|
SECTION IV
Enforcement of the Provisions of the Fair Housing
Act
A. Introduction
At the request of the NCD, HUD supplied data concerning
Title VIII (Fair Housing Act) complaints received by the agency
and by state and local FHAPs. From this information, this report
draws a number of general conclusions about HUD and FHAP processing
of complaints, but also takes a closer look at how complaints of
disability discrimination are handled as compared to other claims.
The efficacy of HUD's enforcement of the FHA can be
measured in a number of ways. This section analyzes quantitative
data concerning FHA complaints filed between FY 1989 and FY 2000
(the last year for which complete data are available). Five distinct
subsections look at the data in different ways:
- The Complaint Intake subsection considers the raw
number of complaints filed with HUD and with state and local fair
housing enforcement agencies during the 12-year period.
- The subsection on Case Outcomes documents the way
in which fair housing complaints are processed and provides details
about how cases are closed. Specific attention is given to the
number of cases closed by conciliation and by findings of "cause"
and "no cause" to believe discrimination has occurred.
- The Case Processing Times subsection compares the
actual experience of fair housing complainants with specific time
benchmarks crafted by Congress when it passed the FHAA.
- A fourth subsection, dealing with monetary compensation,
analyzes the monetary damages made available through conciliation
of FHA complaints.
- A final subsection reviews the use of Secretary-initiated
complaints and hearings before HUD administrative law judges in
an effort to measure whether HUD has used the tools made available
to it in the FHAA.
The use of these quantitative benchmarks, and the
annual snapshots conveyed by the data, make possible an assessment
of HUD's enforcement of the FHA over the past 12 years. Findings
and recommendations derived from this data are provided throughout
the body of this report and summarized in Section II.
This report evaluates the trends in enforcement activity
overall and compares the handling of disability complaints to others
based on race, color, religion, national origin, sex, and familial
status. The report also analyzes regional differences among HUD
enforcement offices and among FHAP agencies.
B. Complaint Intake
1. The Growth (or Stagnation) of Disability Complaints
The number of housing discrimination complaints filed
with HUD and FHAP agencies has grown fairly steadily since passage
of the FHAA (See Chart IV-1).
[D]
Given the clear evidence that housing discrimination
is widespread,80
it is surprising that complaints of housing discrimination have
barely exceeded 11,000 nationally in any year since 1988.
Finding IV.B.1: The number of discrimination allegations
filed with HUD and state and local fair housing enforcement agencies
is very low, given statistical and anecdotal evidence that housing
discrimination is widespread.
Historically, FHAP agencies have handled roughly 40
percent of the fair housing cases filed (see Chart IV-2).
[D]
2. HUD Has Complicated Its Reporting by Creating a
New Category
HUD's case intake procedure (and the raw numbers in
Charts IV-1 and IV-2) must be further explained. Prior to FY 1996,
HUD accepted complaints of housing discrimination and investigated
all of them. Beginning in FY 1996, HUD adopted a new approach, under
which allegations of discrimination filed with the agency typically
were considered "claims," which were assessed to determine whether
they were likely to constitute valid complaints. Between FY 1996
and FY 2000, the vast majority (roughly 75 percent) of these claims
were closed without full investigation.81
HUD, however, continued to report these claims to Congress and to
the public as part of its workload.
Finding IV.B.2.a: Three-quarters of all claims (4,210
of 5,924 in FY 2000) are dismissed without being converted to complaints
and therefore are not subjected to full investigation.
The difference between a claim and a complaint is
outlined in Table IV-1.
Table IV-1: Characteristics of "Claims" and "Complaints"
|
Claim |
Complaint |
Definition |
An allegation of housing discrimination
filed with HUD that must undergo preliminary investigation involving
only the complainant and independent sources of information.
A claim will be converted to a complaint if this investigation
establishes four "jurisdictional elements":
- It was filed within one year of the alleged
discriminatory act.
- The complainant has been or is about to be
harmed by a discriminatory act.
- The dwelling and respondent in question are
covered by the FHA.
- The discrimination complained of is prohibited
under the FHA.
|
An allegation of discrimination filed with HUD
or an FHAP that contains all four jurisdictional elements.82 |
Processing Time |
HUD established processing benchmarks that require
claims to be assessed within 25 days, which did not count toward
the 100 days in which HUD must complete investigations on complaints. |
By statute, agency must complete investigation
within 100 days after filing "unless it is impracticable to
do so." |
Disposition |
If a claim fails to meet any of the four jurisdictional
elements, or if the complainant or respondent cannot be found,
it will be closed. |
Following investigation, agency determines whether
there is cause to believe discrimination has occurred. |
Period of Use |
FY 1996 through FY 2000 |
1968 through present |
On first examination, HUD's caseload appears to have
stayed relatively level since FY 1991, but it is the growth of "claims"
filed with HUD that has accounted for continued growth in HUD receipts.
By this method, HUD was able to report an increasing caseload even
as the absolute number of cases it was actually investigating dropped
dramatically.
Complaints filed with the agency have declined from
a high of 6,214 in FY 1993 (prior to HUD's adoption of the claim/complaint
dichotomy) to 784 in FY 1996 (the first full fiscal year during
which "claims" were accepted) to 274 in FY 2000 (see Chart IV-3).
[D]
Finding IV.B.2.b: From FY 1996 through FY 2000,
HUD reported both complaints and claims (whether dismissed or maturing
into complaints) to Congress and the public. It is only through
creative arithmetic that HUD has made it appear that fair housing
receipts have not declined.
Recommendation IV.B.2.a: In reporting to Congress and
the public, HUD should be required to distinguish between fair housing
complaints and other receipts, such as claims or inquiries, so that
a fair assessment of the agency's success can be made.
The dichotomy between claims and complaints can be
confusing. It is more instructive to review the number of cases
subjected to full-fledged investigation. After reaching a high of
6,578 in FY 1992, total HUD complaints investigated in FY 2000 fell
to 1,988, or 30 percent of the FY 1992 level (see Chart IV-4).
After reviewing a draft of this report, HUD suggested
that such a head-to-head comparison of complaints was not fair,
because the agency had changed the criteria for what constituted
a complaint. In essence, HUD said that cases that never got past
the claims stage between FY 1996 and FY 2000 were cases it would
previously have counted as complaints but that were closed administratively.
There are two flaws in that logic, however. First, since FY 1994,
administrative closures have not exceeded 29 percent (see Appendix
IV-3), and have never approached the 75 percent rate at which claims
have been closed (See Appendix IV-1). Second, the percentage of
administrative closures of matured complaints remained between 15
percent and 21 percent throughout the five fiscal years HUD employed
the claims process, demonstrating that the creation of the claims
category did not significantly affect the administrative closure
rate.
[D]
Finding IV.B.2.c: After HUD adopted a new intake
process in FY 1996, emphasizing the assessment of claims to determine
whether they warranted full investigation, the number of HUD complaints
filed dropped even further. By FY 2000, complaints (N = 1,988) were
at 30 percent of their FY 1992 level.
Finding IV.B.2.d: On February 1, 2001, HUD abandoned
its claims assessment process in favor of a system that gives investigators
20 days to process an inquiry to determine whether it will be filed
as a complaint. HUD did not supply data by which the effectiveness
of this new approach can be gauged.
Recommendation IV.B.2.b: Congress should closely monitor
HUD's new intake protocol to ensure that it does not inappropriately
discourage the filing of fair housing complaints and does not inappropriately
prevent the conversion of inquiries into complaints.
3. HUD Regional Offices Vary Widely in Complaint Intake
Beneath the raw numbers provided by HUD are significant
variations in regional offices, or HUBs (see Table IV-2).
Table IV-2: HUD Complaints Filed, by HUB
|
FY 90 |
FY 91 |
FY 92 |
FY 93 |
FY 94 |
FY 95 |
FY 96 |
FY 97 |
FY 98 |
FY 99 |
FY 00 |
HQ |
0 |
0 |
0 |
0 |
0 |
0 |
2 |
5 |
2 |
30 |
4 |
1. Boston |
244 |
232 |
289 |
139 |
123 |
119 |
101 |
107 |
80 |
57 |
79 |
2. New York |
140 |
362 |
404 |
449 |
516 |
311 |
253 |
239 |
238 |
212 |
103 |
3. Philadelphia |
273 |
430 |
590 |
540 |
299 |
84 |
71 |
59 |
52 |
69 |
62 |
4. Atlanta |
452 |
766 |
558 |
373 |
475 |
257 |
160 |
161 |
109 |
331 |
431 |
5. Chicago |
903 |
1061 |
893 |
806 |
642 |
519 |
342 |
348 |
408 |
382 |
372 |
6. Ft. Worth |
688 |
943 |
1198 |
1047 |
803 |
555 |
331 |
197 |
222 |
291 |
164 |
7. Kansas
City |
304 |
468 |
636 |
462 |
403 |
434 |
162 |
185 |
349 |
396 |
281 |
8. Denver |
225 |
292 |
381 |
300 |
355 |
198 |
147 |
99 |
77 |
107 |
103 |
9. San Francisco |
808 |
950 |
1074 |
1440 |
961 |
271 |
220 |
227 |
303 |
163 |
97 |
10. Seattle |
249 |
332 |
555 |
658 |
429 |
386 |
267 |
176 |
145 |
175 |
292 |
|
|
|
|
|
|
|
|
|
|
|
|
NATIONAL |
4,286 |
5,836 |
6,578 |
6,214 |
5,006 |
3,134 |
2,056 |
1,803 |
1,985 |
2,213 |
1,988 |
The Chicago HUB has consistently filed large numbers
of complaints, perhaps in part because it covers three very populous
statues without FHAP agencies whose combined population is twice
the size served by the next largest HUB. Since the certification
of the New York FHAP in 2000, complaints filed by the New York HUB
have been cut in half. All the states in the Philadelphia region
have FHAPs, so the number of complaints processed by HUD has been
very low since FY 1995, comprising primarily cases involving a public
housing authority or complicated issues. In addition, Secretary-initiated
complaints (see Section IV.F.1, below) are included as part of the
Philadelphia HUB's caseload.
4. Growth in State and Local Agency Intake
FHAP agencies experienced steady growth in complaints
from FY 1989 through FY 1995, notwithstanding the fact that many
fewer agencies were deemed substantially equivalent between September
1992 and September 1995. Complaints to FHAP agencies dropped 23
percent from FY 1995 to FY 1999, in part because of the fact that
the HUD claims process was eliminating cases that previously would
have been referred to FHAPs as complaints (see Chart IV-5).
[D]
The certification of the New York State Division
of Human Rights as a "substantially equivalent" agency in FY 2000
and its assumption of complaints previously handled by HUD may account,
in part, for the 25 percent increase in FHAP complaints from the
previous year.
5. Disability Is the Fastest Growing and Largest Category
Among Housing Discrimination Complaints
HUD assumed responsibility for enforcing the disability
provisions of the FHAA in March 1989, roughly halfway through FY
1989. That year, 489 complaints filed by the agency cited "handicap"
as a basis of discrimination. That number grew each year through
FY 1992. For the first time, in FY 1999 and FY 2000, disability
complaints topped all others, followed by race and familial status.
During those two fiscal years, allegations of disability discrimination
appear in 42 percent of complaints filed with HUD (see Table IV-3).
Table IV-3: Complaints Filed with HUD, by Protected
Class
Protected Class |
FY 89 |
FY 90 |
FY 91 |
FY 92 |
FY 93 |
FY 94 |
FY 95 |
FY 96 |
FY 97 |
FY 98 |
FY 99 |
FY 00 |
Race |
903 |
1,437 |
2,212 |
2,805 |
2,861 |
2,348 |
1,443 |
872 |
779 |
924 |
818 |
793 |
Sex |
310 |
470 |
577 |
862 |
886 |
670 |
478 |
214 |
205 |
214 |
158 |
177 |
Color |
131 |
151 |
261 |
225 |
86 |
93 |
98 |
115 |
142 |
154 |
173 |
56 |
National Origin |
167 |
318 |
457 |
648 |
799 |
600 |
347 |
286 |
257 |
240 |
221 |
222 |
Handicap |
489 |
1,053 |
1,447 |
1,608 |
1,509 |
1,395 |
967 |
621 |
651 |
724 |
911 |
828 |
Familial Status |
1,497 |
1,959 |
2,330 |
2,071 |
1,629 |
1,130 |
704 |
472 |
324 |
304 |
429 |
322 |
Religion |
45 |
76 |
200 |
148 |
169 |
147 |
62 |
29 |
39 |
31 |
70 |
37 |
The growth of disability complaints cannot be attributed
to a single cause, but is undoubtedly influenced by the growing
recognition that people with disabilities are entitled to equal
housing opportunity under the FHA. HUD has contributed to this effort
through its support of private fair housing enforcement agencies
under the FHIP program, awarding FHIP grants both to full-service
enforcement agencies handling disability complaints and to other
advocacy groups focused exclusively on education about, outreach
to, and enforcement of the rights of people with disabilities. (See
Section VI.) Over the past decade, the country has also experienced
a measure of "cultural maturation" concerning disability rights.
Increasing acknowledgment of the legitimacy of these rights, especially
the right to reasonable accommodation under the FHA, may also have
fueled the dramatic increase in disability complaints.
Finding IV.B.5.a: Disability complaints now compose
the largest percentage of HUD complaints. Complaints of disability
discrimination have composed a growing percentage of HUD and FHAP
receipts. In FY 1999 and FY 2000, nearly 42 percent of all HUD complaints
included allegations of disability discrimination, more than any
other protected class.
Finding IV.B.5.b: The growth of disability complaints
cannot be attributed to a single cause but is undoubtedly influenced
by the growing recognition that people with disabilities are entitled
to equal housing opportunity under the FHA.
Finding IV.B.5.c: HUD has contributed to the growth
in disability complaints through its support of private fair housing
enforcement agencies under FHIP. HUD has awarded FHIP grants to
full-service enforcement agencies handling disability complaints
and to other advocacy groups focused exclusively on education about,
outreach to, and enforcement of the rights of people with disabilities.
Recommendation IV.B.5: HUD should continue to explore
ways that it can use FHIP and contract funds to support collaborative
work between full-service fair housing agencies and organizations
representing people with disabilities.
6. There Are Wide Regional Variations in HUD Disability
Complaints
There are significant differences between the HUBs
with respect to the percentage of Title VIII complaints alleging
disability discrimination (see Table IV-4). The best consistent
performers have been the Boston, New York, and Denver HUBs, which
have consistently higher percentages of disability complaints than
the national average. The Seattle and San Francisco HUBs rebounded
strongly in the past three fiscal years and are now among the leaders
in percentage of disability complaints.
Table IV-4: Percentage of HUD Title VIII Complaints
That Allege Disability, by HUB and Fiscal Year
(Bold numbers indicate below national average)
HUB |
1989 |
1990 |
1991 |
1992 |
1993 |
1994 |
1995 |
1996 |
1997 |
1998 |
1999 |
2000 |
1. Boston |
N/A |
48 |
34.1 |
40.8 |
33.1 |
38.2 |
37 |
31.7 |
60.7 |
58.8 |
47.4 |
67.1 |
2. New York |
N/A |
45.7 |
24.6 |
35.6 |
30.1 |
34.5 |
38.9 |
43.5 |
43.5 |
40.3 |
41.5 |
42.7 |
3. Philadelphia |
N/A |
37 |
41.4 |
30 |
28.5 |
33.8 |
27.4 |
25.4 |
30.5 |
17.3 |
39.1 |
29 |
4. Atlanta |
N/A |
22.3 |
21 |
17.2 |
21.7 |
27.8 |
26.8 |
29.4 |
35.4 |
34.9 |
48.3 |
33.2 |
5. Chicago |
N/A |
22.9 |
20.5 |
23.1 |
22.6 |
27.9 |
30.8 |
25.7 |
31 |
30.9 |
30.1 |
30.6 |
6. Ft. Worth |
N/A |
14 |
17.5 |
15.9 |
21.1 |
22.4 |
23.8 |
29 |
30.5 |
31.5 |
57.4 |
45.7 |
7. Kansas City |
N/A |
30.3 |
36.3 |
26.4 |
24.7 |
32.3 |
28.3 |
25.9 |
34.6 |
32.1 |
31.6 |
34.5 |
8. Denver |
N/A |
26.2 |
31.2 |
33.3 |
34.3 |
42.5 |
47 |
36.7 |
46.5 |
40.3 |
33.6 |
48.5 |
9. San Francisco |
N/A |
18.8 |
22.3 |
24.1 |
23 |
21.1 |
36.2 |
30.9 |
35.7 |
42.2 |
46 |
64.9 |
10. Seattle |
N/A |
25.7 |
25.6 |
22.2 |
21.6 |
21.9 |
26.9 |
24.7 |
26.7 |
47.6 |
54.3 |
57.9 |
Nat'l Avg. |
N/A |
24.6 |
24.8 |
24.4 |
24.3 |
27.9 |
30.9 |
30.3 |
36.1 |
36.6 |
41.5 |
41.6 |
While nearly every HUB has fallen below the national
average in this category during at least one fiscal year, five of
the HUBs are consistently below the national norm, giving rise to
a concern that disability issues may not be getting appropriate
attention. Despite leading the nation in overall complaints filed,
the Chicago HUB has been at or below average for the past 11 fiscal
years in terms of disability complaints. Atlanta and Ft. Worth have
been below the national average nearly every year. Kansas City had
above average disability caseloads in the early 1990s, but has been
consistently (and significantly) below average for each of the past
six fiscal years. Philadelphia's performance must be explained,
in part, by the fact that FHAP agencies serve all the jurisdictions
in its region.
HUD has suggested that this variation among its regional
offices may reflect the geographic distribution of people with disabilities
across the country.83
Data from the 1990 Census (summarized in Appendix IV-2), however,
suggest that this may be a factor for only two HUBs. According to
the Census, 10.4 percent of Americans report having a serious disability.84
The Chicago HUB handles complaints from Illinois (9.3 percent of
population reports a disability), Minnesota (8.6 percent), and Wisconsin
(8.6 percent), all of which report lower than average incidences
of disability. The Kansas City HUB serves a region where 8.7 percent
of the population reports having a disability. However, the other
two poor performers--Atlanta and Ft. Worth--serve populations that
report rates of disability significantly above the national average.
Finding IV.B.6.a: Throughout the 1990s, HUD devolved
substantial authority to its HUBs and allowed them great autonomy
to structure intake, complaint processing, investigation, and cause
determinations.
Finding IV.B.6.b: In the mid- and late 1990s, Headquarters
FHEO ceased its close oversight of HUB operations, opting instead
for "remote monitoring." The result has been significant differences
in practice among HUBs, including markedly different treatment of
disability complaints.
Finding IV.B.6.c: There is great variability in numbers
of complaints (overall and on the basis of disability) filed by
HUD's 10 HUBs and by FHAPs that is not adequately explained by differences
in populations served by each HUB.
Finding IV.B.6.d: The management style currently employed
by Headquarters FHEO tends to reinforce significant regional variations
in enforcement practice, resulting in different treatment of disability
(and other) complaints depending on the state in which a complainant
lives and whether the complaint is handled by HUD or by an FHAP.
Recommendation IV.B.6.a: HUD should assess the intake
process at each HUB and at each FHAP to determine whether the historically
low number of complaints (overall or on the basis of disability)
reflects impediments for victims of discrimination in using the
Title VIII administrative complaint system.
Recommendation IV.B.6.b: HUD should identify best practices
among HUBs and FHAPs concerning community outreach, intake, case
processing, investigation, and cause determination and require HUBs
and FHAPs that do not already do so to use them.
Recommendation IV.B.6.c: Headquarters FHEO should take
active steps to deal with these regional differences so that the
quality of justice does not depend on place of residence, or should
assume greater central authority over the Title VIII complaint process.
7. Disability Caseloads at State and Local Agencies
Disability claims have represented a somewhat smaller
percentage of the caseload of state and local FHAPs, as demonstrated
by Chart IV-6.85
[D]
While no single factor can explain why a smaller
percentage of disability complaints is filed with FHAPs than with
HUD, NCD believes that a relatively high number of disability complaints
are filed against public housing authorities and other entities
governed by Section 504 of the Rehabilitation Act, making it more
likely that complaints are dually filed as Title VIII and Section
504 complaints, and are therefore more likely to be retained by
HUD for investigation under both statutes.
As with HUD, the performance of FHAPs differs widely
by region.86
From FY 1990 through FY 2000, the strongest performers were San
Francisco, Atlanta, and Chicago. This may be explained by the fact
that these regions have the largest populations served by FHAPs.
The Ft. Worth and Philadelphia FHAP regions have populations with
higher than average rates of disability in the population, but similar
to their HUD regional counterparts, they have subpar records in
terms of disability complaints. The New York region did not have
a certified FHAP prior to FY 2000 and represents a relatively small
proportion of disability complaints over the 11-year period. The
Denver and Seattle regions have the lowest percentage of disability
complaints, but also the smallest populations served by FHAPs.
Finding IV.B.7: There are significant differences between
the HUBs with respect to the percentage of Title VIII complaints
alleging disability discrimination. Five of the HUBs (Chicago, Atlanta,
Ft. Worth, Philadelphia, and Kansas City) are consistently below
the national norm, giving rise to a concern that disability issues
may not be getting appropriate attention. The Chicago HUB, which
historically files the greatest number of overall fair housing complaints,
has been at or below average for disability complaints every year
since the FHAA was passed.
Recommendation IV.B.7.a: HUD should assess the intake
process at each HUB and at each FHAP to determine whether the historically
low number of complaints (overall or on the basis of disability)
reflects impediments for victims of discrimination in using the
Title VIII administrative complaint system.
Recommendation IV.B.7.b: Headquarters FHEO should take
active steps to deal with these regional differences so that the
quality of justice does not depend on place of residence, or should
assume greater central authority over the Title VIII complaint process.
8. Issues in Disability Claims and Complaints Filed
with HUD and FHAPs
Since the passage of the Civil Rights Act of 1968,
HUD has kept data on "issues" in discrimination cases. In its current
form (in place since at least 1988), HUD has used a three-digit
code and a brief descriptive phrase to classify issues raised in
complaints. Obviously, more than one issue may arise in a given
complaint or claim. HUD and FHAP staff are asked to code each case
with one or more issues (see Table IV-5).
Table IV-5: HUD Case Issue Codes
Code
| Issue |
Code |
Issue |
Code |
Issue |
300 |
Sales |
380 |
Service/Facilities |
450 |
Coercion/818 |
310 |
Rental |
390 |
Poster |
460 |
Zoning/Land Use |
320 |
Advertisement |
400 |
Refusing Insurance |
470 |
Design/ Construction |
330 |
False Representation |
410 |
Steering |
480 |
Criminal/901 |
340 |
Blockbusting |
420 |
Redlining |
490 |
Familial Status |
350 |
Financing |
430 |
Otherwise Deny Housing |
500 |
Reasonable Modification |
360 |
Brokerage |
440 |
Other |
510 |
Reasonable Accommodation |
Allegations of disability discrimination come in many
different forms, some of which are similar to other discrimination
claims and some of which are unique to disability. In the former
category are such frequently cited issues as refusal to rent or
sell (Code 300 or 310 below); discrimination in the "terms, conditions
or privileges of sale or rental of a dwelling, or in the provisions
of services and facilities in connection therewith" (Code 380);
or coercion/intimidation (Code 450). As with discrimination on other
bases, these allegations can be proven with evidence of intentional
discrimination or of disparate impact on a protected class.
With the passage of the FHAA, however, people with
disabilities also enjoy protection against other acts and omissions
that are specific to disability status. Beginning in 1990, HUD purported
to track three categories that are virtually unique to disability:
(1) noncompliance with design and construction requirements (handicap)(Code
470); (2) failure to permit reasonable modification (Code 500);
and (3) failure to make reasonable accommodation (Code 510). These
do not require proof of intentional discrimination or disparate
impact and are therefore arguably less complicated to investigate.
HUD also uses a fourth category-"Using ordinances to discriminate
in zoning and land use" (Code 460)-that often but not always involves
disputes affecting group homes for people with disabilities.
Before FY 1996, because of the insufficiency of HUD's
data collection systems and lack of oversight concerning how cases
were coded at intake, these disability-specific categories were
not often cited. Pursuant to HUD guidance, beginning in FY 1996,
HUD and FHAPs made greater use of disability-specific categories.
It is possible, therefore, to analyze in greater detail the specific
types of discrimination claims embedded in these complaints. After
HUD adopted its current data collection system-the Title VIII Paperless
Office Tracking System (TEAPOTS)-and provided technical assistance
and oversight concerning its use, frontline intake staff at HUD
and at FHAPs have made much greater use of the disability-specific
categories.87
The distribution of HUD cases across issue codes is
displayed in Table IV-6.
Table IV-6: HUD Cases Involving Disability Claims
|
FY 1996 |
FY 1997 |
FY 1998 |
FY 1999 |
FY 2000 |
Total Complaints Alleging
Disability Discrimination |
622 |
650 |
727 |
919 |
828 |
Zoning |
42
6.7% |
37
5.6% |
51
7.0% |
38
4.1% |
69
8.3% |
Design and Construction |
27
4.3% |
81
12.4% |
137
18.8% |
203
22.0% |
76
9.1% |
Design and Construction |
27
4.3% |
81
12.4% |
137
18.8% |
203
22.0% |
76
9.1% |
Reasonable Modification |
0
0% |
10
1.5% |
17
2.3% |
36
3.9% |
30
3.6% |
Reasonable Accommodation |
11
1.7% |
100
15.3% |
236
32.4% |
317
34.4% |
345
41.6% |
Similar changes in FHAP record keeping have yielded
similar results, as shown in Table IV-7.
Table IV-7: FHAP Cases Involving Disability Claims
|
FY 1996 |
FY 1997 |
FY 1998 |
FY 1999 |
FY 2000 |
Total Complaints Alleging
Disability Discrimination |
956 |
1,091 |
1,038 |
1,155 |
1,541 |
Zoning |
2
* |
4
* |
3
* |
3
* |
14
1.0% |
Design and Construction |
28
2.9% |
45
4.1% |
78
7.5% |
73
6.3% |
139
8.8% |
Reasonable Modification |
0
0% |
5
* |
11
1.0% |
29
2.5% |
57
3.6% |
Reasonable Accommodation |
0
0% |
41
3.7% |
113
10.8% |
315
27.2% |
594
38.5% |
*-negligible in percentage terms
The sudden upsurge in reasonable accommodation
claims between FY 1996 and FY 2000 might be attributable to more
widespread use of TEAPOTS, closer attention by HUD and FHAP supervisory
staff to properly classifying such claims, or the fact that more
people with disabilities are effectively articulating requests for
reasonable accommodation.
Finding IV.B.8: Among HUD and FHAP disability complaints,
reasonable accommodation is the most frequent issue, representing
41.6 percent of HUD cases and 38.5 percent of FHAP cases in FY 2000.
Design and construction accessibility issues rank next (9.1 percent
of HUD cases and 8.8 percent of FHAP cases).
C. Case Outcomes
HUD and FHAPs use four primary methods of closing
fair housing complaints: (1) administrative closure, (2) conciliation,
(3) no cause finding, and (4) cause finding.88
The following sections analyze HUD data with respect to each type
of case outcome.
1. Cases Administratively Closed
Through FY 1993, more than 40 percent of all HUD complaints
were ended by administrative closure, a catch-all category used
by investigators when they could not complete the investigation
of a case. HUD became concerned about the frequent use of this category
and in September 1994 issued very explicit guidance discouraging
the use of administrative closures.89
FHEO subsequently incorporated this guidance into
HUD's Title VIII Complaint Intake, Investigation, and Conciliation
Handbook (8024.01), which cautions investigators and supervisors
as follows: "Administrative closures should be used neither casually
nor routinely. It is critical that cases not be closed administratively
except under specific circumstances" (Chapter 9, Section 9-1). Those
limited circumstances include only situations in which an investigation
cannot be completed because the complainant cannot be located or
will not cooperate, where the complainant has decided not to proceed,
or when a trial has commenced.
HUD reinforced this guidance by incorporating performance
measures for rating FHEO managers and supervisors. From 1995 to
1996, supervisory personnel whose offices exceeded an administrative
closure rate of 15 percent received lower scores on their performance
appraisals. In FY 1997, the target rate dropped to 13 percent.90
By enforcing accountability, HUD was able to reduce agencywide administrative
closure rates from 48 percent in FY 1993 to 15 percent in FY 1997.91
When the performance measures were deleted from appraisals in FY
1998, the administrative closure rate went back up to 19 percent.
In FY 1999 it was 20 percent and in FY 2000, it had gone up to 21
percent. Throughout the study period, disability complaints are
somewhat less likely than other HUD complaints to be coded as administrative
closures.92
Staffing, management, and morale problems, which are
described in greater detail in Section VI of this report, are the
most likely cause of this upsurge in administrative closures. Understaffing
also has exacerbated the "aged cases problem"; as cases age, they
become more difficult to investigate and are more likely to be closed
administratively.
Finding IV.C.1: By enforcing accountability, HUD was
able to reduce agencywide administrative closure rates from 48 percent
in FY 1993 to 15 percent in FY 1997. When the performance measures
were deleted from appraisals in FY 1998, the administrative closure
rate went back up to 19 percent. In FY 1999, it was 20 percent,
and in FY 2000, it had gone up to 21 percent.
Recommendation IV.C.1: HUD should establish and enforce
accountability and job performance standards modeled on those in
place during FY 1995 through FY 1997 to ensure that the administrative
closure method is not overused.
During the first two fiscal years (FY 1991 and FY
1992) that FHAP agencies handled disability complaints in appreciable
numbers,93 these
complaints experienced a significantly higher rate of administrative
closure than the typical FHAP complaint. FHAPs have been somewhat
more successful than HUD in the past three fiscal years in reducing
the percentage of cases closed administratively.94
Since FY 1993, FHAPs have used administrative closure less often
for disability cases than for cases in general, mirroring the practice
at HUD.
2. Cases Conciliated
Prior to 1989, conciliation of housing discrimination
complaints was one of the very few techniques available to HUD and
FHAP agencies.95
After passage of the FHAA--and the expansion of enforcement options--conciliation
remains the most frequently used method of resolving complaints.
By statute, HUD and FHAPs must attempt to bring complainants and
respondents together to try to conciliate fair housing complaints
(42 U.S.C. §3610(b)). Although such conciliation is voluntary
(and either side may refuse to conciliate without prejudicing its
case), many parties choose this route because it is comparatively
inexpensive and quick compared with an administrative hearing or
litigation.96
HUD devotes a chapter of its intake manual to the mechanics of conciliation.97
If conciliation fails, HUD (or the FHAP) continues its investigation
and eventually must determine whether there is reasonable cause
to believe that discrimination has occurred.
Chart IV-7 illustrates the extent to which HUD complaints
have been closed through conciliation agreements.
[D]
In FY 1989, more than half of all HUD complaints
were resolved through conciliation. Conciliation as a means of closing
HUD cases dropped below 35 percent in FY 1991, FY 1992, and FY 1993
before rising dramatically in FY 1994 (to 42 percent) and FY 1995
(to 52 percent). During every year since FY 1989, disability cases
have been more likely than other cases to be closed by conciliation.
During many years, the conciliation rate for disability cases is
a full 10 percentage points higher than for all other protected
classes.
There is no discernible historical trend showing divergence
in conciliation rates among the HUBs. With respect to disability,
the San Francisco and Chicago HUBs have had the largest number of
conciliated complaints resulting in monetary compensation.
Conciliation is used somewhat less often by FHAPs
(inching above 40 percent of all closures only in FY 1994). While
FHAP disability complaints are more likely than FHAP nondisability
complaints to be resolved by conciliation, FHAPs appear to rely
on conciliation somewhat less than HUD, both in terms of disability
cases and other cases (see Chart IV-8).
[D]
It is not possible to isolate a single explanation
for the greater use of conciliation in disability cases compared
with all other cases. It may be that a greater percentage of disability
cases involve single issues or a misunderstanding between home seekers
with disabilities and housing providers over the scope of the FHA.
Where such misunderstandings result in a complaint being filed,
conciliation may be the most effective way to educate both parties
and resolve disputes quickly and cheaply.
Alternatively, the phenomenon may be explained by
the availability of more sophisticated disability advocates who
help people with disabilities use the conciliation process to achieve
positive solutions to disputes. This theory is borne out in part
by reviewing data on conciliated disability complaints that involve
monetary compensation to complainants. Aggregating HUD and FHAP
complaints demonstrates that the Chicago and San Francisco regions
had the highest number of such cases. These regions have large numbers
of sophisticated disability advocates. The Kansas City and Ft. Worth
regions also have strong disability advocates and a reasonably large
number of conciliated disability complaints with monetary compensation
but low levels of per-case compensation.98
Further investigation of this phenomenon is warranted but is beyond
the scope of this report.
Finding IV.C.2: During every year since FY 1989, disability
cases have been significantly more likely than other cases to be
closed by conciliation. While FHAP disability complaints are more
likely than FHAP nondisability complaints to be resolved by conciliation,
FHAPs appear to rely on conciliation somewhat less than HUD, in
terms of both disability cases and other cases.
3. No Cause Findings
If an allegation survived HUD's claims assessment
process and matured into a complaint, it was investigated pursuant
to the FHA. If conciliation fails and reasonable cause is found
to believe that a violation of the FHA has occurred, HUD (or the
FHAP) is required to issue a formal charge of discrimination.99
If reasonable cause is not found, the complaint must be dismissed,
and HUD is required to issue a public notification of the dismissal.100
Despite the dismissal, the complainant retains his or her right
to pursue the dispute through private litigation, but at substantially
greater difficulty and expense than if the agency finds reasonable
cause.
Chart IV-9 shows the percentage of "no cause" cases
for HUD from FY 1989 through FY 2000, comparing all HUD complaints
to disability complaints.
[D]
For the first several years after passage
of the FHAA, HUD no cause findings did not exceed 20 percent of
all closures. Then they reached 27 percent in FY 1994 and 23 percent
in FY 1995. In FY 1996--the very year HUD adopted its claim/complaint
dichotomy--no cause findings spiked to 45 percent of all closures,
and they remained at 43 percent in FY 1997. This result is counterintuitive,
as the claims process was designed to weed out allegations of discrimination
that could not be fully documented. One would have expected that
weeding out weaker cases would have led to a decline in the percentage
of no cause findings. Rather, while HUD complaints dropped dramatically
from FY 1995 to FY 1996 (from 3,134 to 2,056), the percentage of
no cause closures nearly doubled (from 23 percent to 45 percent).
Two major factors explain the dramatic rise in no
cause findings in FY 1996 and FY 1997. First, it was during those
fiscal years that the effect of HUD's strict guidance (and related
performance measures) concerning administrative closures was first
implemented and closely monitored. Investigators could no longer
close large numbers of cases under the old method and were required
to determine whether cause existed. Second, as the number of FHEO
enforcement staff has decreased,101
the average age of HUD cases has increased dramatically, to nearly
500 days.102
As cases age, it becomes harder to marshal the evidence necessary
to support a cause finding. As a result of these two pressures,
it is likely that FHEO accepted the spike in no cause findings as
a way to clear out its inventory of old cases.
Since FY 1989, disability complaints at HUD have been
somewhat less likely than the average complaint to be dismissed
as having no cause. That may result from the fact that HUD disability
complaints are more likely to be resolved earlier in the process,
especially through conciliation, and that fewer nonmeritorious cases
are left at the cause/no cause decision point.
FHAPs have had a very different history with respect
to no cause findings. From FY 1989 through FY 1992, FHAPs "no caused"
more than 45 percent of all cases. The percentage dropped dramatically
in the FY 1993 (to 28 percent), but has continued to rise each year
since, reaching more than 50 percent during FY 2000 (see Chart IV-10).
For some of the reasons discussed above, disability complaints are
somewhat less likely than the average complaint to be closed with
a no cause finding. By comparison, HUD closes a significantly smaller
percentage of complaints with no cause.
[D]
Finding IV.C.3.a: Since FY 1996, HUD has closed
at least one-third of its complaints (and FHAPs have closed at least
41 percent) with a finding that no cause existed to believe discrimination
had occurred.
Finding IV.C.3.b: Since FY 1996, disability complaints
were closed with a finding of no cause at a slightly lower rate.
This may result from the fact that HUD disability complaints are
more likely to be resolved earlier in the process, especially through
conciliation, and that fewer nonmeritorious cases are left at the
cause/no cause decision point.
4. Cases in Which HUD Finds Cause to Believe Discrimination
Has Occurred
HUD may, after conducting an investigation of a fair
housing complaint, find reasonable cause to believe that discrimination
has occurred. This threshold finding does not determine liability
on the part of the respondent; rather, it invests the complainant
with a set of rights to participate in an administrative or judicial
hearing to determine liability (and, if relevant, to award monetary
damages and other relief). The decision of whether to issue a charge
is of critical importance to the complainant. It determines whether
the case will proceed to trial or will be dismissed. The number
of charges filed also serves as a barometer of HUD's willingness
to find and prosecute discrimination.
Chart IV-11 graphically displays the gradual decline
in overall cause findings by HUD and FHAPs since FY 1990.
[D]
The absolute number of charges in all HUD
cases declined from 213 in FY 1995 to 74 in FY 1997. The number
went up to 82 in FY 1998 and to 115 in FY 1999 before declining
to 96 in FY 2000.
For a number of years, outside observers have criticized
the small number of cause determinations issuing from HUD.103
One commentator has said:
What is most remarkable about the surge in complaints
received by HUD from 1995 to 1997 is that it has been accompanied
by a decrease in the number and percentage of cause findings.
... It appears that HUD investigators and regional counsel have
inexplicably raised the bar for complainants to have their case
heard by a fact finder, whether it be an administrative law judge
or a federal jury.104
This finding is supported by Chart IV-12.
[D]
During the year immediately following passage
of the FHAA, HUD found cause in just 1 percent of all cases and
in just under 1 percent of disability cases. Since then, disability
complaints have lagged significantly behind the average HUD case
in probability of cause finding.
Finding IV.C.4.a: Since FY 1990, complaints of disability
discrimination have lagged significantly behind the average HUD
case in probability of cause finding.
Finding IV.C.4.b: Of the 12,017 disability complaints
filed with HUD from 1990 through 2000, the agency found reasonable
cause to believe discrimination had occurred in just 284 cases,
or 2.4 percent of all cases.
Finding IV.C.4.c: When HUD finds cause in only 1 out
of 40 disability cases, it may be sending a message to the disability
community that victims of disability discrimination are unlikely
to secure relief through filing a HUD complaint.
Recommendation IV.C.4.a: HUD should take steps to improve
its credibility with disability groups and advocates by aggressively
pursuing disability discrimination complaints and widely publicizing
favorable results.
The number of cause findings varies dramatically from
region to region.105
Table IV-8 demonstrates that variance during the past three fiscal
years.
Table IV-8: HUD Cause Findings, All Cases, Fiscal
Years 1998-2000
FY |
1 |
2 |
3 |
4 |
5 |
6 |
7 |
8 |
9 |
10 |
Total |
1998 |
1 |
13 |
7 |
2 |
14 |
8 |
11 |
2 |
4 |
20 |
82 |
1999 |
12 |
24 |
2 |
8 |
23 |
3 |
7 |
20 |
0 |
16 |
115 |
2000 |
3 |
28 |
1 |
6 |
17 |
3 |
6 |
9 |
15 |
8 |
96 |
Even with the transfer of New York State's Title VIII
complaints to the New York FHAP, the New York HUB has consistently
charged more cases than any other HUB. The Chicago HUB, despite
the fact that most of its region is served by FHAPs, has also consistently
charged a large number of complaints. One would expect the Philadelphia
HUB to be low because the region is entirely served by FHAPs. The
most troubling findings are with respect to the Boston, Atlanta,
Ft. Worth, and San Francisco HUBs, all with very few cause findings.
Among other examples, during FY 1999, the San Francisco HUB did
not find cause in a single case, and Ft. Worth "caused" only three
cases. During FY 2000, the Boston and Ft. Worth HUBs found cause
in only three cases each.
Finding IV.C.4.d: HUD cause findings have declined
dramatically, from 325 in FY 1994 to 96 in FY 2000.
There are also significant differences among HUBs
concerning the number of disability complaints and the percentage
of cause findings in disability cases since the passage of the FHAA
(see Table IV-9).
Table IV-9: HUD Disability Complaints and Cause
Determinations Thereon (1990-2000)
HUB |
Complaints |
Cause Findings |
Cause as % of Complaints |
1 |
675 |
15 |
2.2 |
2 |
1,173 |
57 |
4.9 |
3 |
1,124 |
12 |
1.0 |
4 |
1,085 |
30 |
2.8 |
5 |
1,702 |
42 |
2.5 |
6 |
1,452 |
22 |
1.5 |
7 |
1,237 |
11 |
0.9 |
8 |
841 |
18 |
2.1 |
9 |
1,670 |
54 |
3.2 |
10 |
1,058 |
23 |
2.2 |
National |
12,017 |
284 |
2.4 |
In absolute numbers and in terms of percentage of
caseload, the New York HUB ranked highest in disability complaints
with cause findings (57 cause findings, or 4.9 percent of cases)
and the Kansas City HUB ranked lowest (11 cause findings, or 0.9
percent of cases).
Finding IV.C.4.e: There are significant differences
among HUBs concerning the overall number of disability complaints
and the percentage of cause findings in disability cases since FY
1990. In absolute numbers and in terms of percentage of caseload,
the New York HUB ranked highest in disability complaints with cause
findings over the 11-year period (57 cause findings, or 4.9 percent
of its disability cases) and the Kansas City HUB ranked lowest (11
cause findings, or 0.9 percent of its disability cases).
Finding IV.C.4.f: Such regional variations are attributable
to cultural differences between regions of the country and personnel
assigned to the respective HUBs. The management style currently
employed by Headquarters FHEO tends to reinforce significant regional
variations in enforcement practice, resulting in different treatment
of disability (and other) complaints depending on the state in which
a complainant lives and whether the complaint is handled by HUD
or by an FHAP.
Finding IV.C.4.g: Victims of discrimination are discouraged
from using the Title VIII administrative process at HUD and FHAPs
for a variety of reasons, including an unwelcoming intake process,
inordinate delays in assessing and investigating claims, relatively
small monetary awards achieved through HUD and FHAP conciliation,
and a generalized sense that the administrative process rarely achieves
results that outweigh the personal costs of filing a claim or complaint.
Recommendation IV.C.4.b: Congress should require HUD
to conduct a study to determine why the absolute number and percentage
of cause findings (especially those in disability cases) have declined
so precipitously, and why there are such wide variations on these
indicators among the HUBs.
Recommendation IV.C.4.c: Headquarters FHEO should take
active steps to deal with these regional differences so that the
quality of justice does not depend on place of residence, or should
assume greater central authority over the Title VIII complaint process.
As noted, FHAPs essentially handled no disability
claims prior to FY 1992. From FY 1992 through FY 2000, FHAPs charged
347 of the 8,683 disability cases they handled, or 4 percent of
total complaints (see Chart IV-13). This rate is considerably higher
than the 2.4 percent rate for HUD-processed disability complaints
for the same period. As shown in Chart IV-13, disability complaints
experience a greater relative likelihood of being cause cases at
FHAPs than at HUD.
[D]
Finding IV.C.4.g: FHAP cause findings have declined
from 545 in FY 1990 to 158 in FY 2000.
Finding IV.C.4.h: From FY 1992 through FY 2000, FHAPs
charged 347 of the 8,683 disability cases they handled, or 4 percent
of total complaints. This rate is 40 percent higher than the rate
for HUD-processed disability complaints for the same period.
Recommendation IV.C.4.d: HUD should conduct an analysis
to determine why FHAPs, on average, charge 40 percent more of the
disability complaints they handle. HUD should identify and distill
the practices that have led to this success and require their use
by HUDs and FHAPs that do not already employ them.
This 40 percent figure, however, masks wide variations
from region to region. For instance, FHAPs in the Boston region
found cause in 8.7 percent of disability complaints, and Philadelphia
area FHAPs found cause in 8.0 percent. By contrast, Ft. Worth area
FHAPs found cause in just 0.6 percent of all disability complaints,
and those in the Seattle and Denver regions found cause in 2.5 percent
and 2.7 percent of all disability cases, respectively, as shown
in Table IV-10.
Table IV-10: FHAP Disability Complaints and Cause
Determinations Thereon (1990-2000)
HUB |
Complaints |
Cause Findings |
% of Cause Findings |
1 |
790 |
69 |
8.7 |
2 |
145 |
7 |
4.8 |
3 |
912 |
35 |
3.8 |
4 |
1,412 |
33 |
8.0 |
5 |
1,224 |
85 |
6.9 |
6 |
907 |
6 |
0.6 |
7 |
840 |
34 |
4.0 |
8 |
515 |
14 |
2.7 |
9 |
1,541 |
54 |
3.5 |
10 |
397 |
10 |
2.5 |
National Total |
8,683 |
347 |
4.0 |
Finding IV.C.4.i: There are wide and troubling variations
from region to region among the FHAPs. For instance, Boston region
FHAPs found cause in 8.7 percent of disability complaints, and Philadelphia
area FHAPs found cause in 8.0 percent. By contrast, Ft. Worth area
FHAPs found cause in 0.6 percent of all disability complaints, and
those in the Seattle and Denver regions found cause in 2.5 and 2.7
percent of all disability cases, respectively.
Recommendation IV.C.4.e: Headquarters FHEO should take
active steps to deal with these regional differences so that the
quality of justice does not depend on place of residence. Alternatively,
Headquarters should assume greater central authority over the Title
VIII complaint process.
D. Case Processing Times
1. Statutory and Regulatory Constraints
The FHA requires HUD to complete its investigation
of fair housing complaints "within 100 days after the filing of
the complaint...unless it is impracticable to do so" (42 U.S.C.
§3610(a)(1)(B)(iv)). HUD implemented its claims process in
FY 1996, apparently in order to ensure better front-end assessment
of allegations of discrimination and more efficient use of resources
devoted to investigating jurisdictional complaints. In order to
work properly, the claims process must adhere to strict time lines,
both to ensure that complainants don't have their cases delayed
and to achieve the efficiencies HUD sought in the first place.
The claims process was designed to streamline the
investigative process and ensure that HUD devoted its scarce resources
to cases that merited full investigation. In its first year of operation
(FY 1997), the new process had a dramatic impact: 69.5 percent of
all closures were dismissed as claims.106
That pattern has persisted in subsequent years: for FY 1998 through
FY 2000, the figures are 77 percent, 74 percent, and 71 percent,
respectively.107
The adoption of the claims procedure has the inherent
possibility of delaying resolution of fair housing cases. FHEO makes
it clear that time spent processing a claim does not count toward
the 100 days in which FHEO is mandated to complete its investigation.
As a result of concerns about the timeliness issue, FHEO established
a new time frame in May 1997 of 25 days for assessing claims and
determining whether they would be converted to complaints or dismissed.
Unfortunately, staffing and management reductions at FHEO have meant
that many HUBs are failing to complete the assessment process on
time.108
Congress intended the administrative process under
the FHA to be "economical and efficient," and to provide unrepresented
victims of discrimination with a speedy and comprehensive remedy.109
In fact, many claimants and complainants experience the system as
hostile and unwelcoming.110
In 1998, HUD's inspector general reported on an audit
of cases in three HUBs and three FHAPs. The audit sampled 117 complaints
(all of which had matured from claims) and found that in 31 percent
of cases, the 25-day assess deadline was not met. In 17 percent
of cases, HUD had not mailed a perfected complaint to the complainant
for signature with 50 days from receipt.111
At the close of FY 1997, the inspector general found that the HUBs
had 856 open claims with an average age of 62 days and noted that
this "inordinate delay" does not even count toward the statutory
requirement that HUD make a cause determination within 100 days
of filing.112
Problems with the claims assessment process and with
investigation of complaints have arisen, in part, because FHEO has
lacked sufficient enforcement staffing and has not replaced the
expertise it has lost through retirement and resignations.113
2. Actual Experience of Complaints and Claims
Significantly, HUD met the 100-day statutory processing
goal only in FY 1989, the first year after passage of the FHAA.
It came close to meeting the goal in FY 1993, but processing times
have climbed exponentially since then, with complaints during FY
2000 taking an average of 500 days to reach closure or cause determinations.
The U.S. Commission on Civil Rights identified "aged cases" (those
that have exceeded the 100-day threshold) as a significant problem
as early as FY 1991.114
The HUD inspector general noted that delays in investigating cases
caused serious, and perhaps irreparable, harm to complainants and
respondents.115
In 1999, the Citizens' Commission on Civil Rights again drew public
attention to the aged case problem.116
HUD data express the time it has taken the agency
to process complaints of housing discrimination. Table IV-11 shows
the average age of open disability complaints at the end of each
fiscal year since passage of the FHAA.
Table IV-11: Average Age (in Days) of Open HUD
Disability Complaints, by Year
|
1989 |
1990 |
1991 |
1992 |
1993 |
1994 |
1995 |
1996 |
1997 |
1998 |
1999 |
2000 |
National Average |
70 |
153 |
116 |
132 |
154 |
197 |
262 |
318 |
336 |
349 |
374 |
390 |
Finding IV.D.2.a: At the end of FY 2000, a victim of
disability discrimination could expect to have waited 13 months
since the filing of a complaint and to have no clear indication
how soon the complaint might come to a hearing or otherwise be resolved.
The average age of open complaints may vary somewhat
from the age of cases that have been closed, especially when the
agency has directed its efforts at closing some of the oldest cases
in its inventory. The data and charts on the following pages use
"closed case" data to demonstrate the growing problem with aged
cases. Closed case data from HUD data through FY 2000 indicate that
the aged case problem is accelerating (see Chart IV-14).
[D]
HUD responded to this issue by stating that
"everywhere that average age is discussed, the direct negative impact
of the claims on the age of remaining HUD complaints is not addressed.
The report simply states that the average time has increased dramatically;
however, if claims were averaged in, the overall case age would
be much less. Comparing average age during the claims years to preclaims
years is a comparison of apples and oranges, and there is no recognition
of this. Additionally, the explanation of not including claims time
in complaints aging has never been included in discussions" (FHEO
staff comments on National Council on Disability draft report, "Comments
Regarding Data," p. 3). The exclusion of claims (also known as "short
cases" because they are typically closed before they are considered
complaints) would drive up average case processing time, but the
brunt of that change would have been felt in FY 1996, the first
year the claims process was used and therefore the first year the
average would have been inflated by the exclusion of short cases.
After the institution of the claims process, average processing
time went from 377 days to 497 days, an increase of 30 percent,
calling into question HUD's explanation.
Finding IV.D.2.b: The average age of HUD complaints,
measured from filing to date of closure, has risen from 96 days
in FY 1989 to 137 days in FY 1992 to 497 days in FY 2000.
Finding IV.D.2.c: The aging of complaints has occurred
as the number of complaints investigated by HUD has declined by
70 percent.
Recommendation IV.D.2: HUD should analyze its management
practices to determine why case handling has become so inefficient,
and should report its findings to Congress and the public.
As borne out by Chart IV-13, disability claims, on
average, have reached closure or cause determinations somewhat faster
during each of the past 12 fiscal years. Even so, during the past
four fiscal years, HUD has taken roughly 300 days to investigate
such claims, or three times longer than prescribed by Congress.
HUD's Office of Inspector General (OIG) has pointedly
said that "FHEO has not achieved its mission under the Fair Housing
Act (Act) to investigate and resolve complaints of discrimination
promptly."117
The same report went on to make detailed findings about this phenomenon
and its causes:
Insufficient supervisory oversight of its investigators
and inadequate and inconsistent use of its management systems
were the primary reasons that FHEO was unable to fully achieve
its mission to promptly investigate and resolve discrimination
complaints. ... FHEO has not taken sufficient action to assess
failed controls that have allowed at least 70 percent of the [HUB]
and FHAP investigations closed in the past two years to exceed
100 days.118
In 1997, the Citizens' Commission on Civil Rights
spelled out how a dysfunctional enforcement system undermines public
confidence in the Fair Housing Act:
HUD's backlog is again growing....[The backlog]
serves as an important indicator to complainants and fair housing
advocates of the likelihood of a prompt adjudication of the complainant's
grievance. This, in turn, may well determine whether the complainant
will decide to make use of the federal enforcement process.119
Two years later, concluding that "...the real problem
is HUD's investigators' inability to identify relevant facts, analyze
evidence, and apply the law in a reasonably expeditious fashion,"120
the Citizens' Commission on Civil Rights describes the effect of
an administrative enforcement system that is not functioning within
the time frames mandated by Congress:
These [aged case] data are significant, for they
serve as an important indicator of the likelihood that a complainant
will receive a prompt adjudication. A complainant is entitled
to know this information before deciding whether to use the government
enforcement process or pursue a Fair Housing Act claim in federal
or state court....[S]ince 1988, HUD has routinely allowed complaints
to stagnate-many times for as much as a year past the 100-day
limit. These delays are devastating. Witnesses disappear or die,
memories become hazy, complainants lost heart, and defendants
complain loudly at trial about the lack of a speedy and fair adjudicatory
process."121
Finding IV.D.2.d: The aged case backlog serves as an
important indicator to complainants and fair housing advocates of
the likelihood of a prompt adjudication of the complainant's grievance.
This, in turn, may well determine whether the complainant will decide
to make use of the federal enforcement process.
Finding IV.D.2.e: At the close of FY 1998, 69 percent
of HUD's pending complaints had exceeded the statutory 100-day maximum
for investigation and determination of cause. At the close of FY
1998, 78 percent of HUD's pending complaints had gone past 100 days.
At the close of FY 1998, 68 percent of HUD's pending complaints
had surpassed the deadline. During these three fiscal years, the
Denver HUB was the worst performer (81 percent of cases older than
100 days) and Kansas City was the best (44 percent of cases older
than 100 days).
Finding IV.D.2.f: FHAP processing time to closure for
all complaints came close to meeting the 100-day mandate during
FY 1989 and remained below 140 days through FY 1993. Processing
times rose steadily through FY 1997 (when they reached 317 days).
Thereafter, they have declined nearly 30 percent; during FY 2000,
FHAP complaints took an average of 220 days from filing to closure
or cause determination.
FHAPs seem to be doing a better job concerning case
processing times, but still have routinely exceeded the 100-day
maximum since FY 1993 (see Chart IV-15).
[D]
The 1998 Audit Report of the Inspector General
also found that inadequate oversight of FHAP agencies contributes
to the aged case problem:
We found gaps of inactivity in about 70 percent
of these cases where no investigative work was being done....The
FHAP agency in California routinely sets investigations aside
and would not do any investigative work until just weeks prior
to reaching the one year statute of limitations for issuing accusations
against respondents.122
Finding IV.D.2.g: FHAPs have been able to process fair
housing complaints more quickly than HUD. In the last four years
for which data are available, FHAPs have investigated and closed
cases about 100 days faster than HUD. With respect to disability
claims, FHAPs work more quickly as well, averaging 75 fewer days
than HUD per disability complaint.
During August 2001, well after the close of the period
analyzed in this report, NCD became aware of a concerted effort
by HUD to close out aged cases in the HUD and FHAP inventories as
quickly as possible.123
While applauding the spirit of this effort, NCD cautions that care
should be taken in closing such cases in a manner that fully respects
the rights of complainants and that cases should not arbitrarily
be assigned an administrative closure or no cause determination
simply to close them out. Although no clear guidance has been given
to the field on these matters, NCD expects that it will be forthcoming
so that no victim of housing discrimination has his or her rights
extinguished.
3. Regional Variations on Aged Cases
HUBs are required to provide information on the number
of complaints that have not been investigated within the 100-day
time frame mandated by Congress. The charts in Appendix IV-3 demonstrate
that the Chicago HUB has consistent problems in meeting the deadline,
while the Atlanta and Ft. Worth HUBs have had intermittent problems.
Table IV-12 provides another measure of HUD's aged
case problem, by HUB and by fiscal year.
Table IV-12: Average Age of Open HUD Disability
Complaints, by HUB and by Year
HUB |
1989 |
1990 |
1991 |
1992 |
1993 |
1994 |
1995 |
1996 |
1997 |
1998 |
1999 |
2000 |
1 |
52 |
125 |
84 |
135 |
250 |
226 |
96 |
119 |
160 |
296 |
397 |
179 |
2 |
65 |
156 |
102 |
100 |
162 |
159 |
303 |
263 |
317 |
422 |
470 |
571 |
3 |
68 |
179 |
72 |
80 |
190 |
347 |
477 |
508 |
508 |
471 |
212 |
255 |
4 |
60 |
179 |
199 |
232 |
113 |
145 |
291 |
364 |
373 |
403 |
291 |
312 |
5 |
82 |
174 |
150 |
239 |
167 |
169 |
186 |
289 |
355 |
331 |
364 |
414 |
6 |
85 |
140 |
90 |
131 |
171 |
205 |
231 |
260 |
268 |
192 |
209 |
293 |
7 |
66 |
101 |
76 |
90 |
89 |
96 |
163 |
233 |
260 |
145 |
153 |
183 |
8 |
60 |
114 |
144 |
117 |
121 |
137 |
300 |
407 |
403 |
568 |
558 |
678 |
9 |
70 |
142 |
82 |
104 |
145 |
268 |
263 |
328 |
331 |
342 |
555 |
669 |
10 |
70 |
180 |
177 |
126 |
174 |
268 |
293 |
330 |
398 |
334 |
373 |
279 |
National Average |
70 |
153 |
116 |
132 |
154 |
197 |
262 |
318 |
336 |
349 |
374 |
390 |
FHAP processing time to closure or cause for all complaints
came close to meeting the 100-day mandate during FY 1989 and remained
below 140 days through FY 1993. Processing times rose steadily through
FY 1997 (reaching 317 days). Thereafter, they have declined nearly
30 percent; during FY 2000, FHAP complaints took an average of 220
days from filing to closure or cause determination.
HUD suggests that "[t]he FHAPs' average age of complaints
and its ability to close complaints more quickly is directly related
to HUD's handling the intake process on all cases referred to the
agencies. In FY 2000, of the 11,211 cases received, HUD received
8,231 (73 percent) and FHAP agencies received 2,980. FHAP agencies
processed 2,980 complaints because 1,990 of the cases that HUD received
(and on which it did intake) were then referred to the agencies
for completion" (FHEO staff comments on National Council on Disability
draft report, "Comments Regarding Data," p. 8). Other data in this
report show that FHAPs received 4,914 cases during FY 2000, roughly
approximating the figures above (2,980 + 1,990 = 4,970). In other
words, 40 percent of the complaints received by FHAPs were initially
processed by HUD, presumably from what would have been considered
claims. FHAPs undoubtedly benefited from this practice, because
they could begin processing the merits of the complaint without
having to establish the initial jurisdictional elements. But because
HUD also processed its own claims before considering them complaints
(and did not count this initial time toward the 100-day limit),
it had the same advantage as the FHAPs with respect to case processing
times.
With the exception of FY 2000, FHAP disability complaints
have been processed somewhat faster to closure or cause determination
(see Table IV-13).
Table IV-13: Average Age of Open FHAP Disability
Complaints, by HUB and by Year
Region |
1989 |
1990 |
1991 |
1992 |
1993 |
1994 |
1995 |
1996 |
1997 |
1998 |
1999 |
2000 |
1 |
0 |
0 |
0 |
9 |
56 |
93 |
124 |
165 |
162 |
168 |
178 |
241 |
2 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
58 |
3 |
0 |
0 |
0 |
0 |
157 |
277 |
338 |
417 |
437 |
427 |
332 |
284 |
4 |
0 |
0 |
86 |
77 |
195 |
223 |
212 |
214 |
225 |
284 |
375 |
367 |
5 |
0 |
228 |
0 |
55 |
125 |
127 |
242 |
338 |
255 |
305 |
292 |
38 |
6 |
0 |
0 |
11 |
48 |
104 |
144 |
94 |
114 |
135 |
103 |
139 |
125 |
7 |
0 |
0 |
0 |
53 |
80 |
185 |
359 |
419 |
355 |
312 |
303 |
303 |
8 |
0 |
0 |
0 |
6 |
110 |
123 |
136 |
222 |
193 |
188 |
176 |
524 |
9 |
0 |
0 |
0 |
55 |
118 |
138 |
128 |
156 |
171 |
197 |
200 |
272 |
10 |
0 |
0 |
0 |
0 |
0 |
32 |
137 |
283 |
348 |
421 |
288 |
230 |
National Average |
0 |
228 |
72 |
58 |
129 |
179 |
224 |
281 |
262 |
268 |
271 |
287 |
Congress has recently taken a renewed interest in
dealing with the problem of aged cases at FHAPs. In making recommendations
for funding of FHAPs, the House Appropriations Committee wrote:
"Funding has been provided above the request for case processing
and related activities to enable FHAP agencies to continue to make
progress in reducing the backlog of existing cases which remain
unsolved for over 100 days."124
This congressional attention and additional funding are remarkable,
given that FHAPs in FY 2000 are taking an average of only 220 days
from filing to resolve complaints. It is almost as if Congress is
unaware that HUD's aged case problem--at 497 days from filing to
closure--is much more critical.
Finding IV.D.3: Congress appears to be unaware of the
scope of HUD's aged case problem and the effect it has on complainants
and public confidence in the administrative enforcement system.
Recommendation IV.D.3: Congress should closely scrutinize
HUD's aged case portfolio and provide oversight and funding to correct
it.
4. Age to Closure
As previously mentioned, HUD and the FHAPs use four
primary methods of closing fair housing complaints: (1) administrative
closure, (2) conciliation, (3) no cause finding, and (4) cause finding.
The following pages analyze case processing times for the last three
of these categories. At every stage of the process, HUD and the
FHAPs are failing to meet the time lines set out in the FHA. The
100-day letters referred to tell only a part of the story; once
a case exceeds 100 days from filing, there are no ongoing requirements
that HUD or a FHAP report to complainants or respondents about the
status of the case. Often, when investigations take more than 500
days, the dearth of communication with the parties effectively sends
the message that no work is being done toward resolving the underlying
complaint.
Finding IV.D.4.a: Congress required the HUD Secretary
to send the 100-day letters only where it was "impracticable" to
complete an investigation within 100 days, but the drafters of the
FHAA did not anticipate that such a large percentage of the inventory
would exceed the statutory deadlines. At present, the 100-day letters
are the rule, rather than the rare exception Congress intended.
In essence, the letters have become a formality observed in almost
every case. HUD's intermittent reporting of these facts to Congress
may have made it more difficult for the oversight committees to
understand and respond to the aged case crisis.
Finding IV.D.4.b: At every stage of the process, HUD
and the FHAPs are failing to meet the time lines set out in the
FHA. The 100-day letters tell only a part of the story; once a case
exceeds 100 days from filing, there are no ongoing requirements
that HUD or an FHAP report to complainants or respondents about
the status of a case. Often, when investigations take more than
500 days, the dearth of communication with the parties effectively
sends the message that no work is being done toward resolving the
underlying complaint.
a. Age to Conciliation
Even the simplest kind of case, in which both complainant
and respondent agree to conciliate their differences, has historically
taken HUD much longer than 100 days. In fact, the use of the claims
process--which was supposed to weed out weaker cases and leave more
staff time to deal with cases that had some merit--caused average
conciliation time to swell from 172 days in FY 1995 (pre-claims
process) to 314 days in FY 2000 (see Chart IV-16).
[D]
Through FY 1994, HUD was able to conciliate
cases in 150 days or fewer. Beginning in FY 1995, the time it took
to resolve complaints began to increase dramatically, finally reaching
314 days in FY 2000. There appears to be no clear correlation between
the prevalence of conciliations and the time expended to close a
conciliated case. For example, in FY 1992, HUD successfully conciliated
2,058 cases, or 32 percent of all complaints (582 of these cases
alleged disability discrimination, representing 33 percent of all
such cases). That year, the average age of all conciliated cases
was less than 100 days. This was accomplished at a time when FHEO
had 309 full-time equivalents (FTEs) devoted to enforcement. In
FY 2000, HUD conciliated only 904 cases, or 41 percent of all complaints
(324 of these complaints alleged disability discrimination, representing
48 percent of all conciliated cases). The FY 2000 average age of
conciliated cases was 314 days at a time when HUD had 319 FTEs devoted
to enforcement.
During the past two fiscal years, FHAPs have been
able to conciliate cases four to five months faster than HUD (see
Chart IV-17).
[D]
Finding IV.D.4.c: Through FY 1994, HUD was
able to conciliate cases in 150 days or fewer. Beginning in FY 1995,
the time it took to resolve complaints began to increase dramatically,
finally reaching 314 days in FY 2000. There appears to be no clear
correlation between the prevalence of conciliations and the time
expended to close a conciliated case. For example, in FY 1992, HUD
successfully conciliated 2,058 cases, or 32 percent of all complaints
(582 of these cases alleged disability discrimination, representing
33 percent of all conciliated cases). That year, the average age
of all conciliated cases was less than 100 days. This was accomplished
at a time when FHEO had 309 FTEs devoted to enforcement. In FY 2000,
HUD conciliated only 904 cases, or 41 percent of all complaints
(324 of these complaints alleged disability discrimination, representing
48 percent of all conciliated cases). The FY 2000 average age of
conciliated cases was 314 days, at a time when HUD had 319 FTEs
devoted to enforcement.
Finding IV.D.4.d: During the past two fiscal years,
FHAPs have been able to conciliate cases four to five months faster
than HUD.
Recommendation IV.D.4.a: HUD should analyze its management
practices to determine why case handling has become so inefficient
and should report its findings to Congress and the public.
Recommendation IV.D.4.b: HUD should identify best practices
among HUBs and FHAPs concerning the rapid conciliation of cases
(especially disability cases) and require HUBs and FHAPs that do
not already do so to use these practices.
b. Age to No Cause
As with conciliated cases, HUD has taken longer and
longer to close complaints with findings of no cause. In order to
make a no cause finding, HUD has to fully investigate a complaint
and conclude that no reasonable person could determine that there
was probable cause to believe discrimination had occurred.
The time HUD has taken to make no cause determinations
has skyrocketed in recent years. In FY 2000, it took HUD 656 days
to "no cause" a case, inexplicably 30 percent longer than it took
to find cause,125
even though both findings are predicated on the same kind of investigation
(see Chart IV-18).
[D]
The claims process appears not to have helped
HUD reach no cause decisions faster. In fact, at the end of the
five-year claims period, no cause decisions took 35 percent longer
than during the first year.
Finding IV.D.4.e: In FY 2000, with 319 enforcement
FTEs, it took HUD more than 650 days on average, and about 570 days
for a disability case, to reach a finding of no cause.
Finding IV.D.4.f: By contrast, over the past four fiscal
years, FHAPs have actually brought down the average time to reach
a finding of no cause to 258 days, or more than a year faster than
HUD in FY 2000.
Finding IV.D.4.g: The aging of cases amounts to a self-inflicted
wound: The longer it takes HUD to process a case, the more likely
witnesses and evidence will evaporate, the more likely a case will
remain idle in HUD's inventory, and the more likely HUD will have
to consign it to administrative closure or terminate it as a no
cause case.
Recommendation IV.D.4.c: HUD should determine how FHAPs
have been able to reach determinations of no cause in less than
half the time it takes HUD and should implement practices to ensure
that HUD cases are treated as expeditiously.
Recommendation IV.D.4.d: Congress should earmark funding
for HUD to substantially reduce its aged case portfolio and to ensure
that the problem does not recur.
c. Age of Cause Cases
HUD takes five times as long to make cause determinations
as Congress intended when it passed the FHAA, although they require
at least the same level of investigation as no cause cases. In FY
2000, HUD made cause determinations about 150 days faster on average
(and 75 days faster on average for disability complaints).
Chart IV-19 demonstrates that it has consistently
taken HUD a long time to reach a cause determination.
[D]
As indicated, FHAPs have been able to process
fair housing complaints more quickly than HUD. In the last four
years for which data are available, FHAPs have investigated and
closed cases about 100 days faster than HUD. With respect to disability
claims, FHAPs work more quickly as well, averaging 75 fewer days
than HUD per disability complaint. Like HUD in FY 2000, FHAPs appear
to be making cause determinations slightly faster than no cause
determinations (see Appendix IV-4).
Finding IV.D.4.h: HUD takes five times as long to make
cause determinations as Congress intended when it passed the FHAA,
although they require at least the same level of investigation as
no cause cases. In FY 2000, HUD made cause determinations about
150 days faster on average (and 75 days faster on average for disability
complaints).
Recommendation IV.D.4.e: HUD should analyze the success
of FHAPs in reaching cause determinations more quickly than the
HUBs and should require HUBs to incorporate these best practices.
Recommendation IV.D.4.f: Congress should require HUD
to take immediate steps to assess the reasons for the aged case
problem at HUBs and FHAPs. Congress should then provide adequate
funding to support a corrective plan to ensure that investigations
and cause or no cause determinations are made within 100 days of
a complaint being filed.
E. Financial and Other Relief Made Available to
Victims of Discrimination
The following tables reflect only HUD- and FHAP-conciliated
cases, which are the only cases for which HUD supplied data. The
tables do reflect monetary and other relief secured through ALJ
proceedings or representation in court by the Department of Justice.
While total compensation in fair housing cases has gone up (see
Table IV-14), it appears to be going to fewer and fewer people (see
Table IV-15).
Further analysis of the data suggest that a very small
number of cases are resulting in significant monetary awards. When
a handful of very large settlements between FY 1997 and FY 2000
are excluded (including a single fair lending settlement that yielded
$21 million in monetary relief), the average award per case is exceedingly
modest (see Table IV-16).
Over the past 12 years, the average conciliated disability
case has brought very modest monetary relief to complainants. HUD
conciliations have yielded an average of $6,732 per case; FHAP conciliations
have resulted in average compensation of $3,932 (see Table IV-17).
Table IV-14: Total Monetary Compensation, by Year
|
1989 |
1990 |
1991 |
1992 |
1993 |
1994 |
1995 |
1996 |
1997 |
1998 |
1999 |
2000 |
1990-2000 |
HUD |
N/A |
1,601,480 |
1,800,530 |
2,261,365 |
2,267,044 |
1,951,853 |
2,429,975 |
4,407,300 |
9,679,627 |
6,512,145 |
6,206,601 |
23,883,090 |
63,001,010 |
FHAP |
N/A |
362,477 |
491,628 |
579,441 |
557,363 |
1,004,242 |
1,845,421 |
3,973,947 |
3,227,795 |
3,863,689 |
2,565,150 |
1,514,056 |
19,985,209 |
National
Total |
|
1,963,957 |
2,292,158 |
2,840,806 |
2,824,407 |
2,956,095 |
4,275,396 |
8,381,247 |
12,907,422 |
10,375,834 |
8,771,751 |
25,397,146 |
82,986,219 |
Table IV-15: Number of Cases with Monetary Compensation,
by Year
|
1989 |
1990 |
1991 |
1992 |
1993 |
1994 |
1995 |
1996 |
1997 |
1998 |
1999 |
2000 |
1989-2000 |
HUD |
218 |
828 |
920 |
997 |
951 |
883 |
758 |
632 |
471 |
349 |
461 |
400 |
7868 |
FHAP |
229 |
401 |
438 |
544 |
421 |
611 |
987 |
1067 |
1042 |
893 |
652 |
590 |
7875 |
National
Total |
447 |
1229 |
1358 |
1541 |
1372 |
1494 |
1745 |
1699 |
1513 |
1242 |
1113 |
990 |
15743 |
Table IV-16: Average Compensation in Conciliated
Cases (in dollars)
|
1989 |
1990 |
1991 |
1992 |
1993 |
1994 |
1995 |
1996 |
1997 |
1998 |
1999 |
2000 |
Race/HUD |
2,697 |
2,905 |
3,106 |
4,314 |
2,908 |
2,022 |
4,603 |
14,940 |
57,416 |
25,371 |
8,929 |
7,277 |
Race/FHAPs |
1,310 |
1,207 |
1,570 |
1,235 |
1,932 |
2,240 |
2,354 |
2,552 |
6,060 |
2,085 |
4,903 |
3,008 |
Sex/HUD |
780 |
1,354 |
3,058 |
2,393 |
2,447 |
2,784 |
4,736 |
17,710 |
4,534 |
3,156 |
17,553 |
7,337 |
Sex/FHAPs |
1,632 |
1,205 |
672 |
1,284 |
1,284 |
1,521 |
1,551 |
1,326 |
2,118 |
1,716 |
2,067 |
1,998 |
Color/HUD |
925 |
1,206 |
4,339 |
971 |
1,249 |
1,773 |
3,483 |
58,189 |
7,958 |
112,708 |
10,370 |
13,587 |
Color/FHAPs |
1,880 |
1,624 |
1,698 |
1,652 |
4,046 |
1,860 |
5,076 |
1,807 |
19,796 |
4,205 |
2,264 |
2,266 |
Origin/HUD |
7,544 |
1,308 |
1,327 |
1,276 |
1,976 |
2,278 |
5,763 |
29,748 |
160,683 |
74,552 |
91,081 |
781,366 |
Origin/FHAPs |
1,582 |
588 |
941 |
2,402 |
701 |
2,521 |
1,768 |
1,429 |
16,625 |
3,175 |
1,936 |
1,034 |
Handicap/HUD |
799 |
2,738 |
1,732 |
2,550 |
3,304 |
2,696 |
4,604 |
21,344 |
11,975 |
15,727 |
6,741 |
10,112 |
Handicap/FHAPs |
0 |
0 |
0 |
228 |
1,707 |
860 |
3,737 |
1,556 |
2,381 |
10,588 |
4,742 |
2,518 |
Familial
Status/HUD |
1,564 |
2,057 |
2,512 |
2,221 |
3,483 |
3,183 |
2,381 |
2,200 |
3,141 |
3,524 |
2,740 |
3,934 |
Familial
Status/FHAPs |
0 |
0 |
514 |
1,326 |
1,542 |
2,087 |
1,480 |
8,051 |
1,920 |
2,251 |
2,510 |
1,924 |
Religion/HUD |
0 |
433 |
1,452 |
3,308 |
1,621 |
1,250 |
1,003 |
941 |
1,458 |
2,686 |
7,250 |
1,700 |
Religion/FHAPs |
2,874 |
569 |
800 |
1,329 |
422 |
317 |
2,659 |
1,052 |
1,672 |
1,851 |
1,051 |
1,063 |
Table IV-17: Average Compensation per Conciliated
Case, 1989-2000 (inEdollars)
Basis/Processing Authority |
Compensation Per Case |
Race/HUD |
9,191 |
Race/FHAPs |
2,638 |
Sex/HUD |
5,234 |
Sex/FHAPs |
1,518 |
Color/HUD |
18,492 |
Color/FHAPs |
4,329 |
Origin/HUD |
68,006 |
Origin/FHAPs |
3,298 |
Handicap/HUD |
6,732 |
Handicap/FHAPs |
3,932 |
Familial Status/HUD |
2,587 |
Familial Status/FHAPs |
3,033 |
Religion/HUD |
1,637 |
Religion/FHAPs |
1,520 |
Finding IV.E.1: With respect to monetary compensation
to victims of discrimination, total compensation and average compensation
have increased, but largely because of a small number of large settlements
in fair lending and design and construction cases. Excluding a single
lending settlement in FY 2000, total compensation and average compensation
per HUD case would have fallen to historic lows.
Finding IV.E.2: Monetary compensation seems to be benefiting
fewer and fewer complainants, declining from a high of 997 HUD cases
in FY 1992 to only 400 HUD cases in FY 2000. FHAPs followed a similar
path, from a high of 1,067 cases in FY 1996 to only 590 cases in
FY 2000.
Finding IV.E.3: Among HUD-processed complaints since
1989, average disability compensation ($6,732 per conciliated case)
ranks fourth behind national origin, color, and race. Among FHAP-processed
complaints since 1989, average disability compensation ($3,932 per
conciliated case) ranks second behind color.
Recommendation IV.E.1: HUD should focus its resources
on securing resolution of (and compensation in) a broad range of
fair housing complaints rather than focusing on settlement of cases
designed primarily to garner the most publicity for the agency.
Recommendation IV.E.2: HUD should identify best practices
in each area above and attempt to replicate these practices across
its enforcement programs. For example, if a region or FHAP is doing
a particularly good job regarding quick processing or good conciliations
or high levels of monetary compensation or good disability outreach,
HUD should try to bottle it and make it available to the entire
fair housing community, beginning with HUBs and FHAPs but including
FHIPs and other advocates.
As with other indices, compensation in conciliated
cases varies dramatically from HUB to HUB (see Table IV-18). The
highest average awards have come from Atlanta, Denver, and Chicago.
These averages appear to be higher because of the settlement of
four design and construction cases credited to Atlanta (FY 1996
and FY 1997), Denver (FY 1998), and Chicago (FY 1996). Without these,
average awards would have been significantly lower.
FHAPs experience similar variations (see Table IV-19).
FHAPs in the Atlanta region have the highest cumulative average
from FY 1989 through FY 2000, influenced in part by a design and
construction settlement in FY 1998.
In response to a draft of this report, HUD suggested
that the performance of HUBs and FHAP regions might be influenced
by the geographic location of strong disability advocacy organizations.
While NCD did not have sufficient data to determine the validity
of this hypothesis, it attempted to test it in light of its own
knowledge that there were such advocacy organizations in Chicago,
Denver, and Philadelphia. If the hypothesis were correct, one might
expect to see larger numbers of disability complaints and higher
monetary compensation per case at both HUD and FHAPs in those regions,
which is not the case (Table IV-20).
Table IV-18: Monetary Compensation in HUD Conciliated
Disability Cases, by Year, by HUB
(Average Compensation per Case)
|
1989 |
1990 |
1991 |
1992 |
1993 |
1994 |
1995 |
1996 |
1997 |
1998 |
1999 |
2000 |
Cumulative
Average
1989-2001 |
Boston |
798 |
796 |
6,190 |
1,313 |
1,487 |
950 |
15,732 |
6,975 |
2,022 |
11,010 |
2,775 |
1,944 |
3,933 |
New York |
0 |
1,597 |
957 |
7,924 |
1,376 |
17,000 |
1,523 |
1,871 |
2,834 |
5,805 |
13,544 |
1,978 |
4,706 |
Philadelphia |
0 |
709 |
1,581 |
9,768 |
7,512 |
5,623 |
7,992 |
23,026 |
6,300 |
30,937 |
9,193 |
0 |
7,975 |
Atlanta |
650 |
347 |
2,597 |
2,625 |
574 |
4,113 |
2,768 |
113,456 |
154,370 |
3,000 |
7,884 |
5,418 |
17,931 |
Chicago |
322 |
2,217 |
768 |
1,780 |
1,514 |
1,725 |
3,074 |
68,441 |
6,439 |
9,972 |
4,830 |
4,300 |
8,731 |
Ft. Worth |
500 |
1,150 |
1,161 |
685 |
333 |
1,081 |
2,417 |
2,066 |
845 |
930 |
3,265 |
1,550 |
1,493 |
Kansas
City |
847 |
7,693 |
1,306 |
4,072 |
3,111 |
943 |
2,390 |
576 |
7,005 |
17,353 |
6,745 |
6,837 |
4,251 |
Denver |
68 |
293 |
624 |
827 |
1,859 |
1,745 |
1,215 |
2,903 |
2,616 |
57,455 |
4,751 |
30,042 |
9,175 |
San Francisco |
963 |
6,808 |
1,960 |
808 |
1,927 |
5,533 |
18,424 |
2,526 |
11,119 |
9,075 |
14,207 |
15,337 |
8,468 |
Seattle |
1,685 |
1,702 |
490 |
2,635 |
12,895 |
1,053 |
2,146 |
2,624 |
5,937 |
1,969 |
5,410 |
3,237 |
3,633 |
National |
799 |
2,738 |
1,732 |
2,550 |
3,304 |
2,696 |
4,604 |
21,344 |
11,975 |
15,727 |
6,741 |
10,112 |
6,732 |
Table IV-19: Monetary Compensation in FHAP
Conciliated Disability Cases, by Year, by HUB
(Average Compensation per Case)
|
1989 |
1990 |
1991 |
1992 |
1993 |
1994 |
1995 |
1996 |
1997 |
1998 |
1999 |
2000 |
Cumulative
Average
1989-2001 |
Boston |
0 |
0 |
0 |
0 |
1,175 |
1,604 |
2,853 |
2,461 |
1,992 |
2,060 |
4,321 |
6,368 |
3,212 |
New York |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
795 |
795 |
Philadelphia |
0 |
0 |
0 |
0 |
381 |
1,519 |
9,731 |
2,281 |
5,720 |
4,762 |
12,114 |
1,098 |
5,346 |
Atlanta |
0 |
0 |
0 |
0 |
1,642 |
946 |
1,342 |
671 |
1,215 |
74,367 |
19,279 |
1,637 |
16,451 |
Chicago |
0 |
0 |
0 |
233 |
5,013 |
609 |
1,264 |
1,462 |
1,318 |
1,181 |
1,799 |
1,148 |
1,319 |
Ft. Worth |
0 |
0 |
0 |
226 |
181 |
286 |
853 |
1,475 |
268 |
1,280 |
2,462 |
982 |
1,154 |
Kansas
City |
0 |
0 |
0 |
0 |
263 |
595 |
332 |
650 |
684 |
827 |
2,770 |
1,287 |
1,261 |
Denver |
0 |
0 |
0 |
0 |
375 |
391 |
1,407 |
971 |
1,090 |
1,985 |
2,783 |
1,827 |
1,260 |
San Francisco |
0 |
0 |
0 |
0 |
7,948 |
1,870 |
7,623 |
1,551 |
4,531 |
5,756 |
1,814 |
3,205 |
3,840 |
Seattle |
0 |
0 |
0 |
0 |
0 |
0 |
876 |
2,849 |
1,338 |
1,066 |
6,18 |
1,397 |
1,439 |
National |
0 |
0 |
0 |
228 |
1,707 |
860 |
3,737 |
1,556 |
2,381 |
10,588 |
4,742 |
2,518 |
3,932 |
Table IV-20: Comparison of HUD and FHAP Regions
with Respect to Monetary Compensation
|
HUD
CONCILIATED DISABILITY CASES |
FHAP
CONCILIATED DISABILITY CASES |
HUB/
REGION |
# CASES WITH
MONETARY
COMPENSATION
FY 1989-2000 |
TOTAL
COMPENSATION
FY 1989-2000 |
AVERAGE
COMPENSATION
FY 1989-2000 |
# CASES WITH
MONETARY
COMPENSATION
FY 1989-2000 |
TOTAL
COMPENSATION
FY 1989-2000
|
AVERAGE
COMPENSATION
FY 1989-2000 |
Boston |
95 |
$373,629 |
$3,933 |
71 |
$228,045 |
$3,212 |
New York |
75 |
352,981 |
4,706 |
3 |
2,385 |
795 |
Philadelphia |
86 |
685,832 |
7,975 |
86 |
459,725 |
5,346 |
Atlanta |
92 |
1,649,687 |
17,931 |
100 |
1,645,155 |
16,451 |
Chicago |
207 |
1,807,323 |
8,731 |
120 |
158,220 |
1,319 |
Ft. Worth |
133 |
198,596 |
1,493 |
126 |
145,341 |
1,154 |
Kansas
City |
216 |
918,225 |
4,251 |
89 |
112,196 |
1,261 |
Denver |
139 |
1,275,355 |
9,175 |
87 |
109,604 |
1,260 |
San Francisco |
135 |
1,143,164 |
8,468 |
212 |
814,231 |
3,840 |
Seattle |
153 |
555,585 |
3,633 |
64 |
92,112 |
1,439 |
National |
1,331 |
$8,960,650 |
$6,732 |
958 |
$3,767,014 |
$3,932 |
No clear pattern emerged from this analysis. The Kansas
City HUB had the highest raw number of disability conciliations,
but its per-case monetary relief was well below the national average.
Chicago, with the largest HUD-served population of any HUB, had
the second highest number of cases and a per-case amount above the
national average. Denver had a moderate number of cases, but its
conciliation awards were higher than any other HUB except Atlanta
(which had two large design and construction settlements). Philadelphia
had fairly few HUD disability conciliations (as would be expected,
given that every state in its service area has an FHAP) but monetary
compensation above the national average. On the FHAP side, San Francisco,
Ft. Worth, and Chicago led in terms of complaints filed, but Atlanta,
Philadelphia, and San Francisco had the highest per-case compensation.
Neither Illinois nor Chicago has substantially equivalent
agencies, so it is not surprising that FHAPs in the Chicago region
have very few disability conciliations and very low settlement awards.
Colorado and Pennsylvania, however, do have FHAPs, so one would
expect the existence of strong disability groups in Denver and Philadelphia
to move these FHAPs to the top of the list. In fact, FHAPs in the
Philadelphia region have a fairly small number of these cases, with
monetary compensation well above the national average. FHAPs in
the Denver region have few disability conciliations and very small
monetary settlements.126
In addition to monetary relief, HUD also keeps data
on the number of cases in which complainants use conciliation to
get "housing relief," typically defined as getting a rental unit
or being able to purchase a home as a result of the conciliation.
The number of cases in which complainants in the HUD system are
getting housing relief has gone down dramatically since FY 1992
(see Appendix IV-5).
F. Other Enforcement Options
1. Secretary-Initiated Complaints
As part of its design to strengthen the ability of
HUD to eradicate housing discrimination, Congress authorized fair
housing complaints initiated by the Secretary. The FHAA provides:
The Secretary may also investigate housing practices
to determine whether a complaint should be brought under this
section.127
This authority is particularly important in cases
where a bona fide complainant is unlikely to come forward, either
because of the personal peril involved or because a discriminatory
practice harms a fairly large number of individuals but the damages
to each may be difficult to calculate. In this latter sense, the
Secretary-initiated complaint parallels the "pattern and practice"
jurisdiction that has been available to the Department of Justice
since 1968.
FHEO recognized the appropriateness of a Secretary-initiated
complaint in at least one other context: the request by a complainant
to withdraw a complaint based on a private settlement. In 1994 guidance,
FHEO noted its disfavor toward such settlements entered into without
HUD supervision, especially with respect to discriminatory practices
that may affect the public interest rather than the interest of
just one individual. In such instances,
If the relief for the complainant is as good as
relief which could have been accomplished through the conciliation
process, the complaint may be closed. However, consideration of
whether or not systemic relief should have been provided should
also occur. ... A Secretary-initiated complaint to address policy
or practice issues unresolved by the individual settlement may
be recommended as a result of this review. ... If the relief for
the complainant appears to be inadequate, the agreement should
be evaluated also to determine whether it contains provisions
by which the complainant gives up legal rights to pursue an administrative
complaint. If the agreement contains such a provision, and if
it is worded broadly enough to cover the events that are the subject
of the complaint, it may bar further action even if the relief
is clearly inadequate, unless it was fraudulently or illegally
induced. Consult with counsel if there is any question regarding
the effect of particular language. If the language serves as a
bar, the case should be closed, using the same considerations
described regarding withdrawals without resolution, including,
specifically, the assessment of the case to determine whether
a Secretary-initiated complaint may be appropriate to address
matters that involve the public interest.128
In its FY 1997 Management Plan, FHEO explicitly endorsed
the expanded use of Secretary-initiated complaints. One of its action
plans reads as follows:
Reduce the incidence of discrimination based on
race, national origin or disability by initiating at least 10
Secretary-initiated complaints or systemic investigations designed
to address homeownership or low income rental housing issues.129
Despite the availability of this enforcement tool,
there have been only two Secretary-initiated complaints in the field
of disability since 1988, both design and construction cases that
were settled after issuance of charges of discrimination.130
No action was taken to pursue the action plan described in FHEO's
FY 1997 Management Plan. In fact, FHEO operated as if it lacked
the authority altogether.131
Finding IV.F.1: Despite clear authority in the FHAA,
HUD has used the Secretary-initiated complaint option on only two
occasions.
Recommendation IV.F.1: As part of its comprehensive
effort to more effectively enforce the FHA, HUD should make much
more extensive use of Secretary-initiated complaints.
2. Proceedings Before Administrative Law Judges
While Congress was very concerned about the constitutional
issues related to administrative hearings for fair housing complaints,
very few cases have actually been adjudicated by ALJs.132
HUD reports that ALJs have handled a total of 508 cases from FY
1989 through FY 2000. Of this number, 375 were resolved by consent
order and 35 were dismissed by the ALJ. Of the remaining 98 cases133
that received full ALJ hearings, discrimination was found to have
occurred in 80, and a finding of no discrimination was made in 18.
The underuse of the ALJ system has troubled commentators.
In its 1999 report, the Citizens' Commission on Civil Rights found:
The number of cases tried to decision before HUD
administrative law judges (ALJs) decreased substantially over
the last two years. This decline was due to a decrease in the
number of cases charged and an increase in the number of complainants
and respondents electing to have charged cases prosecuted by the
Department of Justice. In 1996, parties elected to have 70 percent
of charged cases handled by the Justice Department. In 1997, the
election rate decreased slightly, but still remained at the surprisingly
high rate of 61 percent. The end result has been an underutilization
of the HUD administrative law judge hearing process that in recent
months has, sadly, left HUD's highly competent and skilled ALJs
all but looking for more work.134
Those cases that were heard by ALJs "were more likely
to be resolved on the merits; almost one in five were decided in
favor of the complainant; and 3.5 percent were decided for the respondent.
... Rates of settlement ... [were] 67.7 percent of the cases that
remained within the jurisdiction of the ALJs in HUD."135
HUD reports that 72 of its 508 ALJ cases (roughly
14 percent) involved allegations of disability discrimination. Of
this number, 55 were resolved by consent order, 8 resulted in ALJ
dismissals, 9 in findings of discrimination, and none in findings
of no discrimination. While consent orders are public documents,
they are not generally available, and review of them was beyond
the scope of this report. HUD lists only 13 disability ALJ decisions
on its Web site: http://www.hud.gov/alj/aljhandi.cfm. Ten of these
resulted in findings that discrimination had occurred, and two resulted
in dismissals by the ALJ. There were no reported ALJ decisions in
disability cases during 1989, 1990, 1996 and 1999.
Table IV-21 provides details on the outcomes of those
12 cases.
Table IV-21: Outcomes in ALJ Disability Cases
Fiscal
Year |
Case Name (Decision Date) |
Outcome |
Damages |
Civil Penalty |
1991 |
Secretary v. George (8/16/91) |
Discrimination |
$1,000 |
$500
|
1991 |
Secretary v. Williams (3/22/91) |
Discrimination |
$1,000 |
$500
|
1992 |
Secretary v. Dedham Housing Authority
(11/15/91) |
Discrimination |
$12,100 |
$10,000 |
1993 |
Secretary v. Mercantile-Safe Deposit &
Trust Co. (6/10/93) |
Dismissed |
N/A |
N/A |
1993 |
Secretary v. Ocean Sands (9/3/93) |
Discrimination |
$19,871 |
$3,500 |
1994 |
Secretary v. Burns (6/17/94) |
Discrimination |
$81,556 |
$1,600 |
1994 |
Secretary v. Riverbay (9/8/94) |
Discrimination |
$2,500 |
$5,000 |
1995 |
Secretary v. Jankowski & Lee Associates
(6/30/95) |
Discrimination |
$2,500 |
$2,500 |
1997 |
Secretary v. Dutra (11/12/96) |
Discrimination |
$5,659 |
$5,000 |
1997 |
Secretary v. Pheasant Ridge (10/25/96) |
Discrimination |
$50,452 |
$20,000 |
1998 |
Secretary v. Perland (3/30/98) |
Discrimination |
$15,916* |
$3,000 |
2000 |
Secretary v. Blue Meadows Limited Partnership
(7/5/00) |
Dismissed |
N/A |
N/A |
* Includes a contingent retrofit fund of $10,000.
Finding IV.F.2.a: The relative dearth of cause
findings has meant that few complaints ever reach an ALJ hearing.
Finding IV.F.2.b: Because of the low caseloads, the
expertise of HUD ALJs is drastically underused.
Recommendation IV.F.2: As part of a comprehensive plan
to more effectively enforce the FHA, HUD should strive to increase
its use of ALJs by processing cases more quickly and issuing charges
in a greater percentage of cases.
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