states. Indiana and Utah have passed what some
have referred to as “Arizona-lite” laws, which include many of the same provisions as Arizona’s
law, but with less severe criminal consequences. 29 Missouri’s S.B. 590 incorporates some of
Alabama’s provisions, including requiring police officers to verify the immigration status of
individuals they suspect to be “unauthorized,” making it a crime for immigrants to fail to carry
Beason-Hammon Alabama Taxpayer & Citizen Protection Act, Act 2011-535 (“H.B. 56”), available at
http://alisondb.legislature.state.al.us/acas/searchableinstruments/2011rs/bills/hb56.htm.
26
Ibid.
27
Ibid.
28
Michele Waslin, “Provisions in Alabama’s Immigration Law Go Further than you Think,” American
Immigration Council (Nov. 8, 2011), http://immigrationimpact.com/2011/11/08/provisions-inalabama%E2%80%99s-immigration-law-go-further-than-you-think/.
29
Lacayo, supra note 22, at 15.
25
9
their immigration documents at all times, and mandating that schools verify the immigration
status of enrolling students and their parents.30
Even before the passage of Arizona’s law, local governments enacted measures targeting
undocumented immigrants, particularly with respect to housing. One of the first of these
measures passed in 2006 in Hazleton, Pennsylvania. Although it has not yet been enforced due
to legal challenges, the measure would fine landlords who rent to undocumented immigrants, and
require prospective tenants to register with City Hall and purchase a rental permit.31 Another
measure, enacted in 2008 in Farmers Branch, Texas, and also subject to legal challenges, would
require the city’s building inspector to check the immigration status of any noncitizen seeking to
rent an apartment, bar undocumented immigrants from rental housing, and revoke the rental
licenses of landlords who knowingly allow undocumented immigrants to rent from them.32 A
Fremont, Nebraska ordinance, passed in 2010 after a citizen petition drive, would make it illegal
for landlords to rent to undocumented immigrants and would require people who want to rent
apartments to obtain an occupancy license by registering with the police department, at which
time their immigration status would be checked.33
At the time of this writing, a bi-partisan consensus has begun to emerge at the federal
level about making comprehensive immigration reform a higher priority. While it remains to be
seen what, if any, reform will occur, even substantial reform is unlikely to significantly lessen
anti-immigrant hostility at the state and local levels in the short term.
Seth Hoy, “More States Introduce Costly Immigration Enforcement Bills in 2012,” American Immigration
Council, http://immigrationimpact.com/2012/02/03/more-states-introduce-costly-immigration-enforcement-bills-in2012.
31
Mary Claire Dale, “Pa. City Tries Again to Enact Immigration Rules,” Associated Press State and Local
Wire, Aug. 15, 2012.
32
“Court upholds ban on Texas Immigrant Housing Law,” Associated Press State and Local Wire, Mar. 22,
2012.
33
Leslie Reed, “Fate of Freemont Immigration Ordinance Remains Unclear,” Omaha.com, June 26, 2012,
http://www.omaha.com/article/20120625/NEWS/706269991.
30
10
B. Virginia Legislation
Parts of the Commonwealth of Virginia have demonstrated similar hostile attitudes
towards undocumented immigrants and have pursued similar legislative efforts. In a July 2012
poll, 64% of Virginians surveyed supported Arizona’s “show me your papers” law.34 In fact,
two years before Arizona’s law passed, in 2008, Virginia enacted a law requiring law
enforcement to check the immigration status of anyone taken into custody to determine whether
they are legally in the United States.35
More recently, in the year 2011 alone, the Virginia legislature considered twelve antiimmigrant bills, and passed two of them.36 The enacted legislation: (1) requires the Department
of Motor Vehicles to cancel any license, permit or identification card it has issued if the federal
government informs it that the recipient is not legally in the country; and (2) requires employers
with more than 50 employees that contract with state agencies to use E-Verify.37
Some local governments within Virginia have also passed anti-immigrant measures,
apparently in response to a growing anti-immigrant sentiment within their respective
communities. The first to do so was the City of Manassas, which implemented a Residential
Overcrowding Code Enforcement Program in 2004. City legislation narrowed the definition of
“family” in order to limit the number of people who could live in a home—having a direct and
adverse impact on Latino families which, in many instances, include more extended family
members in their family unit. This program encouraged the City’s residents to police their
Bob Lewis, “Va. Wants Tough Immigration Curb,” Associated Press State & Local Wire, July 23, 2012.
Va. Code Ann. § 19.2-83.2.
36
American Civil Liberties Union of Virginia, “Anti-Immigrant Bills Fall in Virginia Senate,”
https://acluva.org/7077/anti-immigrant-bills-fall-in-virginia-senate/.
37
National Conference of State Legislatures, “2011 Immigration-Related Laws, Bills and Resolutions in the
States: Jan. 1–March 31, 2011,” http://www.ncsl.org/issues-research/immig/immigration-laws-and-bills-spring2011.aspx. Run by the U.S. Department of Homeland Security, Citizenship and Immigration Services, E-Verify is
an on-line database that allows businesses to determine whether their employees are eligible to lawfully work in the
United States.
34
35
11
neighbors through the filing of anonymous “overcrowding” complaints for investigation by the
City’s property maintenance inspectors.38
City officials also obtained confidential student
information from the school district in order to identify instances in which multiple children with
different (usually Latino-sounding) last names appeared to be sharing the same home. This
information was then -used by City inspectors and the Zoning Office as a basis for conducting
inspections of those homes.
Virtually all households inspected under this program were
Latino.39 In response to litigation brought by the ERC and seven Latino families in Manassas,
both the City and the school district entered into settlement agreements that ended these practices
and imposed corrective measures that were monitored by the ERC until the settlement expired in
early 2012.40
In Prince William County, where the Latino population nearly doubled between 2000 and
2005, a resolution was adopted in 2007 that required police officers to ask about the immigration
status of any arrestee that they had probable cause to believe was not in the country legally.41
Faced with concerns about the potential for racial profiling, the county modified the policy to
require that police check the immigration status of all arrestees. 42 The resolution also denied
undocumented immigrants access to certain public services, including business licenses and
mortgage and rental assistance.43
In addition to creating a general sense of mistrust and
unwelcomeness among immigrants, these policies caused even documented immigrants,
38
See Complaint, Equal Rights Center v. City of Manassas, Civ. No. 1:07-cv-1037, filed Dec. 10, 2007.
Ibid. One month after the program was implemented, 99% of the homes inspected by the City of Manassas
belonged to Latino families.
40
See Press Release, Equal Rights Center, Manassas City Council Approves
Settlement of Civil Rights Lawsuit (Sept. 23, 2008),
http://www.equalrightscenter.org/site/DocServer/09.23.08_Manassas_City_Council_Approves_Settlement_of_Ci.pd
f?docID=1263&AddInterest=1162.
41
Natasha Altamirano, “Prince William to Check Immigration Status,” Washington Times, July 11, 2007,
A01.
42
Associated Press, “The Damage Has Been Done, Va. Crackdown Causing Hispanic People to Leave, Many
Say,” Charleston Gazette, May 27, 2008, 2D.
43
Ibid.
39
12
including Latinos, to leave or avoid the county entirely.44 This negative view of Prince William
County, at least among Latinos, has continued for years afterward.45 As discussed below, such
negative views can have a significant impact on the economic welfare of the community as a
whole.
After Prince William County enacted its 2007 resolution, other Virginia counties
announced their plans to “crack down” on undocumented immigrants through measures that
heightened tension with the entire Latino community. To this end, several Virginia cities and
counties elected to participate in the “287(g) program” overseen by the U.S. Immigration and
Customs Enforcement (ICE), which gave state and local police officers the authority to enforce
federal immigration laws.46 For example, in June 2008, Loudoun County officials announced
that police would check the immigration status of all arrestees they suspected were in the country
illegally.47 In December 2008, Manassas police began checking the immigration status of
anyone arrested in the city.48 Contributing to the effect of these local measures in Virginia and
nationwide is ICE’s ‘Secure Communities Program,” which automatically checks fingerprint
data from state and local jails against federal immigration databases. 49 Critics of these programs
say that they result in racial profiling, damage relationships between the police and immigrant
communities, and undermine immigrants’ trust of law enforcement.50 Recognizing these
University of Virginia Center for Survey Research, “Evaluation Study of Prince William County’s Illegal
Immigration Enforcement Policy FINAL REPORT 2010: Executive Summary,” 8-9 (Nov. 2010),
http://www.coopercenter.org/sites/default/files/csr/Exec%20Summary%20with%20titlePWC%20Immigration%20Eval%2011.18.10s.pdf.
45
Ibid.
46
ICE, Fact Sheet: Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act,
http://www.ice.gov/news/library/factsheets/287g.htm. In 2012, ICE decided not to renew this program. See ICE,
News Release, http://www.ice.gov/news/releases/1212/ 121221washingtondc2.htm.
47
Bill Brubaker, “Loudoun to Check Residency in Arrests,” Washington Post, June 18, 2008, B01.
48
Jennifer Buske, “Manassas to Check Arrestees’ Immigration Status,” Washington Post, Nov. 2, 2008,
PW03.
49
Gregg MacDonald, “Benefits of ICE Program Questioned,” Washington Post, Dec. 9, 2010, T19.
50
Ibid.; Tara Bahrampour, “Counties See Fewer Hispanic Residents,” Washington Post, Feb. 1, 2011, B06.
44
13
potential consequences, at least one Virginia county, Arlington, attempted to opt out of the
Secure Communities Program but was informed that it could not do so.51
C. The Cost of Anti-immigrant Legislation
In addition to the infringement of civil rights that often results from anti-immigrant
legislation, these legislative measures also impose significant financial costs on the entire
community, not just on undocumented immigrants. Discriminatory housing policies and
practices have further restricted options for many Latino families, who are more likely than
white families to live in marginalized and resource-poor neighborhoods.52 Further, when
immigrants choose to leave a community because legislation aimed at undocumented immigrants
has made their own lives more difficult, they take their money and buying power with them.
This hurts small businesses, families and local tax revenues, hindering the state’s economic
growth during a critical time. In Arizona alone, S.B. 1070 is projected to cost in $490 million in
lost revenue from tourism, $86 million in wages, and 2,800 jobs.53
While no one has estimated the economic cost of Virginia’s anti-immigrant measures,
anecdotal information suggests that those measures will be just as damaging to the local
economy. Prince William County Supervisor Frank Principi has noted that anti-immigrant
measures have cost his county millions of dollars, due to “lost property tax revenues, … lost
sales tax revenues, and some income tax revenue. When the buying power leaves the
community, small businesses close, foreclosures go up.”54 Principi further noted that the law
51
Ibid.
See John A. Powell, “Reflections on the Past, Looking to the Future: The Fair Housing Act at 40,” 18 J.
Affordable Housing & Community Dev. L. 145, 148 (2009).
53
Hoy, supra note 29.
54
Pat Young, “Impact of Anti-Immigrant Laws on One Virginia County” (Jan. 25, 2011),
http://nysiaf.org/2011/01/25/impact-of-anti-immigrant-laws-on-one-virginia-county/ (last visited Dec. 26, 2012)
52
14
“has damaged [the] community’s brand and reputation. This plays out in businesses choosing
not to locate offices in Prince William County.”55
VI.
The ERC’s Testing Investigation
A. Methodology
In order to examine whether housing providers and rental agents in Virginia treat Latino
applicants more adversely than white applicants, the ERC conducted 106 matched-pair, in person
civil rights tests of rental properties in regions throughout the Commonwealth, including: City
of Fairfax, Henrico and Richmond Counties, Loudoun County, Prince William County
(including Manassas), Roanoke County, Northwest Virginia (covering Augusta, Culpeper,
Frederick, and Rockingham Counties), and Virginia Beach. To select areas within the
Commonwealth for testing, the ERC reviewed demographic data in order to identify areas with
recent growth in Latino population that were in close proximity to areas that were predominantly
white. The ERC then identified rental properties in the predominantly white areas that were
likely to see Latino population growth over time. Finally, the ERC conducted research to ensure
that selected rental properties had a minimum of twenty-five (25) rental units and had units
actually available for rent at the time of testing.
The testing, designed and conducted by the ERC, consisted of “matched-pairs” of Latino
and white testers who were given similar, but not identical, personal and financial profiles
including occupation, income, and rental and credit history. To the extent that the testers’
profiles varied (except with respect to national origin), the Latino (protected) tester was given
more attractive attributes than the white (control) tester, such as a slightly higher annual income.
Additionally, while both testers visited a test property on the same day, the Latino tester always
visited the property before the white tester, in order to increase the likelihood that the Latino
55
Ibid.
15
tester was presented with more rental options than the white tester. The purpose of these design
elements was to reduce, to the extent possible, the number of potential reasons, actual or
perceived, other than national origin why Latino testers might receive more adverse treatment
than their white counterparts.
Immediately before each rental property was tested, an “advance caller” contacted the
property to inquire about unit availability and rental prices. Once availability was confirmed, an
ERC test coordinator scheduled first a Latino tester, and then a white tester, to visit the property
on the same day and within a short period of time. In most instances, the testers met with the
same rental agent at each property. Testers were directed to inquire about the availability,
pricing, and requirements to rent an apartment unit with either a flexible or set move-in date
based on the information obtained from the advance call. Testers also collected any printed
materials provided to them and submitted these items to the test coordinator for inclusion in test
analysis.
All testers – both Latino and white – were lawfully present in the United States at the
time of testing. They were screened, trained and supervised by ERC program staff. ERC
program staff also coordinated all tests, including tester briefing and de-briefing.
Testing data were compiled and analyzed by ERC staff in conjunction with attorneys
from Drinker Biddle. This involved reviewing the results of each matched-pair test to determine
whether one tester received different information, or was treated differently from the matched
tester. Where appropriate, the ERC and Drinker Biddle established benchmarks and cut-off
points to create uniformity in results.
VII.
Testing Results
16
In 58 of the 106 tests (55%), the Latino tester received more adverse treatment than
the white tester in at least one respect: being informed of higher rent or fees, fewer incentives
or specials, later apartment availability, or fewer available apartments. In some instances, Latino
testers were told that they would have to submit to a credit check or other application
requirements, while their white counterparts were not. In 19 tests (18%), the Latino tester
received more adverse treatment than the white tester in two or more respects, such as
being told of fewer available apartments and that the apartments would become available on a
later date.
As noted above, the testing methodology used in this survey was designed to portray the
Latino testers as more favorable prospective tenants than their white counterparts in several
respects. It was therefore no surprise that, in multiple tests, the Latino tester received more
favorable treatment than the matched white tester. Those results are not addressed here.
A.
Differences in Rent or Fees
For the majority of prospective tenants, cost is the most decisive factor in determining
whether to rent a unit. Generally, the higher the rent and fees, the less likely a person will be to
sign a lease. Thus, rental agents may discourage one of two similar situated potential tenants by
quoting a higher rent amount, or describing additional fees. In 6 tests (6%), rental agents
quoted a higher rental amount or higher fees to Latino testers than they quoted to white
testers.56 This type of treatment occurred twice in Prince William County (9% of tests there),
once in the City of Fairfax (20% of tests there), and 3 times in Virginia Beach (14% of tests
there).
B.
Incentives and Specials
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Cost differences of below $10 were not included in order to account for the practice of daily fluctuating prices,
and/or the failure of agents to accurately recall each day’s new rental price.
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Incentives or specials, such as offering a month of free rent, or waiving otherwise
required fees, are often used by housing providers to induce a prospective tenant to make an
immediate decision to rent. In 14 tests (13%), white applicants were informed of rental
incentives and special offers, while Latino applicants at the same properties were not. This
type of different and adverse treatment was observed in 5 tests in Prince William County (23%
of tests there), 2 tests in Roanoke County (12% of tests there), 3 tests in Virginia Beach (14% of
tests there), 2 tests in Richmond and Henrico Counties (9% of tests there), 1 test in Northwest
Virginia (9% of tests there), and 1 test in Loudoun County (17% of tests there). When such
different treatment occurs, a Latino applicant may be required to pay more to move into an
apartment than a white applicant seeking to move into the same apartment.
C.
Date Apartments Were Available Ensuring that a unit will actually be
available when a prospective tenant needs to move is likewise often a determining factor in
finding housing. Rental agents may discourage prospective tenants by telling them that no units
will be available in the timeframe needed, thus encouraging them to look elsewhere. As
explained above, the tests were designed in such a way that the Latino tester, who visited the
apartment building earlier in the day than the white tester, should have been presented with more
rental options than the white tester in the vast majority of tests. Yet in 16 tests (15%), rental
agents provided Latino testers with later availability dates for apartments than were
offered to white testers. This occurred in 5 tests in Prince William County (23% of tests there),
5 tests in Virginia Beach (23% of tests there), 2 tests in the City of Fairfax (40% of tests there), 2
tests in Roanoke County (12% of tests there), and 2 tests in Richmond and Henrico Counties (9%
of tests there).
D.
Number of Available Apartments
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Equal housing opportunity requires housing providers to offer each prospective tenant the
same number and range of housing options. Sometimes, prospective tenants are only told about
certain available units as a means of “steering” them toward, or away from, certain sections of a
building or property, keeping their options within a smaller price range, or for other
discriminatory reasons. In 23 tests (22%), rental agents informed the Latino tester of fewer
available units. This occurred in 3 tests in the City of Fairfax (60% of tests there), 7 tests in
Prince William County (32% of tests there), 5 tests in Virginia Beach (23% of tests there), 4 tests
in Roanoke County (24% of tests there), and 2 tests in Richmond and Henrico Counties (9% of
tests there). This same type of adverse treatment also occurred once in Loudoun County (17% of
tests there) and once in Northwest Virginia (9% of tests there).
E.
Application Requirements
The imposition of additional application requirements, such as a credit check or payment
by money order (rather than personal check), can be a strong disincentive to renting, and act as a
barrier to equal housing opportunity. In 6 tests (6%), Latino testers were told that a credit
check was required, while white testers were not. This occurred in 3 tests in Prince William
County (14% of tests there), 2 tests in Roanoke County (12% of tests there), and 1 test in
Virginia Beach (5% of tests there).
Other instances where additional requirements were imposed on Latino testers but
not white testers occurred in 19 tests (18% of all tests). In 11 tests (10% of all tests), the
Latino tester was either informed of a higher security deposit amount than the white tester or was
informed that a security deposit was required while the white tester was not. In 5 tests (5% of all
tests), the Latino tester was required to provide proof of a social security number, while the white
tester was not. In other instances, the Latino testers, but not the white testers, were told that they
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needed to obtain renter’s insurance (2% of all tests), needed to have their signature on the
application notarized (1% of all tests), needed to meet a minimum income requirement (1% of all
tests), could not have any prior civil suits against them (1% of all tests), or were required to
undergo a criminal background check and employment verification and provide a rental history
(1% of all tests).
V.
Conclusions and Recommendations
In light of the above findings, the ERC and Drinker Biddle make the following
recommendations:

State and Local Legislators Must Ensure that Immigration-Related Bills Encourage
Fair Housing and Comply With Federal Civil Rights Laws. Anti-immigrant laws and
ordinances can establish a tone of intolerance that encourages housing discrimination. In
some instances, implementation of the provisions themselves may violate fair housing
laws, while in other instances, anti-immigrant laws may have an indirect discriminatory
impact. All immigration-related bills, resolutions and proposals should encourage fair
housing and comply with federal civil rights laws that prohibit discrimination based on
national origin.

Housing Providers Must Ensure that their Staff Receive Fair Housing Training.
Landlords, rental agents, housing managers, and others who provide rental housing must
be aware of the fair housing rights of prospective tenants and related responsibilities of
housing providers and their agents. Good training will not just explain the relevant legal
requirements, but will also emphasize why these laws are necessary to ensure equal
access to housing for immigrants.
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
Housing Providers Should Develop Written Materials that Detail Rental Fees, Costs,
and Application Requirements. When landlords or rental agents provide differing
information to prospective tenants, including quoting different rents, or omitting fees,
costs or other requirements, housing providers potentially expose themselves to liability.
Providing basic information in written materials to all prospective tenants ensures that
this critical information is provided equally.

Tenants and Prospective Tenants Should be Aware of their Fair Housing Rights and
be Prepared to Enforce these Rights When They are Violated. An informed public is
best able to promote fair housing and ensure compliance with civil rights laws.
Immigrants and nonimmigrants alike have a responsibility to encourage equal housing
opportunity and should be aware of how to protect their rights and the rights of others.
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