Steps to Take if You Think You Have Been Discriminated Against
Notas finales
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.
Endnotes
55 .
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.
56 . 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).
57 . G.L. c. 151B, §5; 804 C.M.R. §1.13(5)(b); 24 C.F.R. §103.15.
58 . 42 U.S.C. §3610(b) and (c); 804 C.M.R. §1.15(6); 24 C.F.R. §103.300-335.
60 . 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.
61 . 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.
62 . 42 U.S.C. §§3612(g)(3), 3613(c)(1), 3614(d)(1); G.L. c. 151B, §9.
63 . 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); MCAD & Richard Blake v. Brighton Garden Apts., 08-BPR-03481 (MCAD May. 28, 2014) (tenant awarded $25,000 in emotional distress damages after landlord refused to accommodate his emotional support dog as an accommodation for his disability); 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).
64 . See Larry Heinrich, Ph. D., The Mental Anguish and Humiliation Suffered by Victims of Housing Discrimination, 26 J. Marshall L. Rev. 39 (1992).
65 . 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.
66 . 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).
67 . 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).
68 . Phillips v. Hunter Trails Community Ass'n, 685 F.2d 184, 191 (7th Cir. 1982); Grayson v. S. Rotundi & Sons Realty Co., 1 Fair Hous.—Fair Lend. ¶15,516 (E.D.N.Y. September 5, 1984); Miller v. Apartments and Homes of N.J., Inc., 646 F.2d 101, 111 (3rd Cir. 1981).
69 . 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.
70 . G.L. c. 151B, §5, 2nd paragraph, 36th sentence.
73 . 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).
75 . 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).
76 . A copy of the HUD complaint form is available at //portal.hud.gov/FHEO903/Form903/Form903Start.action. You can file the complaint online, 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."
78 . 42 U.S.C. §3613(a)(1)(A).
79 . See G.L. c. 151B, §5; 42 U.S.C. §3614.