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Fair Housing Enforcement Organizations Use Testing To Expose Discrimination

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Spring/Summer 2014   


        Expanding Opportunity Through Fair Housing Choice
        Paired Testing and the Housing Discrimination Studies
        Fair Housing Enforcement Organizations Use Testing To Expose Discrimination

Fair Housing Enforcement Organizations Use Testing To Expose Discrimination


      • Fair housing enforcement organizations engage in activities that promote housing choice, advocate for antidiscriminatory housing policies, undertake initiatives to build inclusive communities, and provide fair housing training and education.
      • The Metropolitan Milwaukee Fair Housing Council, which performed more than 10,000 tests between 1977 and 2008, has used a variety of testing strategies to draw out recalcitrant landlords in cases where standard paired testing was less effective.
      • The Northwest Fair Housing Alliance, based in Spokane, Washington has used various testing approaches to investigate lending discrimination, predatory lending, and fraudulent mortgage rescue programs.
      • Chicago’s Access Living advocates for and enforces the rights of individuals with disabilities, using testers with disabilities whenever possible.

As overt housing discrimination fades but subtle forms persist, proving violations of fair housing law has become more difficult. Many victims of discrimination encounter deceptive barriers that can be hard to detect, such as false information, neighborhood steering, and the application of different standards.1 As a result, fair housing advocates have turned to testing as the most effective tool to investigate violations of fair housing law and gather litigation quality evidence of discriminatory practices.2 Testing involves covert investigation by testers who pose as housing applicants and document the treatment they receive from housing providers. By comparing the ways different testers are treated, fair housing enforcement organizations (FHOs) are able to demonstrate that a violation of fair housing law has occurred.

FHOs are nonprofit organizations that enforce the Fair Housing Act through investigations. Investigations that include a testing component are more likely to result in favorable outcomes for the victims.3 Although FHOs conduct most of these tests, the U.S. Department of Justice and state and local government agencies also employ testing in fair housing investigations.4

The following discussion examines the implementation of different testing strategies and structures by two FHOs — Metropolitan Milwaukee Fair Housing Council and Northwest Fair Housing Alliance — and a disability rights organization, Access Living of Metropolitan Chicago.

Metropolitan Milwaukee Fair Housing Council

The Milwaukee metropolitan area is among the most segregated in the country; 90 percent of its African American population is concentrated within Milwaukee’s city limits, and the area ranked second nationwide in a 2010 study using a black-white dissimilarity index (for a definition of the index, see “Expanding Opportunity Through Fair Housing Choice”).5 African Americans are known to encounter numerous barriers to fair housing choice, including discriminatory terms and conditions for housing, refusals to rent or sell units, and restrictions on the locations of units.6 Since 1977, the Metropolitan Milwaukee Fair Housing Council (MMFHC) has worked to dismantle these barriers as part of its mission to combat discrimination and promote racially and economically integrated neighborhoods.

Following U.S. v. Wisconsin, a 1975 Supreme Court case that struck down Wisconsin’s ban on testing, 40 citizen activists created MMFHC to challenge the “prevailing patterns of racial and economic segregation and widespread discrimination in the housing market.”7 Today, the organization operates fair housing centers in Milwaukee, Madison, and Appleton, extending its reach to most of the state’s population. Structured as a membership-driven nonprofit, MMFHC provides a range of fair housing services: outreach and education, fair lending and fair housing enforcement, and programs to build inclusive communities.8 Bill Tisdale, president and chief executive officer of MMFHC, says that the most successful antidiscrimination efforts require an interplay of services: enforcement, testing, education, desegregation programs, and technical assistance.9

Fair Housing Enforcement

Between 1977 and 2008, MMFHC handled 6,000 complaints and performed more than 10,000 tests.10 Discrimination based on race and on disability are the most common forms of housing discrimination that the MMFHC investigates. The organization also investigates discrimination based on gender, sex, national origin, age, religion, family status, marital status, sexual orientation, and source of income as well as discrimination against victims of domestic abuse. MMFHC handled 171 complaints in 2012, referring 21 cases to an attorney, the Wisconsin Equal Rights Division (ERD), a Fair Housing Assistance Agency, or HUD.11

The main source of support for MMFHC’s enforcement activities is HUD’s Fair Housing Initiatives Program (FHIP). The organization has received FHIP enforcement grants every year since 2008 and most recently received a $322,629 grant from FHIP for fair housing enforcement and testing. MMFHC also receives funds from state and local governments, philanthropic groups, and court settlements with housing providers accused of discrimination.12

Testing in Complaint - Based Investigations

Kids gather around an equal opportunity board game.
As part of its education and outreach efforts, the Greater New Orleans Fair Housing Action Center developed an equal opportunity board game to teach children about the effects of housing discrimination. Photo courtesy: Greater New Orleans Fair Housing Action Center
Individuals who feel that their fair housing rights have been violated file a complaint with MMFHC, which performs an initial interview to evaluate the evidence and determine whether the complaint is covered by fair housing law. If the complaint has merit, MMFHC performs an investigation that may include testing. The testing coordinator outlines a preliminary testing strategy, but as Carla Wertheim, MMFHC’s executive vice president and testing coordinator, notes, “[E]very investigation is different…as the evidence emerges, you may have to change” course.13 MMFHC serves on the front lines of the housing discrimination battle; by handling client intake and investigating complaints, the organization reduces the burden on public agencies involved in fair housing investigations.14

In 2012, MMFHC handled 54 complaints of housing discrimination based on race.15 This form of discrimination can be difficult for the average person to detect because housing providers can conceal their discriminatory practices by remaining outwardly cordial, even friendly. Fred Freiberg, founding director of MMFHC and current executive director of the Fair Housing Justice Center (FHJC) in New York, likens this discrimination to a revolving door, where people are “courteously escorted in, out of, and ultimately away from the desired housing.”16 One strategy MMFHC uses to uncover discriminatory practices is a paired test, in which equally qualified white and minority testers seek housing and document the results. The strength of the paired test rests on its ability to demonstrate that race was the motivating factor in denying housing (see “Paired Testing and the Housing Discrimination Studies”).17

MMFHC used paired testing in an illustrative investigation of racial discrimination against the owners of Geneva Terrace Apartments in La Crosse, Wisconsin. In 2009, Marcus and Brenda Young, an African American couple, sought a two-bedroom unit at Geneva Terrace based on the recommendation of a white friend and resident. Despite advertisements and signs to the contrary, the Youngs were repeatedly told that no units were available. The Youngs then conducted an informal test: a white friend called the rental office and was told that units were available. Brenda followed up 15 minutes later and was again told that no units were available. With this information, the Youngs contacted MMFHC staff, who then initiated a paired testing investigation. Two pairs of equally qualified white and black testers were sent to inquire about housing at Geneva Terrace. In both tests, the black testers were told that no units were available, whereas the white testers were told of available units. With MMFHC assistance, the Youngs filed a complaint with HUD and the state of Wisconsin’s ERD. Both agencies issued charges, and the case was settled three years after the initial incident of discrimination. The Youngs received $47,500 in damages, and the owners of Geneva Terrace were required to complete fair housing training.18

Samantha Tan, surrounded by her family, holds her poster which was the winning entry in the Fair Housing Council of Oregon sponsored poster contest.
Poster contests like the one Samantha Tan (pictured here with her family) entered help raise awareness about fair housing issues and organizations. Photo courtesy: Fair Housing Council of Oregon
Although the paired testing structure successfully uncovered evidence of discrimination in the Geneva Terrace investigation, this method may be less successful when landlords block testers from viewing units because it is difficult to obtain a comparison. Some landlords make excuses for not showing an apartment when speaking on the phone with someone who has a voice identifiable as African American or Hispanic. Other landlords may skip a scheduled appointment when they see that the applicant is a member of a minority group.19 In a recent case that MMFHC investigated, an African American family made repeated attempts to see an apartment, but each time they arrived for the viewing, the landlord was not present. Without an interaction between the applicant and the landlord, Tisdale explains, proving that the landlord’s actions are discriminatory can be difficult.20 To force a meeting, the organization used a decoy test.

To initiate the decoy test, a white tester scheduled an appointment with the landlord. As the landlord and white tester were leaving the unit, the minority tester intercepted them, preventing the landlord from evading a viewing with the minority tester. The decoy test forced the landlord to meet with the minority tester, creating the opportunity to collect evidence of discriminatory practices. The landlord lied to the black tester, claiming that the white tester had reserved the apartment when the tester actually had turned it down. A second white tester viewed the unit after the black tester and confirmed that it was available to rent — evidence that the black tester had been given false information. The landlord also made disparaging statements about the black tester to the first white tester, all of which was recorded — a practice that is legal in Wisconsin.21

Systemic Testing Investigations

In his testimony before the Commission on Fair Housing and Equal Opportunity, Tisdale states that “institutional discrimination occurring on a systemic basis must be combated holistically and proactively. It’s not enough to simply decapitate one of the hydra’s heads — the beast of housing discrimination must be struck at its heart.”22 Relying on complaint-based investigations may bring relief to a single victim, but it misses the vast swath of discrimination occurring in the housing market.23 Institutionalized forms of discrimination, argues Tisdale, lack indicators and identifiers that would enable victims to realize that they have been victimized. Systemic investigations, on the other hand, proactively test housing discrimination in the marketplace in an attempt to change the policies or practices of a large housing provider or the behavior of many smaller housing providers. Between 1990 and 2008, MMFHC helped litigate 16 cases of systemic discrimination, including a multistate investigation into insurance redlining.24

In the mid-1990s, MMFHC joined the National Fair Housing Alliance and FHOs in several other states to investigate redlining in the homeowner’s insurance market. Redlining is the practice of denying mortgages or insurance to an entire geographic area. In this investigation, the coalition of FHOs sought to determine whether minority households and households in minority neighborhoods had the same access to homeowner’s insurance as their white counterparts. Through repeated paired testing of insurance providers’ policies and practices, the FHOs gathered sufficient evidence to generate HUD complaints against Allstate, State Farm, and National Mutual Insurance in 1994 and Travelers, Aetna, Prudential, and Liberty Mutual in 1997.25 In the Milwaukee market, MMFHC tested and found evidence of disparate treatment of minorities, including higher premiums for minorities for similar coverage, better policies in nonminority neighborhoods, and different standards for accepting loan applications.26

For the 1997 collection of complaints, MMFHC recruited and trained 33 new testing volunteers to specialize in the investigation of discriminatory barriers to homeownership. In addition to matching the financial characteristics of the volunteers, MMFHC matched the characteristics of the tested homes — structure, age, and size — to compare how the companies treated white and nonwhite neighborhoods. In one example, a black tester was told that homes that were more than 30 years old were not covered, whereas the paired white tester was offered quotes. As a result of the HUD complaints, Allstate, State Farm, and National Mutual Insurance modified their underwriting guidelines to remove restrictions on a house’s maximum age and value. State Farm and Allstate also agreed to stop using credit reports as the sole basis for rejecting applications, and all three agreed to open service centers in urban areas.27

Testing evidence in systemic investigations can be improved with geographic information system (GIS) mapping techniques and other data that help FHOs allocate testing resources more effectively. The insurance cases, for example, came about in part after a spatial analysis of policyholder data by University of Wisconsin researchers in 1987 and 1991 uncovered statistically significant evidence of insurance redlining in the Milwaukee metropolitan area.28 Freiberg argues that judicious use of demographic data can improve the efficiency of fair housing enforcement by enabling the more strategic use of testing resources. FHJC, for example, uses a GIS mapping tool to identify areas that the data suggest are likely to yield evidence of discrimination. By targeting its resources in these “areas of interest,” FHJC can more effectively document and eliminate illegal housing discrimination, change discriminatory behavior, and open up communities.29

Northwest Fair Housing Alliance

A table top display by the Northwest Fair Housing Alliance showing brochures, flyers, and other fair housing materials.
To further its fair housing education and outreach objectives, the Northwest Fair Housing Alliance regularly attends community events such as the Unity In the Community event seen here. Photo courtesy: Northwest Fair Housing Alliance
Homeownership opportunities are limited not only by insurance redlining but also by lending discrimination, which includes redlining, unequal access to credit, and predatory lending. These unfair lending practices restrict housing and neighborhood choice for minority groups and weaken the financial health of households and communities. In addition, the complexity of the lending process obscures discrimination, which decreases the likelihood that a complainant will come forward to initiate an investigation. This form of housing market discrimination lends itself to proactive and systemic investigation. Because some lenders span several states, settlement agreements that remove a discriminatory practice impact a large geographic area. The proactive aspect is aided by the extensive data lenders are required to provide under the Home Mortgage Disclosure Act (HMDA). These data, although typically insufficient to prove discrimination, do provide information that can focus a testing investigation.30 The Northwest Fair Housing Alliance (NWFHA), based in Spokane, Washington, has developed a fair lending enforcement program that uses HMDA data, census data, and market reports to investigate lending institutions that violate fair housing law.

NWFHA first received FHIP funding for its fair lending program in 2009, but the organization has implemented lending investigations since its founding in 1994. The fair lending enforcement program covers eastern Washington, and the organization provides training for lenders throughout the state. In 2011, NWFHA received a FHIP capacity building grant that enabled it to hire a fair lending investigator, complete more fair lending tests, and update its fair lending program, the Eastern Washington Fair Lending Awareness Project.31

After receiving the capacity building grant, NWFHA recruited 16 testers, primarily from the organization’s existing rental and sales testing programs, to do fair lending testing.32 Although the basic testing structures for fair lending investigations are similar to those for fair housing investigations, lending transactions are more complex than transactions in rental or sales investigations. The lending process involves myriad products — subprime loans, adjustable rate mortgages, balloon mortgages, conventional loans, and FHA-insured loans, among others — and the applicability of each product depends on numerous factors such as credit score, income, down payment size, and loan amount.33 NWFHA’s testers, therefore, received extensive training on the lending process and what to expect from lenders, including the terminology used, the questions asked, and the products offered.34

The testers were deployed to investigate predatory behavior among lenders and mortgage rescue companies.35 During the housing bubble and subsequent crash, FHOs shifted their investigations toward identifying practices that take advantage of vulnerable homebuyers.36 The fair lending investigations at NWFHA began with an analysis of HMDA and census data, coupled with market research, to identify potential subjects for investigation. The analysis focuses on disparities in a subject’s loan originations and denials, history of service in minority communities, and location of loans offered. For these investigations, the organization typically uses two types of tests: single or paired.

Map shows African American renter households as a percentage of total renter occupied units in Brooklyn, New York.
FHJC uses a mapping tool to analyze demographic data and enable strategic deployment of testing resources. Photo courtesy: Fred Freiberg, Fair Housing Justice Center
NWFHA uses single-person testing to uncover evidence of fraud or abuse in mortgage rescue programs. Mortgage rescue scams attempt to cheat homeowners by making undeliverable promises or demanding substantial payments up front. In an 18-month FHIP grant period from November 2011 to May 2013, the organization conducted 47 phone tests of mortgage rescue companies. NWFHA’s testers contacted loan modification companies while posing as homeowners seeking to restructure their loans. The testers compared the companies’ modification policies and marketing practices to the Mortgage Assistance Relief Services Rule and Washington state lending law to determine whether the companies complied with required disclaimers, permissible fee structures, and representation outcomes. Once NWFHA identified companies with illegal policies (14 as of 2014), it sent the evidence to the Washington Department of Financial Institutions, which pursued enforcement action.37

In paired testing investigations, NWFHA determines whether the types of services or products lenders offer to minority applicants differ from those offered to nonminority applicants. The organization builds tester profiles so that the applicants are matched with similar credit scores, incomes, and occupations. Jessica Schultz-Leyk, NWFHA’s fair lending investigator, adds that one of the most important paired characteristics is the loan-to-value ratio for the applicant’s loan, because lenders often base prices and products on this ratio.38

As part of the FHIP grant, NWFHA completed 55 paired, onsite lending tests of 32 lending originators.39 These onsite tests were used to determine whether both minority and nonminority testers were offered similar rates and fees and similar levels of coaching on improving the appearance of the application. Paired tests also uncover evidence of racial steering toward different loan products, such as FHA loans.40 Minority applicants, Schultz-Leyk explains, sometimes are provided information about FHA loans at greater rates than conventional loans, which limit an applicant’s housing choices.41 FHA loans come with greater restrictions on their use and have slightly higher fees because they require borrowers to carry mortgage insurance.42

Following an initial test, NWFHA staffers review the evidence to determine whether follow-up tests are needed. Marley Hochendoner, executive director of NWFHA, describes testing as an “ongoing discussion” among the testing coordinator, director, and fair lending investigator to determine the next course of action. The organization often retests if there are significant disparities in the treatment received by minority and nonminority testers. The retests help cement the evidence of discriminatory treatment by demonstrating that the disparate level of service the testers received was not an isolated incident. At the conclusion of the grant, NWFHA submitted nine cases to HUD, one based on onsite testing and eight based on email testing. Three additional cases showed possible discrimination but required further testing.43

Challenges to Fair Lending Testing

Photo shows HUD Secretary Shaun Donovan chatting with Steve Brady and Fred Freiberg.
Steve Brady (center), pictured here with HUD Secretary Shaun Donovan (left) and Fred Freiberg (right), enlisted the services of FHJC, which conducted a testing investigation that found evidence of housing discrimination.
Many of the challenges NWFHA faced during fair lending tests relate to the spatial and temporal scale of its operation. As the only FHO in eastern Washington, NWFHA’s territory is enormous: about half of the state. Despite this geographic hurdle, NWFHA distributes its tests as evenly as possible. Another challenge is the significant amount of time testers must devote to each test. Unlike a rental test, which may be completed quickly, lending interviews involve a number of complex financial components, even at the preapplication stage. To stay covert and remain credible to lenders, testers must be knowledgeable about the entire lending process.44 Furthermore, says Schultz-Leyk, during that process testers are required to take detailed notes on the range of financial information asked and services offered by each lender, which will be used as evidence in follow-up reports.45 Lending testers must be particularly dedicated and competent or the evidence they collect will be insufficient.

When these investigations reveal evidence of discrimination in lending, NWFHA seeks to include fair lending training and education in the conciliatory agreements. Unlike its fair housing investigations, NWFHA’s fair lending investigations rarely have a complainant, so the organization seeks smaller monetary damage awards. Although NWFHA does receive compensation for its testing expenses, fair lending testing has more flexibility to proactively push for systemic changes in companies’ policies.46

Access Living of Metropolitan Chicago

For decades individuals with disabilities had been isolated in institutions or otherwise blocked in their efforts to secure housing in the private market. Before the Fair Housing Act was amended in 1988 to add disability as a protected class, people could legally be denied housing simply for having a physical or mental disability. In 1980, Access Living of Metropolitan Chicago, an organization staffed largely by people with disabilities, formed to remove the barriers to independent living that people with disabilities face. After the 1988 amendments passed, these efforts have included enforcing housing discrimination laws. The most common form of housing discrimination complaint received by the Illinois Department of Human Rights is against those with physical or mental disabilities.47 According to Marca Bristo, president and chief executive officer of Access Living, housing discrimination against individuals with disabilities is particularly pernicious because of the shortage of suitable housing. As Bristo explains, for individuals with disabilities, finding housing that is available, affordable (especially for those who are unable to work or receive some type of assistance), and accessible can be difficult.48

Access Living is one of the few Centers for Independent Living that engages in fair housing enforcement and one of the few FHIP grantees housed within a disability rights organization.49 This combination puts the organization in an ideal position to investigate housing discrimination based on disability, which differs from other types of discrimination. As Ken Walden, a fair housing attorney with Access Living, explains, provisions for race, family status, and other protected classes tend to focus on “thou shall not” requirements, whereas disability protections involve a “thou shall” component, necessitating a different set of strategies and use of testers.50 Therefore, Access Living’s fair housing enforcement targets not only discriminatory actions, such as obfuscating a rental search, but also the affirmative requirement that the physical units are accessible to people with visual, auditory, or mobility impairments.

Enforcing the Rights of Individuals With Disabilities

Woman in wheelchair opening the door to a multifamily building.
Multifamily buildings with entrances opening directly onto the sidewalk are accessible to individuals using assistive devices, such as wheelchairs. These types of measures, when incorporated during the design and construction stage, cost less than retrofitting. Photo courtesy: Access Living of Metropolitan Chicago
If a landlord’s policy clearly violates fair housing law, Access Living helps the complainant file and pursue a complaint. Access Living recently helped a woman in a wheelchair settle a dispute with her condominium association over an accessible parking spot. The association refused the woman’s request for an accessible spot, removed an existing accessible spot, and publicly insulted her. In many cases, Access Living’s lawyers and staff act on behalf of individuals to bring about an acceptable resolution with the property owners or managers. In this case, Access Living negotiated a settlement that included an accessible parking spot and required that the condominium association complete fair housing training and adopt a policy of providing reasonable accommodations and modifications for individuals with disabilities.51

In housing discrimination cases without overt evidence, Access Living uses testing to enforce antidiscrimination laws. With a 3-year, $325,000 FHIP enforcement grant, Access Living is able to complete about 70 tests a year.52 The main type of test Access Living implements is a paired test using testers with and without a disability. As with testing for other protected classes, the testers are matched along meaningful characteristics: race, income, age, and gender.53

When Access Living’s testers implement tests in the field, they encounter a distinct set of obstacles associated with accessing the site. For example, in a case Access Living investigated in 2005, stairs prevented a tester in a wheelchair from entering the building through either the front or back door. The tester could access the building only by rolling his wheelchair down the parking garage ramp.54 Also, some apartment buildings are inaccessible to individuals with visual impairments, and deaf individuals sometimes have difficulty entering buildings that rely on intercom systems.55

Housing applicants who are deaf also confront obstacles accessing information about apartments when they use a Telecommunications Relay Service (TRS). Relay systems use an operator as an intermediary to facilitate communication between a deaf individual and the person they are calling.56 Investigations into discrimination against people who are deaf or hard of hearing often focus on the refusal of some housing providers to use a message relay system. According to Jamie Wichman, testing coordinator for Access Living, many landlords hang up on testers or refuse to return phone calls placed through a TRS system. Wichman recalls a landlord in one case eventually told the tester, “I don’t have time for this,” and hung up the phone. In another case, a deaf tester was denied an apartment after being told that the building was not set up to accommodate “handicapped people.” Multiple calls are sometimes necessary to collect evidence proving that the landlord is refusing to speak with a deaf tester because of his or her disability and not because of another, nondiscriminatory reason. A single dropped phone call, for example, may only be proof of a poor connection. Testing investigations, Freiberg contends, must always consider how the evidence will stand in court.57

Once inside the building, Access Living’s testers investigate its design and accessibility issues.58 The 1988 amendments to the Fair Housing Act state that buildings built after 1991 that have four or more units must accommodate individuals in wheelchairs. If the building has an elevator, then all of its units need to be accessible. Otherwise, only ground-floor units must be accessible. Access Living sends testers with and without disabilities to investigate complaints against housing providers and architects who fail to design and construct buildings that adhere to the provisions of the 1988 amendments and the Americans With Disabilities Act.59

For example, Access Living was hired by the Illinois Department of Human Rights in 2007 to test 914 W. Hubbard Inc. for accessibility. The organization dispatched a tester using a 24-inch wheelchair. The tester was unable to access various areas of the four units he tested. The doorway to the master bedroom was too narrow on two units and formed a sharp angle with the hallway, making turning difficult. In three units, the tester found that the kitchen was unusable because of inadequate floor space for maneuvering or turning. He also noticed that the electrical boxes were mounted too high on the wall to be accessible to someone in a wheelchair. In a comparison test, a tester without a wheelchair had no difficulty accessing the four units. After a HUD investigation, the parties entered into a consent agreement that included training and $20,000 in monetary relief.60

A chairlift installed along a flight of stairs inside a building.
Access Living and pro bono counsel Katten Muchin Rosenman helped secure necessary approvals under the Fair Housing Act to install the lift above. Photo courtesy: Yolanda Wright
Bristo, who uses a wheelchair, says that wheelchair testers are often able to detect subtle design issues simply by interacting with the space.61 In Illinois, for example, most ramps are not allowed to have a slope exceeding a 1:12 ratio.62 A wheelchair user intuitively knows the feeling of a compliant ramp and can immediately recognize a slope that is too steep. In most cases, Access Living prefers to use individuals with disabilities instead of proxy testers — nondisabled individuals who present themselves as having a disability or individuals who inquire into housing on behalf of a relative with a disability.63 Proxy testers, says Bristo, cannot engage with a space in the same way as a person with a disability. Because such testers may overlook a potentially discriminatory issue, she cautions against their use.64

One possible use of proxy testers may be in investigations into housing discrimination against individuals with mental disabilities. For paired testing to work properly, testers need to casually signal to the housing provider that they possess the disability being tested. Because mental disabilities are often invisible, testers may have difficulty disclosing their disabilities in a way that does not tip off the housing provider that a fair housing test is underway.65 Although some FHOs address this challenge by using proxy testers who claim to be seeking housing on behalf of a friend or relative with a mental disability, Access Living believes that using proxies is inconsistent with its philosophy that people with disabilities should be at the forefront of efforts to combat discrimination. Bristo feels that using proxies reinforces the negative stereotype that individuals with disabilities are unable to function independently in everyday society.66

Benefits of Fair Housing and Disability Advocacy

By straddling the worlds of fair housing and disability advocacy, Access Living is able to enforce antidiscrimination laws while maintaining fidelity to its core mission. Because it is a disability rights organization staffed largely by individuals with disabilities, Access Living understands the needs of the disabled community, speaks the same language, and is fully comfortable working with testers with disabilities. These advantages allow Access Living to draw on creative solutions from the disabled community. For example, Access Living is working to have accessible design added to Chicago’s building code to eliminate the potential for certain fair housing violations before construction even begins.67

Access Living’s unique position also comes with unique responsibilities when implementing testing. As a disability rights organization, Access Living believes that it is obligated to employ persons with disabilities whenever possible. Therefore, Walden states, Access Living must provide reasonable accommodations to its testers to complete their jobs. For example, individuals with visual impairments may need forms that work well with screen readers to complete their tests. People with limited use of their hands may need a dictation service to complete their test reports. A deaf tester may need a sign language interpreter to communicate with a landlord or agent.68

In its multifaceted effort to expand the housing options available to individuals with disabilities, Access Living uses testing evidence to address wider change. Providing redress for a single victim of discrimination is beneficial, but when appropriate, Access Living also looks to further its mission by modifying the habits of housing providers. Accomplishing this goal means that testing evidence is not always used to file a complaint. Instead, in specific, limited situations, Access Living may opt for training when the evidence warrants it, pushing housing providers to voluntarily correct their policies to create systematic change.69


A mother and daughter pose in front of a home.
Fair housing organizations work to ensure that families with children are not excluded from the home of their choice.
In Milwaukee, Spokane, and Chicago, housing discrimination takes many different forms, necessitating a unique approach to each testing investigation. Wertheim and Freiberg emphasize the need to remain flexible and embrace a variety of testing structures customized for a specific investigation. By shrewdly applying different testing structures, MMFHC, NWFHA, and Access Living are able to provide redress to victims of discrimination. Although the paired test remains the staple investigative method, MMFHC was also successful at using decoy testers to draw out a recalcitrant landlord in Milwaukee. In eastern Washington, NWFHA used single-person tests to effectively identify mortgage rescue scams. These different testing structures are enhanced, Hochendoner and Freiberg have observed, when the investigation incorporates available data sources. HMDA lending data allowed NWFHA to target lenders with the poorest records of serving members of protected classes. Demographic data, when used in conjunction with testing, focused FHJC’s investigation on the most afflicted parts of its service area, stretching scarce enforcement dollars and increasing the efficiency of its operation.

Training is fundamental because, as Freiberg notes, all testers are also potential witnesses. If a testing case goes to trial, the credibility and objectivity of the testers will be scrutinized just as they are for other fact witnesses. MMFHC, NWFHA, and Access Living equip their testers to objectively document appropriate evidence during investigations. Using the person most suited to a specific situation is also important. Access Living has learned that individuals with disabilities collect the best evidence during disability discrimination cases because of their intuitive knowledge.

Tisdale and Freiberg argue that testing is most effective when it is implemented as a part of an investigation that is proactively initiated and systemic in scope and remedies. These experts believe that the current complaint-based enforcement paradigm misses most discrimination occurring in the housing market. Many victims are unaware of subtle forms of discrimination, resulting in neither a complaint nor an investigation. Only by proactively investigating discrimination, say Tisdale and Freiberg, can FHOs tackle the problem holistically and curtail widespread abuses. When FHOs work in concert, as MMFHC did with several FHOs to investigate insurance redlining, testing can be used to change the behavior of housing providers, expanding housing choice for all.

  1. Fred Freiberg. 2009. "A Test of Our Fairness," The Urban Lawyer 41:2, 242–3.
  2. John Obee. 2009. "The Importance of Testing Evidence in Housing Discrimination Sales Transactions: Two Case Studies," Urban Lawyer 41:2, 309.
  3. Liam Garland. 2009. "Reflections on Housing Rights Center v Krug," The Urban Lawyer 41:2, 249; Kenneth Temkin, Tracy McCracken, and Veralee Liban. 2011. "Study of the Fair Housing Initiatives Program," U.S. Department of Housing and Urban Development, 53, 57.
  4. "Fair Housing Testing Program, U.S. Department of Justice website ( Accessed 21 April 2014. Examples of local testing programs include the city of Alexandria, Virginia and Seattle, Washington. Iowa and Delaware are two states that utilize testing to uncover discrimination.
  5. Joel Rast. 2010. "The Economic State of Milwaukee, 1990–2008," The Center for Economic Development at the University of Wisconsin – Milwaukee; John R. Logan and Brian J. Stults. 2011. "The Persistence of Segregation in the Metropolis: New Findings from the 2010 Census," Census Brief prepared for Project US2010, 6.
  6. Southeastern Wisconsin Regional Planning Commission. 2013. "A Regional Housing Plan for Southeastern Wisconsin: 2035," 330–3.
  7. United States v, State of Wisconsin. 1975. 395 F.Supp. 732; "Mission and History," Metropolitan Milwaukee Fair Housing Council website ( Accessed 21 April 2014.
  8. "Program and Service," Metropolitan Milwaukee Fair Housing Council website ( Accessed 21 April 2014.
  9. William Tisdale. 1999. "Fair Housing Strategies for the Future: A Balanced Approach," Cityscape: A Journal of Policy Development and Research 4:3, 149.
  10. William Tisdale. 2008. "Still Separate and Unequal: The State of Fair Housing in America," Testimony before the National Commission on Fair Housing Council and Equal Opportunity, 15 July.
  11. Metropolitan Milwaukee Fair Housing Council. 2012. "Annual Report 2012;" "Fair Housing Rights," Metropolitan Milwaukee Fair Housing Council website ( Accessed 21 April 2014.
  12. U.S. Department of Housing and Urban Development. 2013. "HUD Awards Nearly $600,000 To Wisconsin to Fight Housing Discrimination," 25 September press release; Metropolitan Milwaukee Fair Housing Council 2012.
  13. Interview with Carla Wertheim, 10 April 2014.
  14. Temkin et al., xi, 53.
  15. Metropolitan Milwaukee Fair Housing Council, Annual Report 2012, 4–5.
  16. Interview with Fred Freiberg.
  17. Avern Cohn. 2009. "Fair Housing Testing," The Urban Lawyer 41:2, 274.
  18. Metropolitan Milwaukee Fair Housing Council 2012; United States of America v Geneva Terrace Apartments, Inc. et al. 2012. 3:11-cv-00734-; United States of America v Geneva Terrace Apartments, Inc. et al. 2012. 3:11-cv-00734-wmc; U.S. Department of Justice. 2012. "Justice Department Settles Lawsuit Against Wisconsin Landlord and Former Manager for Discriminating on the Basis of Race," 29 November press release.
  19. National Fair Housing Alliance. 2009. "Fair Housing Enforcement: Time for a Change," 16–7; Interview with Fred Freiberg.
  20. Interview with William Tisdale, 10 April 2014.
  21. Ibid; Interview with Fred Freiberg; Interview with Carla Wertheim.
  22. Tisdale 2008.
  23. Olatunde Johnson. 2011. "The Last Plank: Rethinking Public and Private Power to Advance Fair Housing," University of Pennsylvania Journal of Constitutional Law 13:5, 1195, 1201–2; Freiberg 2009, 242; Robert Mark Silverman and Kelly L. Patterson. 2012. "The Four Horsemen of the Fair Housing Apocalypse: A Critique of Fair Housing Policy in the USA," Critical Sociology 38:1, 125; Garland, 249.
  24. Interview with William Tisdale; Tisdale 2008.
  25. Tisdale 2008; William Tisdale and Carla Wertheim. 2003. "Giving Back to the Future: Citizen Involvement and Community Stabilization in Milwaukee," in Gregory Squires, ed., Organization Access to Credit: Advocacy And The Democratization, Philadelphia: Temple University Press, 45–8.
  26. Gregory Squires, Sally O'Connor, and Josh Silver. 2000. "The Unavailability of Information on Insurance Unavailability: Insurance Redlining and the Absence of Geocoded Disclosure Data," Annie E Casey Foundation, 7–9.
  27. Tisdale and Wertheim, 47–8; Squires et al., 9–10.
  28. Carla Wertheim. 1994. "Availability of insurance in Milwaukee, Wisconsin: field hearing before the Subcommittee on Consumer Credit and Insurance of the Committee on Banking, Finance, and Urban Affairs, House of Representatives," 4 January.
  29. Interview with Fred Freiberg; Fair Housing Justice Center. 2012. "Creating Places Where All Are Welcome: A Progress Report," 5.
  30. Daniel Lindsey, Diane E. Thompson, Alys Cohen, and Odette Williamson. 2012. "Why Responsible Mortgage Lending Is a Fair Housing Issue," National Consumer Law Center, 7; Robert G. Schwemm and Jeffrey L. Taren. 2005. "Discretionary Pricing, Mortgage Discrimination, and the Fair Housing Act," Harvard Civil Rights-Civil Liberties Law Review 45, 386–7, 418; National Fair Housing Alliance 2013, 33.
  31. Interview with Marley Hochendoner, 15 April 2014; Northwest Fair Housing Alliance. 2011. "Northwest Fair Housing Alliance Awarded 18-month $325,000 U.S. Dept. of HUD Fair Housing Organization Initiative (FHOI) Mortgage Rescue Component (MRC) Grant." 5 October press release.
  32. Interview with Marley Hochendoner. Northwest Fair Housing Alliance 2013.
  33. Margery Austin Turner, Fred Freiberg, Erin Godfrey, Carla Herbig, Diane K. Levy, and Robin R. Smith. 2002. "All Other Things Being Equal: A Paired Testing Study of Mortgage Lending Institutions," 4, 38; Lindsey et al., 7–9; Margery Austin Turner and Felicity Skidmore. 1999. "Introduction, Summary, and Recommendations" in Mortgage Lending Discrimination: A Review of Existing Evidence Lending Discrimination, The Urban Institute, 17, 31–3.
  34. Interview with Jessica Schultz-Seyk, 10 April 2014.
  35. Northwest Fair Housing Alliance 2013.
  36. William C. Apgar and Allegra Calder. 2005. "The Dual Mortgage Market: The Persistence of Discrimination in Mortgage Lending," in Xavier de Souza Briggs, ed., The Geography of Opportunity: Race and Housing Choice in Metropolitan America, 1, 2.
  37. Northwest Fair Housing Alliance 2013; Interview with Jessica Schultz-Leyk.
  38. Interview with Jessica Schultz-Leyk.
  39. Northwest Fair Housing Alliance 2013.
  40. Turner et al. 2002, 34–6, 9.
  41. Interview with Jessica Schultz-Leyk.
  42. Turner et al. 2002, 34–6, 9; Apgar and Calder, 9.
  43. Interview with Marley Hochendoner; Interview with Jessica Schultz-Leyk.
  44. Turner and Skidmore, 17, 33.
  45. Interview with Marley Hochendoner.
  46. Ibid.
  47. Illinois Department of Human Rights. 2013. "2012 Annual Report," 24.
  48. Interview with Marca Bristo, 9 April 2014.
  49. From 2008–2011, discrimination based on disability was the most commonly filed complaint with HUD and FHAPs, see U. S. Department of Housing and Urban Development. 2011. "Annual Report on Fair Housing: Fiscal Year 2011," 19; Access Living of Metropolitan Chicago. "Civil Rights and Legal Work." Access Living was the only Center for Independent Living to receive FHIP funding in 2012. U.S. Department of Housing and Urban Development. 2012. "FY 2012 FHIP Award Blurbs."
  50. Interview with Ken Walden, 10 April 2014.
  51. Access Living of Metropolitan Chicago. 2013. "Removing Barriers: Access Living 2013 Annual Report;" Access Living of Metropolitan Chicago. 2011. "Access Living's Fair Housing Work," 7 September press release.
  52. Access Living of Metropolitan Chicago. 2002. "Housing Rights Of People With Disabilities," 12 and "Fair Housing Coordinator pursues her passion for social justice," 26 April 2013. U.S. Department of Housing and Urban Development. 2012. "FY 2012 FHIP Award Blurbs."
  53. Interview with Jamie Wichman, 10 April 2014; Access Living of Metropolitan Chicago. 2013. "Fair Housing Coordinator pursues her passion for social justice."
  54. Access Living of Metropolitan Chicago v Zuric Development Inc, et al. 2006. 1:06-cv-05660 Complaint.
  55. Margery Austin Turner, Carla Herbig, Deborah Kaye, Julie Fenderson, and Diane Levy. 2005. Discrimination Against Persons with Disabilities: Barriers at Every Step, U.S. Department of Housing and Urban Development, 9–11.
  56. Interview with Ken Walden; "What's a TTY? What's a TDD? What's a relay system?" Gallaudet University website ( Accessed 21 April 2014.
  57. Interview with Jamie Wichman; Interview with Fred Freiberg; Sara Pratt, Carla Herbig, Diane Levy, Julie Fenderson, and Margery Austin Turner. 2005. "Discrimination Against Persons with Disabilities: Testing Guidance for Practitioners," U.S. Department of Housing and Urban Development.
  58. Access Living if Metropolitan Chicago. 2011. "Access Living's Fair Housing Work." 7 September press release.
  59. Access Living of Metropolitan Chicago. 2007. "Housing Discrimination Against People with Disabilities Legal Outline."
  60. United States Department of Housing and Urban Development v Hector Castillo Architects Inc. et al. 2008. 05-09-0142-8 Charge of Discrimination; U.S. Department of Housing and Urban Development. 2011. "Annual Report on Fair Housing: Fiscal Year 2011."
  61. Interview with Marca Bristo.
  62. State of Illinois Capital Development Board. 1997. "Illinois Accessibility Code," 37.
  63. Interview with Marca Bristo; Pratt et al., 22.
  64. Interview with Marca Bristo.
  65. Pratt et al., 23; Turner et al. 2005, 8.
  66. Interview with Marca Bristo.
  67. Interview with Ken Walden.
  68. Ibid; Pratt et al., 38.
  69. Interview with Ken Walden.


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