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Steps to Take If You Think You Have Been Discriminated Against

 

If you know or suspect that you have been discriminated against, it is important to act quickly. Here are steps that you can take to protect your rights.

Write Down the Facts Immediately

As soon as you feel you have been discriminated against, write down everything that happened. The more information, the better. Write down:

  • The date and time of day when the discrimination occurred.
  • The address and phone number of the people you dealt with.
  • The name or physical appearance of the persons to whom you spoke or whom you saw.
  • Everything you said.
  • Everything the other person said
    (include all the details, even if they don't seem very important).
  • If you answered a newspaper ad and you still have or can get the newspaper, save that whole page.
  • The names and addresses of anyone, such as a friend, family member, co-worker, who witnessed your meeting or conversation with the other person.
  • How it felt to be denied the apartment or otherwise be the victim of discrimination.

Your notes are very important. First, you may not remember all the details later. Second, your notes describing exactly what happened, and written as soon as possible after the discrimination occurred, can be your strongest evidence. Third, if you want to have an organization conduct a test for you to try to figure out whether you were discriminated against, your notes will be very useful in planning the test.

Get a Test Done Quickly

What Is Testing

Testing is a method of investigating a landlord or real estate agent's behavior to help determine whether that person is illegally discriminating against you. For example, suppose a landlord denied you housing. Despite the reason the landlord gave for denying you housing, you think that the real reason was because you are Latino. You then contact an agency that does testing. They can send two testers to the same landlord to seek housing. One tester will be Latino and one tester will be white. In all other respects the testers will present similar characteristics. Both testers will give information similar to yours about income, number of people in the household, type and price of housing sought, etc. In other words, the testers will be similar in most of the important characteristics except the characteristic that you think explains the denial of housing.

After the test is done, each tester will write down everything that happened to her. Their experiences will then be compared to see if the white tester got different and better treatment than did the Latino tester. If so, the test can be crucial evidence in proving that you were discriminated against because you are Latino.51 Testers can be used to investigate complaints of any of the types of unlawful housing discrimination.52

Getting a Tester

Try to arrange to have a test done on the very day you have had a problem. The longer you wait, the harder it will be to accurately compare the experience of a tester with your experience. Also, if what you most want is a particular apartment, the longer you delay, the better the chance that the apartment will be rented to someone else.

To get a test done in Greater Boston— Norfolk, Suffolk, Middlesex, Essex, or Plymouth County, contact:

The Fair Housing Center of Greater Boston
59 Temple Place, Suite 1005
Boston, MA 02111
617-399-0491

To get a test done in Hampden, Hampshire, Franklin, or Berkshire County, contact

Massachusetts Fair Housing Center
57 Suffolk Street
Holyoke, MA 01040
413-539-9796 or 800-675-7309

To get a test done in Worcester County, contact

Legal Assistance Corporation of Central Massachusetts
405 Main St.
Worcester, MA 01608
508-752-3718
800-649-3718

If you cannot find an organization to do a test for you, you can arrange your own test. For example, if you suspect you are being discriminated against because you have Section 8, quickly get someone to ask to see the apartment who says that she does not have Section 8 and has the same family size and income as you. Then compare what the landlord told each of you. Or, if you think that a landlord is refusing to rent to you because you have children, have a friend who claims to have no children ask to see and rent the apartment. Compare the treatment each of you receives. Both you and your tester should make detailed written notes of what happens.

How Can a Test Help

A test can produce important proof that you have been illegally discriminated against. You can use this information to file a complaint against the landlord. If a test indicates that you were, in fact, discriminated against and the apartment is still available, you can go into court and ask a judge to immediately forbid the landlord or broker from renting that apartment to anyone else while your case is being heard. If you decide to do this, you should contact a lawyer right away to help you file the right court papers.

Get Legal Advice

It is wise to get your own lawyer to represent you or advise you about how to proceed in a case involving discrimination. A lawyer can help you file a complaint, represent you at a hearing, help you through the complaint process, and advise you about whether to file a lawsuit. A lawyer is allowed to represent you at a hearing at the Massachusetts Commission Against Discrimination (MCAD) or U.S. Department of Housing and Urban Development (HUD), or in court.53

Also, HUD, MCAD, and most of the local fair housing commissions or committees must try to bring together you and the persons you have charged with discrimination to see if you can voluntarily work out the problem.54 While this can sometimes lead to a quick and satisfactory settlement, the process also has its dangers. Some government officials may pressure you to accept an agreement that is not really in your best interests. A lawyer can help you protect your interests. A number of organizations provide legal representation for housing discrimination complaints in government agency hearings and in court, including:

The Fair Housing Center of Greater Boston
59 Temple Place, Suite 1005
Boston, MA 02111
617-399-0491

Lawyers Committee for Civil Rights Under Law
(For discrimination based on race and national origin)
294 Washington St., 4th floor
Boston, MA 02109
617-482-1145

Legal Assistance Corporation of Central Massachusetts
405 Main St.
Worcester, MA 01608
508-752-3718
800-649-3718

Massachusetts Fair Housing Center
57 Suffolk Street
Holyoke, MA 01040
413-539-9796
800-675-7309

See the Directory for phone numbers of other lawyer referral services and legal services offices.

Note

At the time of the writing of this book, MCAD and HUD offices were underfunded and short-staffed. MCAD has a backlog of complaints, and investigations at HUD, which are supposed to be completed in 100 days, often take longer. If you have a lawyer, she can see whether the government is doing a thorough investigation of your complaint and can sometimes move your complaint along a little faster.

File a Complaint

If you think you have been discriminated against, you have the right to file a complaint directly with:

When deciding where to file a complaint, keep the following things in mind:

  • The various agencies have different deadlines for filing a complaint.
  • The federal law does not protect as many people as the state law does.
  • The federal law does not apply to as many different types of housing as the state law does.
  • Each law offers different remedies if you win your case (see the next section in this chapter called What You Might Win If You File a Complaint).
  • If you intend to bring a court action and are not in a great hurry, you may want to wait for MCAD to conduct and pay for an investigation before you file a lawsuit.
  • Refer to the chart in the section called What Is Illegal Discrimination for more information about where to file a complaint.

What You Might Win If You File a Complaint

MCAD, HUD, your local fair housing commission, and the courts have the power to award you different types of remedies. This section tells you what you can receive. The differences can be very important to you, depending on what you want.

Compensatory Damages
If you win your case, a hearing officer or a judge can order the person who has discriminated against you to pay you money. These are called compensatory damages because the purpose of this money is to compensate you for your injuries.58 Your injuries can include all the costs you had because of the discrimination, including the difference in rent between the apartment you were denied and one you finally rented, moving expenses, realtor fees, time lost from work, and any emotional distress you suffered. In many cases, people discriminated against suffer only small out-of-pocket expenses, but very great emotional distress.59 You and your lawyer should discuss this thoroughly.60

Injunction
An injunction is an order and does not include an award of money.61 A hearing officer or judge may order a person who is discriminating to stop doing certain things or to take certain actions to correct a problem. For example, if the apartment you wanted is available and you still want it, the person who discriminated against you may be ordered to rent it to you. Or, this person may be required to post notices of all her vacant apartment listings or advertise in a special way. The point of an injunction is to change the way a person who has discriminated does business so she won't discriminate against you or anyone else in the future. You are permitted to get both an injunction and compensatory damages.

Attorney's Fees
Although a private or nonprofit organization or legal services attorney may represent you at no cost, if you win your case a court or the hearing officer may order the loser to pay your attorney her fees. These fees would include all the time and expense your attorney spent investigating, preparing, and arguing your case. Awards of attorney's fees and costs are important since they help make it possible for private attorneys to represent victims of discrimination.

Punitive Damages
Punitive damages are money damages that a court orders someone to pay to you in order to punish the person who has discriminated against you for her conduct and to prevent her and others from conducting similar behavior in the future.62 Only a court can award you punitive damages. To get punitive damages, your attorney will usually have to show that a person intentionally discriminated against you.63 Since the purpose is punishment, the size of a punitive damage award will be based primarily on the financial condition of the person who discriminated against you. Usually, the more money the person you sue has, the larger the award.64

If you win your case at an MCAD or HUD hearing, you cannot receive punitive damages. However, the hearing officer may impose a civil penalty on the discriminator, which is paid into the government treasury.65

Filing a Complaint at MCAD

The Massachusetts Commission Against Discrimination (MCAD) is a state government agency that enforces state discrimination laws. You must file a complaint at MCAD within 300 days of being discriminated against.66 Before you go to MCAD's office, you should call and schedule an appointment. Call:
MCAD Boston Office
617-994-6000
MCAD Springfield Office
413-739-2145

When you go to MCAD, bring with you all documents that may be useful to MCAD in evaluating your case, including all notes you have made, copies of application forms, and newspaper ads. Once you file a complaint with MCAD, MCAD will also file your complaint at HUD if the discrimination violates federal law. In this case, you would be protected by both state and federal laws. Regardless of whether you file at MCAD, at HUD, or both, your case will be handled by MCAD unless:67

  • You have missed the 300-day filing deadline at MCAD, but not the one-year deadline for filing at HUD;
  • The housing is located in an area with a local fair housing agency that has been certified by HUD to handle complaints, in which case HUD will refer the complaint to this local agency.68 HUD may, however, decide to handle the complaint itself if the local agency requests or consents to this or the local agency does not begin to investigate the complaint within 30 days of receiving it.

MCAD staff must then investigate your case and send you and the person against whom you brought the complaint a report of its findings.69 If MCAD concludes that you have probably been discriminated against, you will have 20 days to choose whether to: (1) have a hearing at MCAD, or (2) file a lawsuit in state or federal court.70 MCAD will also invite you and the person against whom you have brought the complaint to a conciliation session to see if you can work out an agreement. In court, a lawyer from the Massachusetts Attorney General's office will represent the government on your behalf.

If you choose to have a hearing at MCAD, an MCAD attorney will be assigned to present your case. If you have your own attorney, she can argue your case at MCAD.

Filing a Complaint at HUD

HUD's Office of Fair Housing and Equal Opportunity in Boston handles discrimination complaints for all of Massachusetts. You have one year from the time you feel you were discriminated against to file a discrimination complaint at HUD. If HUD investigates your complaint and concludes that you have probably been discriminated against, you must choose within 20 days whether to: (1) have a HUD hearing, or (2) file a case in court.71 The person against whom you file a complaint also has the right to go to court. In court, the U.S. Attorney General's office will represent the government on your behalf.

A HUD complaint form is available at www.hud.gov/complaints/housediscrim.cfm.72 HUD is required to provide the person against whom you are filing a copy of your complaint. For help in filing a HUD complaint, call:
HUD Fair Housing Discrimination Complaint Hotline
800-669-9777; TDD 800-927-9275

Filing a Complaint with Your Local Fair Housing Commission

Many localities have human rights or fair housing commissions or committees. Only a few of these have enforcement powers. Even if a local commission or committee has no enforcement authority, you should still consider filing a complaint there. Agency personnel can often help you draft your complaint, can take care of filing it for you at MCAD or HUD, and can often informally investigate it. They may also help negotiate with a landlord or real estate firm on your behalf. To find out whether your community has a local fair housing agency, contact your city or town hall.

Filing a Complaint in Court

If you want to file a lawsuit against your landlord or whoever has discriminated against you, you can also choose to file a case in state or federal court. In state court, you must file a lawsuit within one year from the time you feel you were discriminated against.73 If you decide to go to court, it is best to have your own lawyer.

If you want to file a case in federal court, there are several things you need to consider. First, you must be alleging a violation of federal law. That is, you must believe that you were discriminated against because of your race, national origin, color, religion, sex, familial status, or mental or physical disability. Second, you must file your case within two years from the time you feel you were discriminated against.74 Federal court has many rules that must be followed by everyone who uses these courts. Therefore, it is best to have your own lawyer in federal court.

Fighting Discrimination Is the Government's Job

The job of attorneys at HUD, MCAD, the U.S. Attorney's office, and Massachusetts Attorney General's office is to represent the interests of the government on your behalf.75

Be very aware that your interests and those of the state or federal government may be different. For example, the government may be primarily interested in having the person who has discriminated change her practices and less interested than your own attorney would be in getting you compensated for your injury. Therefore, when you file a complaint, you should always try to get your own attorney to represent you in an agency proceeding or in any court action.

Endnotes

1. In this chapter, we focus on owners (and their employees and agents) and brokers or real estate agents who illegally discriminate in renting housing. The federal and state fair housing laws and court decisions prohibit discrimination by several other entities involved in housing, such as federal, state, and local governments, newspaper advertisers, banks and mortgage companies, insurance companies, appraisers, local governments that enact discriminatory zoning laws, and public housing authorities that refuse to administer certain housing subsidies. Discrimination in housing sales, financing, advertising, insuring, and appraising is also illegal. However, space constraints compel us to concentrate on owners and agents as these are the people tenants are most likely to deal with.

2. Federal Laws
Title VIII of the Civil Rights Act of 1968 (the federal Fair Housing Act), 42 U.S.C. §3601 et seq. The Fair Housing Act was amended by the Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, § 13(a), 102 Stat. 1636 (1988), which became effective March 12, 1989. These amendments added "familial status" and disability to the nondiscrimination provisions of the Fair Housing Act and greatly expanded the enforcement sections. See H. Comm. on the Judiciary, Fair Housing Amendments Act of 1988, H. Rep. No. 100-711 (1988), reprinted in 1988 U.S.C.C.A.N. 2173; 134 Cong. Rec. li491-6501 (daily ed. Aug. 8, 1988); 134 Cong. Rec. S10532-10569 (daily ed. Aug. 2, 1988); 134 Cong. Rec. H4898-4932 (daily ed. June 29, 1988) for a full presentation of the Congressional intent behind the amendments. The Fair Housing Act was most recently amended in 1995. Specifically, § 3607 was amended by the Housing for Older Persons Act of 1995, Pub. L. No. 104-76, § 1, 109 Stat. 187 (1995). Current provisions of the Act prohibit the following discriminatory practices against the groups protected by the Fair Housing Act: refusing to sell, rent, negotiate for, "or otherwise make unavailable or deny" a dwelling; discriminating in the "terms, conditions, or privileges of a sale or rental of a dwelling or in the provision of services or facilities in connection therewith"; making or publishing any discriminatory statement in regard to a sale or rental; misrepresenting the availability of a dwelling; inducing a person to sell or rent any dwelling by representations about the presence of members of a protected class in the neighborhood; and discriminating in access to real estate services. 42 U.S.C. §§3604, 3606.
The HUD regulations implementing the federal Fair Housing Act are at 24 C.F.R. §§100 et seq. Title VIII permits a complaint to be filed within two years in a U.S. district court or in state court or within one year at HUD. 42 U.S.C. §3610(a)(1)(A)(i); 42 U.S.C. §3613(a)(1)(A). If a timely complaint is filed with HUD, then the two-year court limitations period is tolled during the time that the HUD complaint is pending. 42 U.S.C. §3613(a)(1)(B). Certain single-family homes and all owner-occupied two-, three-, and four-family dwellings are exempted under 42 U.S.C. §3603(b), 24 C.F.R. §100.10(c). This exemption will not apply if any "statement or advertisement" is made, printed, or published or caused to be made printed, or published, with respect to the rental of a dwelling that indicates any preference, limitation, or discrimination on the grounds prohibited by Title VIII, 42 U.S.C. §§3603(b), 3604(c). Note that oral statements as well as written statements and advertisements are covered by this provision limiting the exemption for single-family homes and two-, three-, and four-family dwellings under Title VIII. See Mayers v. Ridley , 465 F.2d 630, 649 (D.C. Cir. 1972) (en banc) (Wilkey, J., concurring); see also id. at 633 (Skelly Wright J., concurring) and 24 C.F.R. §§100.75(b), 100.75(c)(2). Note also that there is no exemption from Title VIII for discrimination by those engaged in the business of selling, brokering, or appraising residential real property, 42 U.S.C. §§3605(a), 3605(b)(2) and 3606. Thus, although on occasions a landlord may be exempt from the provisions of Title VIII, her broker will never be.
Civil Rights Act of 1866, 42 U.S.C. §1982. Section 1982 protects American citizens against discrimination on the basis of race only. However, the U.S. Supreme Court has defined racial discrimination under §1982 broadly so that it will encompass many national origin claims and some religion claims. See Saint Francis College v. Al-Khazraji , 481 U.S. 604 (1987); Shaare Tefila Congregation v. Cobb , 481 U.S. 615 (1987). Section 1982 covers all housing—unlike state and federal fair housing laws, which exempt some units in small buildings. This law is not directly enforced by federal agencies, so victims of discrimination must sue in court, which may award compensatory and punitive damages as well as equitable relief and attorney's fees. This remedy is useful because the applicable statute of limitations for filing a §1982 action in federal or state court in Massachusetts is most likely three years, longer than that allowed for initial filings under the federal Fair Housing Act or G.L. c. 151B. Cf. Johnson v. Rodriguez , 943 F.2d 104, 107 (1st Cir. 1991), reh'g and reh'g en banc denied (1st Cir. Oct. 9, 1991), cert. denied, 502 U.S. 1063 (1992) (relying on Goodman v. Lukens Steel Co ., 482 U.S. 656 (1987) to hold that Massachusetts' three-year personal injury statute of limitations applies to §1981 claims). But see Sims v. Order of United Commercial Travelers of America , 343 F. Supp. 112, 115 (D. Mass. 1972) (applying Massachusetts' six-year contract statute of limitations to §1982 claims, but prior to Supreme Court's decision in Goodman ).
Civil Rights Act of 1866, 42 U.S.C. §1981. Section 1981 protects the rights of racial and ethnic minorities to make and enforce contracts, including leases. In contrast to §1982, the victim need not be an American citizen. The statute of limitations is three years. Johnson v. Rodriguez , 943 F.2d 104, 107 (1st Cir. 1991), reh'g and reh'g en banc denied (1st Cir. Oct. 9, 1991), cert. denied, 502 U.S. 1063 (1992).
Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000d et seq. (2000). "No person in the United States shall, on the ground of race, color, or national origin be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." The HUD implementing regulations are at 24 C.F.R. §1.1 et seq. Title VI itself requires intentional discrimination, but the HUD regulations may be satisfied by a showing of "disparate impact." Alexander v. Choate , 469 U.S. 287, 293 (1985), construing Guardians Ass'n v. Civil Serv. Comm'n of New York City. , 463 U.S. 582, 584 (1983).
This law is often more difficult to use than Title VIII (which also covers federally financed as well as private housing). It applies only to housing that has some federal financial assistance (such as federally financed public housing, Section 8 project-based or HUD-subsidized housing). While there is a private right of action under Title VI against state or local agencies that receive federal funds, see Guardians Association v. Civil Service Commission of New York City , 463 U.S. 582, 593-97, 624-28, 635-36 (1983), courts are not in agreement as to whether a private right of action is available against HUD or other federal agencies. See generally Clients' Council v. Pierce , 711 F.2d 1406, 1424 (8th Cir. 1983), reh'g and reh'g en banc denied (8th Cir. Sept. 15, 1983). Also, a private right of action is not available to enforce the federal regulations promulgated pursuant to Title VI. See Alexander v. Sandoval , 532 U.S. 275 (2001).
State Laws
G.L. c. 151B prohibits discrimination primarily in employment, housing, and some consumer and credit transactions. Ch. 151B, §§4(3B), (3C), (6)-(8), (10)-(11), (13), and (18) concern discrimination in housing against various protected groups.
Massachusetts Equal Rights Act, G.L. c. 93, §102(a), was enacted in 1989 and prohibits discrimination on the basis of race, color, creed, national origin, or sex in the making and enforcing of contracts and the purchase and renting of property. G.L. c. 93, §103 prohibits age and handicap discrimination and was added in 1990. For a general discussion of the Massachusetts Equal Rights Act, see 45 Mass. Prac. §§10.1-10.8 (Scott C. Moriearty, et al. 2008).
Massachusetts Civil Rights Act, G.L. c. 12, §11H, protects all persons from threats, intimidation, or coercion which interfere with rights secured by state or federal laws. For a general discussion of the Massachusetts Civil Rights Act, see 45 Mass. Prac. §§9.1-9.22 (Scott C. Moriearty, et al. 2008).
Massachusetts Consumer Protection Act, G.L. c. 93A, §§1-11, protects consumers from unfair or deceptive acts in the conduct of any "trade or commerce." Due to this qualification, small landlords may be exempt. See Billings v. Wilson , 397 Mass. 614 (1986); Sayah v. Hatzipetro , 397 Mass. 1004 (1986) (rescript); Young v. Patukonis , 24 Mass. App. Ct. 907 (1987) (rescript). A complaint must be filed within four years after first sending out the requisite demand letter. G.L. c. 260, §5A.

3. Federal Laws
Section 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C. §794 (Supp. IV 2004), prohibits discrimination on the basis of disability in programs and activities conducted by HUD or that receive financial assistance from HUD. 29 U.S.C. §794(a) provides that "[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . ." This law applies only to housing that receives federal financial assistance such as federally aided public housing or HUD- subsidized housing. The law also applies to state-aided or subsidized housing if the public housing agency receives any federal money for housing (which almost all do). See also HUD §504 regulations (at 24 C.F.R. §§8.1 et seq.).
Title II of the Americans with Disabilities Act of 1990, codified at 42 U.S.C. §12132, bans disability discrimination in services of state and local governments, whether or not they receive federal financial assistance.
State Laws
Chapter 722 of the Acts of 1989 modifies several provisions of Massachusetts law, most importantly, G.L. c. 151B, by extending to disabled persons the right to be free from housing discrimination, enhancing enforcement proceedings for all protected groups, and conforming state law to the federal Fair Housing Act.
Amendment Article 114 to the Massachusetts Constitution provides that "[n]o otherwise qualified handicapped individual shall, solely by reason of his handicap, be excluded from the participation in, denied the benefits of, or be subject to discrimination under any program or activity within the Commonwealth." Amendment Article 114 was approved and ratified on November 4, 1980. The language of the amendment applies to public and private conduct, thereby providing protection with respect to all types of housing regardless of any federal or state involvement and regardless of the size or type of housing.

4. M.G.L. c. 151B, §4, (6), (7)), prohibits discrimination in housing based on a tenant's "age," but the statute's protections do not apply to "minors nor to residency in state-aided or federally-aided housing developments for the elderly nor to residency in housing developments assisted under the federal low income housing tax credit and intended for use as housing for persons 55 years of age or over or 62 years of age or over, nor to residency in communities consisting of either a structure or structures constructed expressly for use as housing for persons 55 years of age or over or 62 years of age or over if the housing owner or manager register biennially with the department of housing and community development." The federal Fair Housing Act does not include "age" as a protected category.

5. The federal Fair Housing Act applies to "dwellings," which include any building "occupied as, or designed or intended for occupancy as, a residence by one or more families…." 42 U.S.C. §3602(b). The state anti-discrimination law applies to "housing accommodations," which include any building "which is used or occupied or in intended, arranged or designed to be used or occupied, as the home, residence or sleeping place of one or more human beings." G.L. c. 151B, §1(9).

6. The federal Fair Housing Act has been interpreted to apply to various residences that were temporary in nature. See, e.g. United States v. Hughes Memorial Home , 396 F. Supp. 544 (W.D.Va. 1975) (children's home); United States v. Columbus Country Club , 915 f 2nd 877 (3d Cir 1990), reh'g and reh'g en banc denied (3d Cir. 1990), cert. denied, 501 US 1205 (1991) (summer homes); Woods v. Foster , 884 F. Supp. 1169 (N.D. Ill. 1995) (homeless shelter); Lauer Farms v. Waushara County Bd. of Adjustment , 986 F. Supp. 544 (E.D. Wis. 1997) (temporary structures for housing migrant farm workers).

7. There are many examples. See, e.g., Robinson v. 12 Lofts Realty, Inc. , 610 F.2d 1032 (2d Cir. 1979); Crowell v. Lantzakis , 5 MDLR 16 (1983); Gardner v. Pianka , 2006 WL 2918563 (MCAD 2006), 28 MDLR 189 (2006).

8. Demanding higher rents or more stringent terms or prices from minority applicants is prohibited by 42 U.S.C. §3604(b). See United States v. Long , Eq. Opportunity in Hous. Rep. (P-H), ¶13, 631 at 14090 (D.S.C. 1974), remanded on other grounds, 537 F.2d 1151 (4th Cir. 1975), cert. denied, 429 U.S. 871 (1976). Delaying minority applications also constitutes more stringent terms. See Williamsburg Fair Housing v. N.Y.C. Housing Auth. , 493 F. Supp. 1225 (S.D.N.Y. 1980), aff'd without opinion, 647 F.2d 163 (2d Cir. 1981); Luna v. Lynch , 7 MDLR 63 (1985). HUD has rejected the argument that different security deposits should be permitted for tenants with children or a physical disability (Preamble II, 24 C.F.R. ch. 1, subch. A, app. 1 at 54 Fed. Reg. 3239 [Jan. 23, 1989]). See also 24 C.F.R. §§100.60 (b)(3), (b)(4), 100.65 (b)(1), and 42 U.S.C. §3604(f)(2).

9. False representation of non-availability is also prohibited. See 42 U.S.C. §3604(d); Havens Realty Corp. v. Coleman , 455 U.S. 363, 374-75 (1982); Seaton v. Sky Realty Co. , 491 F.2d 634, 635-36 (7th Cir. 1974); Davis v. Mansards , 597 F. Supp. 334, 343 (N.D. Ind. 1984).

10. A management firm that published a brochure that contained virtually no blacks as photo models showed a racial preference in violation of 42 U.S.C. §3604. See Saunders v. General Servs. Corp. , 659 F. Supp. 1042 (E.D. Va. 1987). The provision is not limited to advertising. HUD regulations specifically include oral and written statements made by a person engaged in the rental of a dwelling. See 24 C.F.R. §100.75(b). See also Mayers v. Ridley , 465 F.2d 630, 649 (D.C. Cir. 1972) (en banc). Also, G.L. c. 151B, §4(7B) mirrors the language of Title VIII and thus oral or written notices or statements would also be violations under state law.

11. Havens Realty Corp. v. Coleman , 455 U.S. 363, 373-75 (1982); Gladstone Realtors v. Village of Bellwood , 441 U.S. 91, 111-15 (1979); Village of Bellwood v. Dwivedi , 895 F.2d 1521, 1529 (7th Cir. 1990).

12. A landlord's policy of evicting families with children from one of her buildings had a "substantially greater adverse impact on minority tenants." See Betsey v. Turtle Creek Assocs. , 736 F.2d 983, 988 (4th Cir. 1984).

13. 42 U.S.C. §3604(a), (f)(1). Refusal to negotiate may also involve the pretense that no units are available. The courts have made clear that these avoidance techniques are condemned. See, e.g., Trafficante v. Metropolitan Life Ins. Co. , 409 U.S. 205, 207-08 (1972); United States v. Youritan Construction Co. , 370 F. Supp. 643, 648 (N.D. Cal. 1973) ("laws prohibiting discrimination in housing because of race prohibit not only, for example, overt racial rejection of applicants, but subtle behavior as well."), aff'd as modified, 509 F.2d 623 (9th Cir. 1975). State law explicitly prohibits a refusal to negotiate. See G.L. c. 151B, §4(6), (7).

14. Discrimination in the provision of access to any service relating to the renting or selling of homes is prohibited. See 42 U.S.C. §3606, 24 C.F.R. §100.90, 24 C.F.R. ch.1, subch. A, app. I at 522 (1989). Discrimination in the provision of brokerage services is also prohibited by state law. See G.L. c. 151B, §4(6), (7), (11).

15. 42 U.S.C. §3617; G.L. c. 12, §§11H and 11I. Section 3617's protection extends to persons who have "aided or encouraged" others in the exercise of their Title VIII rights. See Smith v. Stechel , 510 F.2d 1162, 1164 (9th Cir. 1975). See, by way of analogy, Redgrave v. Boston Symphony Orchestra, Inc. , 399 Mass. 93, 99-100 (1987) (acquiescence in a third party's desire to repress speech did amount to threats, intimidation, or coercion under G.L. c. 12, §§11H and 11I).

16. See HUD regulations implementing the disability provisions of Title VIII at 24 C.F.R. §100.204; G.L. c. 151B, §4(7A); Whittier Terrace Assocs. v. Hampshire , 26 Mass. App. Ct. 1020 (1989) (rescript); City Wide Assocs. v. Penfield , 409 Mass. 140 (1991); Peabody Properties Inc. v. Jeffries , Hampden Housing Court, 88-SP-7613-S (Abrashkin, J., Jan. 6, 1989); Lawrence Housing Authority v. Baez , Northeast Housing Court, 92-SP-00025 (Kerman, J., Oct. 28, 1992).

17. See Trafficante v. Metropolitan Life Ins. Co. , 409 U.S. 205, 207-08 (1972).

18. Massachusetts law prohibits discrimination in housing because a child or children will occupy the rented premises, but exempts: (1) owner-occupants of two-family houses; (2) dwellings of three units or fewer, one of which "is occupied by an elderly or infirm person for whom the presence of children would constitute a hardship"; and (3) certain temporary rentals. G.L. c. 151B, §§4(11)(1)-(11)(3). These exemptions, however, do not apply to §4(7B)'s ban on discriminatory statements and advertising, nor do they apply to persons whose business includes engaging in residential real estate-related transactions. See 804 C.M.R. §§2.01(4)(b)-(4)(c).

The federal Fair Housing Act, 42 U.S.C. §§3602(k), 3604, and 3606, forbids housing discrimination based on "familial status." "Familial status" was added by the Fair Housing Amendments Act of 1988. The federal law does not apply to owner-occupants of one- to four-family homes (the so-called "Mrs. Murphy" exemption). 42 U.S.C. §3603(b)(2); 24 C.F.R. §100.10(c)(2). The rental or sale of a single-family house by an owner who has not sold a house within the previous 24 months, who does not own more than three single-family houses, who does not use a real estate agent or broker to sell or rent the house, and who does not use a discriminatory advertisement, is also exempt from the Act. 42 U.S.C. §3603(b)(1); 24 C.F.R. §100.10(c)(1). Similar to Massachusetts law, the Fair Housing Act's ban on discriminatory statements and advertising (contained in 42 U.S.C. §3604(c)) is not subject to these exemptions. 42 U.S.C. §3603(b). Moreover, even where a landlord does have an exemption, the landlord's broker may not legally discriminate against children. See 42 U.S.C. §3605.

19. See 42 U.S.C. §3602(k); 804 C.M.R. §2.02(2).

20. See G.L. c. 151B §4(11)(2). A landlord is also allowed to exclude children where a dwelling contains three apartments or less and one of the units is occupied by an elderly or infirm person for whom the presence of children would constitute a hardship. G.L. c. 151B, §4(11)(1). The law also allows children to be excluded when a landlord temporarily leases (for up to one year) a single family resident or unit that the landlord ordinarily occupied as his or her principal residence. G.L. c. 151B §4(11)(2).

21. See 42 U.S.C. §§3607(b)(1)-(3). The Massachusetts law prohibiting housing discrimination against families with children does not specifically exempt housing for older person, see G.L. c. 151B §4(11); however, the prohibition against housing discrimination based on age does contain such a limitation. See G.L. c. 151B §§4(6)-(7).

22. See 42 U.S.C. §3604(c); G.L. c. 151B, §4(7B).

23. See 42 U.S.C. §3605; G.L. c. 151B, §4(3B).

24. The Massachusetts Lead Poisoning Prevention and Control statute is at G.L. c. 111, §190. The law requires all owners of residential buildings to remove or cover lead paint in places where a child under the age of six lives or seeks to live. The law specifically applies to an owner who tries to avoid lead paint liability by discriminating against a family with children, even if that family does not yet reside in the apartment or house. G.L. c. 111, §199A.

G.L. c. 151B, §4(11) specifically obligates the Mass. Commission Against Discrimination or a court which finds discrimination against families with children because of the presence of lead paint to refer such cases to the director of the Childhood Lead Poisoning Prevention Program which is located in Boston.

25. However, depending on the reason for the question, it may be possible for a landlord or her agent to inquire about the age of children who may be tenants. At least one court has upheld the decision of a HUD Administrative Law Judge who concluded that the Fair Housing Act was not violated when a real estate agent asked a prospective tenant about the number and age of her children in order to secure a quiet neighbor for an existing elderly tenant. Soules v. U.S. Dept. of Housing and Urban Development , 967 F2d 817 (2nd Cir. 1992).

26. Two federal acts require landlords, including landlords with units paid for by Section 8 vouchers, to inspect apartments in which children live or will live for lead paint. See 42 U.S.C. §§4821-4846 (the Lead-Based Paint Poisoning Prevention Act) and 42 U.S.C. §4851 (Residential Lead-Based Paint Hazard Reduction Act of 1992). See also Voucher Program Guidebook: Housing Choice, U.S. Dept. of Housing and Urban Development, www.hud.gov/offices/pih/programs/hcv/forms/guidebook.cfm. See also the DHCD Lead Law Policy Notebook, available at the State House Bookstore (617-727-2834).
The DHCD policy was, in part, a reaction to the holding in the case of Ayala v. Boston Housing Auth. , 404 Mass. 689 (1989), which held that the Boston Housing Authority had a duty to inspect a Section 8 unit for lead paint and might be liable for a child's poisoning in a unit that it failed to inspect. The court also held that the tenants were third-party beneficiaries of the contracts between BHA and the landlord and could thus sue for breach of those contracts. If a landlord denies you housing because you are a Section 8 recipient and the rules of the program demand that she delead the unit, then she may be discriminating on the basis of your receipt of a rental subsidy in violation of G.L. c. 151B, §4(10), which prohibits discrimination " … because of any requirement of such … rental assistance or housing subsidy program." If the discrimination was based on the receipt of rental assistance, then the exemption for owner-occupants of two-family homes does not apply. No owner can discriminate on this basis.

27. 42 U.S.C. §3604(b), as amended by the 1988 Act, explicitly forbids discrimination against any person "in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of … familial status." In Glover v. Crestwood Lake Section 1 Holding Corps. , 746 F. Supp. 301, 309-10 (S.D.N.Y. 1990), the court held that a landlord's refusal to rent a one-bedroom unit to a person with a child, or a two-bedroom unit to a person with three children, violates the Fair Housing Act since the landlord had rented these apartments to childless households of the same size.

28. See 42 U.S.C. §3607(b)(1); G.L. 151B, §4(11).

29. A recent national study, sponsored by the U.S. Department of Housing and Urban Development (HUD), found that African-American and Hispanic people looking for rental apartments are still discriminated against in cities across the country. White renters were favored over black renters 21.6% of the time. White renters were also favored over Hispanic renters 25.7% of the time. Turner et al., Discrimination in Metropolitan Housing Markets: National Results from Phase I HDS 2000 (Washington, DC, HUD 2002), available at: www.huduser.org/Publications/pdf/Phase1_Report.pdf.

30. All of the 2000 Census data relating to Massachusetts can be found at www.umass.edu/miser. In addition, the Lewis Mumford Center for Comparative Urban and Regional Research at the State University of New York at Albany has published several studies on housing segregation based upon the 2000 Census data. These studies can be accessed at www.albany.edu/mumford. See also Race, Place, and Segregation: Redrawing the Color Line in Our Nation's Metros, a study by the Civil Rights Project, the John F. Kennedy School of Government at Harvard University, CommUNIRY 2000, and The Leadership Council for Metropolitan Open Communities (2002), available at: www.civilrightsproject.ucla.edu/research/metro/three_metros.php.

31. See Espinoza v. Hillwool Square Mutual Ass'n ., 522 F. Supp. 559 (E.D. Va. 1981). While you do not need to be a citizen to apply for public or subsidized housing, some programs are allowed to ask you about your citizenship or immigration status. See generally Legal Tactics: Finding Public and Subsidized Housing , 2d ed., 2006, Booklet 9: Immigrants and Housing.

32. G.L. c. 151B, §4(10).

33. See Diliddo v. Oxford Street Realty , 450 Mass. 66 (2007). In Diliddo , the Supreme Judicial Court held that a one-month termination provision in an alternative housing vouching program (AHVP) lease was a "requirement" of the AHVP program which the landlord's agent could not reject for financial reasons. In so holding, the Court refused to read into the statute an exception that would allow landlords to reject participants in housing subsidy programs whose requirements might cause the landlord economic harm.

34. See the regulation for the Section 8 Tenant Based Assistance: Housing Choice Voucher Program, 24 C.F.R. §982.304, Illegal Discrimination: PHA Assistance to Family. This section states: "A family may claim that illegal discrimination because of race, color, religion, sex, national origin, age, familial status or disability prevents the family from finding or leasing a suitable unit with assistance under the program. The PHA must give the family information on how to fill out and file a housing discrimination complaint." See also 24 C.F.R. §982.53, describing the equal opportunity requirements under the Section 8 program. Finally, note that the Equal Opportunity Housing Plan must, in accordance with the requirements of Executive Order 11,063, 3 C.F.R. §652 (1959-1963), reprinted as amended in 42 U.S.C.S. §1982, "promote the abandonment of discriminatory practices" and "prevent discrimination."

35. The federal district court found in NAACP v. Pierce , 624 F. Supp. 1083 (D. Mass. 1985), remanded for remedial order, 817 F.2d 149 (1st Cir. 1987), that HUD had failed in its duty to promote fair housing in administering its federally funded housing and community development programs in the city of Boston. On March 8, 1991, Federal District Judge Walter Skinner approved a consent decree between the NAACP and HUD, which also incorporated settlement agreements between the city of Boston and HUD, as well as between EOCD and HUD.

36. Ch. 151B, §1(16), (17), and §4(3C), (4A), (6)-(7B). In federal law, the key provisions are in the Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, §13(a), 102 Stat. 1636 (1988), codified at 42 U.S.C. §§3601 et seq. Both the state and federal law add persons with disabilities to the list of those protected against discrimination. Both laws, with the state law being generally stronger, provide that landlords must make "reasonable accommodations" to persons with disabilities so that they can rent and enjoy housing on an equal basis with those who are not disabled.

Another federal law protecting disabled people from housing discrimination, but only in "federally assisted" housing, is Section 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C. §794.

37. G.L. c. 151B, §4(7A); 42 U.S.C. §3602(h).

38. State law, at G.L. c. 151B, §1(17), uses the same definition of "handicap" as the federal Fair Housing Act does. The federal Fair Housing Act and implementing regulations define "handicap" as (1) a "physical or mental impairment which substantially limits one or more of [a] person's major life activities," (2) a record of such an impairment, or
(3) being regarded as having such impairment. 42 U.S.C. §3602(h); 24 C.F.R §100.201. Section 504 has a similar definition. See 29 U.S.C. §§705(9)(B), 705(20)(B).
Note that the federal law does not include as a "handicap" the current illegal use of or an addiction to a controlled substance.
42 U.S.C. §3602 (h)(3), 24 C.F.R. §100.201. (However, recovering drug abusers in a treatment program would not be excluded if they do not currently use illegal drugs. See House Judiciary Comm., Fair Housing Amendments Act of 1988, H.R. Rep. No. 711, 100th Cong., 2d Sess. 25, 28-29, reprinted at 1988 U.S. Code Cong. & Admin. News 2173, 2183-84.) State law, however, makes no exclusion for drug addicts. Also, the federal law is explicit that discrimination protections are not to extend to any individual whose tenancy would constitute a "direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others." 42 U.S.C. §3604(f)(9); 24 C.F.R. §100.202(d). In contrast, the state law, G.L. c. 151B, includes no language exempting such persons from protection against discrimination. Notwithstanding this difference in language, the Appeals Court has stated, at least in the public housing context, that "the Federal and State fair housing statutes provide for eviction of tenants [with disabilities] who engage in violent activity threatening 'the health, safety, or right to peaceful enjoyment of the premises by other tenants.'" Boston Housing Authority v. Bridgewaters , 69 Mass. App. Ct. 757, 768 (2007) (quoting 42 U.S.C. §1437d(1)(6)(2000)).

39. This section addresses only the disability laws regarding private housing. The laws regarding public and subsidized housing are different and can be more complicated. To get information on how the disability laws apply to public and subsidized housing providers, see forthcoming Legal Tactics: Finding Public and Subsidized Housing (2nd Edition, 2006), available at MCLE and online at: www.MassLegalHelp.org.

40. G.L. c. 6, §172, 5th ¶, 3rd sentence. This law states: "Except as authorized by this chapter it shall be unlawful to request or require a person to provide a copy of his criminal offender record information."

41. 42 U.S.C. §3602(h); Peabody Properties, Inc. v. Sherman, 418 Mass. 603 (1994).

42. The fair housing laws do not give a definition of current use of illegal drugs . However, the Americans with Disabilities Act defines current use of drugs as "illegal use of drugs that occurred recently enough to justify a reasonable belief that a person's drug use is current or that continuing use is a real and ongoing problem." 28 C.F.R. §35.104; 28 C.F.R. §36.104. In addition, the law regarding public and subsidized housing states that "a person's illegal use of a controlled substance within the preceding 12 months shall create a presumption that such person is a current illegal user of a controlled substance, but the presumption may be overcome by a convincing showing that the person has permanently ceased all illegal use of controlled substances. This disqualification of current illegal users of controlled substances shall not apply to applicants for housing provided through a treatment program for illegal users of controlled substances." 760 CMR §5.08(1)(k).

43. 42 U.S.C. §3604(f)(9). See Boston Housing Authority v. Bridgewaters , 69 Mass. App. Ct. 757, 871 (2007) (public housing authority not required to provide reasonable accommodations before seeking to evict tenant with mental disabilities who had been convicted of assaulting another tenant).

44. G.L. c. 121B, §32; 760 CMR §5.08(2).

45. The federal Fair Housing Act requires "reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." 42 U.S.C. §3604(f)(3)(B). See 24 C.F.R. §100.204. The concept of "reasonable accommodations" was drawn from §504 of the Rehabilitation Act of 1973, 29 U.S.C. §794 (see 53 Fed. Reg. 45003, November 7, 1988), which prohibits discrimination against disabled people in federally assisted housing. This reliance on §504 is significant, because there is a limited body of §504 case law elaborating upon the "reasonable accommodations" concept under §504. See, e.g., Southeastern Community College v. Davis , 442 U.S. 397 (1979), and Alexander v. Choate , 469 U.S. 287 (1985). See House Judiciary Comm., Fair Housing Amendments Act of 1988, H.R. Rep. No. 711, 100th Cong., 2d Sess. 25, 28-29, reprinted at 1988 U.S. Code Cong. & Admin. News 2173, 2189-90. For a very helpful Massachusetts case decided under §504, see City Wide Assocs. v. Penfield , 409 Mass. 140 (1991). In that case, a landlord was attempting to evict an elderly mentally disabled tenant who, because she heard voices in the walls, banged at and threw things at the walls in her apartment. The Supreme Judicial Court held that under §504 the landlord had an obligation to reasonably accommodate her handicap by stopping the eviction action and giving her an opportunity to obtain mental health counseling. The court seemed to agree that the damage caused by the tenant (less than one month's rent) was not significant, especially since the cost was reimbursable by a public agency.
The Massachusetts Appeals Court, interpreting §504 in Whittier Terrace Assocs. v. Hampshire , 26 Mass. App. Ct. 1020 (1989) (rescript), has ruled that a disabled woman who is psychologically dependent upon her cat should be permitted an exception to the landlord's no-pet rule.
Although not precisely defining reasonable accommodations, the HUD fair housing regulations give several examples illustrating the range of accommodations required by the law, such as a no-pets policy that should be waived for a seeing-eye dog, provision of a preferred parking space for a mobility-impaired person, and more. See 24 C.F.R. §100.204(b). Note that, irrationally, reasonable accommodations under the HUD §504 regulations do not include supportive services such as counseling, medical, or social services not provided to other tenants, but may include, for example, assistance with trash removal for a physically disabled person. There is no analytic support for this restriction, and it runs counter to precedents in both the housing ( Shcuett v. Anderson , 386 N.W.2d 249 (Minn. Ct. App. 1986)) and education ( Tatro v. Texas , 625 F.2d 557, 564 (5th Cir. 1980)) areas. Advocates should therefore be cautioned not to rely upon HUD's §504 regulations as a correct statement of the law with respect to any aspect of §504 analysis.
State law, at G.L. c. 151B, §4(7A), also includes the failure to make reasonable accommodations as an act of illegal discrimination. This means, as under the federal law, that a person with a disability has a right to expect her landlord to reasonably adjust rules or policies when necessary to allow her to live comfortably in her home. It is also illegal to refuse to rent to a person because she might need reasonable accommodations to the premises or to refuse to allow a tenant to make reasonable modifications to her apartment. Both the federal law (42 U.S.C. §3604(f)(3) and 24 C.F.R. §100.203) and state law require owners to allow disabled tenants to make reasonable modifications to their units at their own expense. This might include widening a doorway, installing a grab bar, putting in a louder doorbell, or lowering the light switches. However, the state law goes further for publicly assisted, multiple-dwelling or other larger housing developments. In those forms of housing, reasonable modifications must be paid for by the owner (in the case of public housing, this is subject to appropriation), but modifications are not considered reasonable if they would impose undue hardship on the owner. Also, reasonable modifications do not include ramping for more than five steps or installing a wheelchair lift. G.L. c. 151B, §4(7A)(1) and (7A)(3). Under §504, the only limit on provision of reasonable accommodations including structural modifications is "undue hardship." Thus, §504, if available, may be the better route for structural modifications in certain situations.
Whether the issue is a physical change to an apartment or the altering of certain rules or policies, the question about reasonable accommodations will most often be "What is reasonable?" State law says that a modification is not required "if it would impose an undue hardship upon the owner. … Factors to be considered shall include, but not be limited to, the nature and cost of the accommodation or modification needed, the extent to which the accommodation or modification would materially alter the marketability of the housing, the overall size of the housing business of the owner … and the ability of the owner … to recover the cost … through a federal tax deduction," G.L. c. 151B, §4(7A)(3).
In Andover Housing Authority v. Shkolnik , 443 Mass. 300 (2005), the Supreme Judicial Court held that a public housing authority did not violate the Fair Housing Act and M.G.L. c. 151B when it evicted a tenant with an alleged mental disability for excessive noise, and that the tenant's requested withdrawal or delay of eviction proceedings was not reasonable. Relying on language appearing in §504 of the Rehabilitation Act (but not in the Fair Housing Act or M.G.L. c. 151B), the Court focused on whether the tenant was a "qualified" handicapped person and concluded he was not. According to the Court, "[i]n the public housing context, a 'qualified' handicapped individual is one who could meet the authority's eligibility requirements for occupancy and who could meet the conditions of a tenancy, with a reasonable accommodation or modification in the authority's rules, policies, practices, or services. Here, the tenants made no showing that, even if eviction proceedings were withdrawn or delayed, they could comply with the terms of their lease by not disturbing their neighbors." 443 Mass. at 310-311 (internal citations omitted).

46. See City Wide Assocs. v. Penfield , 409 Mass. 140, 143-44 (1991).

47. 42 U.S.C. §3604(f)(9); Andover Housing Authority v. Shkolnik , 443 Mass. 300, 312 (2005) (neighbors' rights need not be "sacrificed 'on the altar' of reasonable accommodation") (quoting Groner v. Golden Gate Gardens Apartments , 250 F.3d 1039, 1046 (6th Cir. 2001)); Boston Housing Authority v. Bridgewater s, 69 Mass. App. Ct. 757, 768 (2007) (housing authority not required to accommodate a mentally disabled tenant who engaged in violent conduct that is "significantly inimical to an authority's obligation to provide a physically safe environment for its tenants….").

48. See Rodriguez v. Montalvo , 337 F. Supp. 2d 212, 215-16 (D. Mass. 2004).

49. 42 U.S.C. §3604(f)(3); G.L. c. 151B, §4(7A)(1). Under Massachusetts law, an owner must pay for reasonable accommodations "in the case of publicly assisted housing, multiple dwelling housing consisting of ten or more units, or contiguously located housing consisting of ten or more units…." G.L. c. 151B, §4(7A)(1).

50. See G.L. c. 151B, §4(7A).

51. Testing has been held to be legal by every court that has dealt with the issue, including the U.S. Supreme Court, which unanimously sanctioned testing by holding that testers who receive false information about the availability of housing have standing to sue under the Fair Housing Act. Havens Realty Corp. v. Coleman , 455 U.S. 363, 373-79 (1982); see also Northside Realty Assocs., Inc. v. United States , 605 F.2d 1348, 1355 (5th Cir. 1979); Meyers v. Pennypack Woods Home Ownership Ass'n , 559 F.2d 894, 897-98 (3rd Cir. 1977) (§1982 case).
Many courts have said that testing is often the most reliable evidence in a housing discrimination case even though testers "misrepresent" themselves.
Testing has been challenged on the basis that testers "acted under false pretenses." This was rejected by the U.S. Court of Appeals for the Tenth Circuit, which said "it would be difficult indeed to prove discrimination in housing without this means of gathering evidence." Hamilton v. Miller , 477 F.2d 908, 909 n.1 (10th Cir. 1973); see Education/Instruction, Inc. v. Copley Management & Dev. Corp. , 1 Fair Hous.-Fair Lend. (P-H) ¶15,530 (D. Mass. March 30, 1984). The federal district court for the district of Massachusetts in the Education/Instruction case asserted that the use of testers was crucial to the enforcement of the Fair Housing Act and, therefore, any state act that obstructs the use of testers must be held invalid by virtue of the operation of the Supremacy Clause.

52. Also note that HUD funds testing programs under its Fair Housing Initiatives Program, authorized in §561 of the Housing and Community Development Act of 1987, Pub. L. No. 100-242, §561, 101 Stat. 1815, 1942-44 (1988), codified at 42 U.S.C. §3616a(b)(2)(A).

53. G.L. c. 151B, §5; 804 C.M.R. §1.13(5)(b); 24 C.F.R. §103.15.

54. 42 U.S.C. §3610(b) and (c); 804 C.M.R. §1.15(6); 24 C.F.R. §103.300-335.

55. 42 U.S.C. §3610.

56. Although many localities have human rights or fair housing commissions or committees, only a few of these have enforcement powers. At the time of this writing, only the Boston Fair Housing Commission and the Cambridge Human Rights Commission have "substantial equivalency" status from HUD under the federal fair housing law.

57. As a matter of practice, most fair housing cases present a mixture of federal and state law which can be included in one court case. See endnote 2 for the federal and state claims that can be raised.

58. 42 U.S.C. §§3612(g)(3), 3613(c)(1), 3614(d)(1); G.L. c. 151B, §9.

59. See, e.g., Williams v. Hardy , 98-BPR-1732, 2001 WL 1602770 (MCAD Nov. 13, 2001), affirmed by full commission, 2003 WL 403145 (MCAD Jan. 14, 2003) (tenant awarded $50,000 in emotional distress damages in Section 8 discrimination case where, as a result of landlord's conduct, tenant feared homelessness, sought therapy, and had to move to substandard apartment); Love v. Boston Housing Authority , 18 MDLR 158 (11/15/96), affirmed by full commission, 200 WL 33665439 (10/16/00) (tenant awarded $100,000 in emotional distress damages in race discrimination case where tenant endured racial harassment from neighbors, racist graffiti on his door and his car, and the housing authority refused to investigate his claims of harassment or to transfer him). See generally John P. Belman, Housing Discrimination Practice Manual §6.1, at 6-1 to 6-14 (2005).

60. See Larry Heinrich, Ph. D., The Mental Anguish and Humiliation Suffered by Victims of Housing Discrimination , 26 J. Marshall L. Rev. 39 (1992).

61. 42 U.S.C. §3613(c)(1) authorizes the court in a Title VIII suit brought by an individual homeseeker to issue any permanent injunction or other order that it "deems appropriate." The district court has broad discretion, so that not all cases in which liability is found will result in such an order. See Heights Community Congress v. Hilltop Realty, Inc. , 774 F.2d 135, 144 (6th Cir. 1985), cert. denied, 475 U.S. 1019 (1986).
42 U.S.C. §1982 provides no explicit method of enforcement, but the Supreme Court held that this does not prevent a federal court from fashioning an effective equitable remedy. Jones v. Alfred H. Mayer Co. , 392 U.S. 409, 414 n.13 (1968). Since 1968, the lower courts have awarded fair housing plaintiffs in §1982 cases the same relief as is available in private Title VIII cases. See Moore v. Townsend , 525 F.2d 482 (7th Cir. 1975); Smith v. Sol D. Adler Realty Co. , 436 F.2d 344, 350 (7th Cir. 1970).
42 U.S.C. §1981 is generally accorded the same treatment in terms of relief available as §1982. In Runyon v. McCrary , 427 U.S. 160, 190 (1976) (Stevens, J. concurring), it was stated that "it would be most incongruous to give these two statutes a fundamentally different construction."
G.L. c. 151B, §9 provides for the court to issue injunctive relief. The court can award the same relief as under Title VIII. G.L. c. 93, §102(b) provides for the court to award injunctive and other appropriate equitable relief. G.L. c. 12, §11H provides for the court to award "injunctive and other appropriate equitable relief in order to protect the peaceable exercise or enjoyment of the right or rights secured [by the constitution]." G.L. c. 12, §11I contains remedies similar to §11H.

62. The previous limit of $1,000 punitive damages under Title VIII was eliminated in 1988. The court is now authorized to award punitive damages in whatever amount is appropriate. See 42 U.S.C. §3613(c)(1). Since 1988, punitive damage awards under Title VIII have sometimes been very high. See Littlefield v. McGuffey , 954 F.2d 1337, 1348-50 (7th Cir. 1992) (upholding jury award of $100,000 to single plaintiff). Guidance regarding the size of an appropriate award should be sought from 42 U.S.C. §§1981 and 1982 cases which were not constrained by the previous limitation. See Marable v. Walker , 704 F.2d 1219, 1220-21 (11th Cir. 1983); Phillips v. Hunter Trails Community Ass'n , 685 F.2d 184, 190-91 (7th Cir. 1982).
G.L. c. 151B, §9 authorizes the court to award actual and punitive damages. For the conduct that will justify the award of punitive damages, see Smith v. Wade , 461 U.S. 30, 56 (1983) (quoting Restatement (Second) of Torts §908(1) (1979) (§1983 case)). See also Newport v. Fact Concerts, Inc. , 453 U.S. 247, 266 (1981); Ciccarelli v. School Dept. of Lowell , 70 Mass. App. Ct. 787, 795-97 (2007).

63. Phillips v. Hunter Trails Community Ass'n , 685 F.2d 184, 191 (7th Cir. 1982) (decided that the most important issue in deciding whether to award punitive damages is whether the defendant's actions were intentional). The size of the award should serve the twin goals of deterrence and punishment, and therefore the defendant's financial resources are relevant. See, e.g., Miller v. Apartments and Homes of N.J., Inc. , 646 F.2d 101, 111 (3d Cir. 1981).

64. Phillips v. Hunter Trails Community Ass'n , 685 F.2d 184, 191 (7th Cir. 1982); Grayson v. S. Rotundi & Sons Realty , 1 Fair Hous.—Fair Lend. ¶15,516 (September 5, 1984); Miller v. Apartments and Homes of N.J., Inc. , 646 F.2d 101, 111 (3rd Cir. 1981).

65. If the respondent has not been adjudged to have committed any discriminating housing practice during the last five years, the civil penalty cannot exceed $10,000. If the respondent has committed one discriminatory housing practice during the five years before this case was filed, the civil penalty cannot exceed $25,000; if she has committed two or more discriminatory housing practices during the seven years before this case was filed, the civil penalty cannot exceed $50,000. See 42 U.S.C. §3612(g)(3); G.L. c. 151B, §5.

66. G.L. c. 151B, §5, 2nd paragraph, 36th sentence.

67. 42 U.S.C. §3610(f).

68. 42 U.S.C. §3610(f).

69. The MCAD must complete its investigation of a complaint alleging housing discrimination within 100 days of receiving the complaint, unless it is impracticable to do so. 804 C.M.R. §1.13(3).

70. G.L. c. 151B, §5.

71. 42 U.S.C. §3612(a). If it is not possible to complete the investigation in 100 days, the complainant and respondent must be notified in writing of the reasons for the delay. See 42 U.S.C. §3610(a)(1)(C).

72. A copy of the HUD complaint form is available at www.hud.gov/complaints/housediscrim.cfm. You can file the complaint on line, or print out a copy and mail the completed form to HUD. If you print out the form and file it yourself, be sure to write in ink; do not use pencil. Also, on question 3, be sure to list not only the landlord but everyone you talked to at the landlord's office or at the place where you applied for housing. Note: Under NAACP v. Secretary of Housing & Urban Dev. , 817 F.2d 149, 155 (1st Cir. 1987), HUD has an affirmative duty to "use its grant programs to assist in ending discrimination and segregation, to the point where the supply of genuinely open housing increases."

73. G.L. c. 151B, §9.

74. 42 U.S.C. §3613(a)(1)(A).

75. See G.L. c. 151B, §5; 42 U.S.C. §3614.

Legal Research Tools
What "Fair Housing" Means for People with Disabilities (1999). Published by The Bazelon Center for Mental Health Law. www.bazelon.org. Copies available from the Center for $4.00.
What the Fair Housing Amendments Act of 1988 Means for People with Mental Disabilities (1989). Paper by Mental Health Law Project, 2021 L St. N.W., Suite 800, Washington D.C. 20036-4909, 202-467-5730.
· The Impact of the Fair Housing Amendments Act on Land-Use Regulations Affecting People with Disabilities (1988). Published by The Bazelon Center for Mental Health Law. www.bazelon.org. Updated version of this article is available online for $4.00.
· Legal Rights of Individuals with Disabilities , Volume One (2002), edited by Stanley J. Eichner and Christine M. Griffin. Includes chapters about "Housing Rights" and about "Enforcing Fair Housing Rights to Live in the Community of Choice." Available from MCLE, 10 Winter Place, Boston MA 02108, 800-966-6253.
· Fair Housing—The Law in Perspective . Published by the United States Department of Housing and Urban Development (HUD) on the 20th anniversary of the federal Fair Housing Law. This may be ordered from the publications office of Region One of HUD.
· Fair Housing Amendments Act of 1988: A Selected Resource Guide . Published by HUD Office of Fair Housing and Equal Opportunity, March 1991. Provides abstracts of many articles about the 1988 amendments. Copies are available for $3. Contact HUD User at 800-245-2691.
· Housing Discrimination—Law and Litigation , by Robert G. Schwemm. Published by Clark Boardman and Co., 2002. A looseleaf volume providing a comprehensive discussion of the law in this area, with yearly supplements.
· Massachusetts Discrimination Law Reporter (MDLR). Published by New England Legal Publishers. A looseleaf service providing Massachusetts discrimination case reports and news service.
· Housing Discrimination Practice Manual , by John Relman. Published by Clark Boardman (2002). A step-by-step guide to litigating fair housing cases.


Produced by Jonathan Mannina
Created July 2008


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