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.
1. 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.
2. Get a Test Done Quickly
a. 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, and other similar information. 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.55 Testers can be used to investigate complaints of any of the types of unlawful housing discrimination.56
b. 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:
Fair Housing Center of Greater Boston
100 Terrace Street, Suite 8
Boston, MA 02120
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:
Community Legal Aid, Inc.
405 Main St.
Worcester, MA 01608
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.
c. 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.
3. 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.57
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.58 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
100 Terrace Street, Suite 8
Boston, MA 02120
Lawyers Committee for Civil Rights
and Economic Justice
(For discrimination based on race
and national origin)
294 Washington St., Suite 443
Boston, MA 02108
Community Legal Aid
405 Main St.
Worcester, MA 01608
Massachusetts Fair Housing Center
57 Suffolk Street
Holyoke, MA 01040
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.
4. File a Complaint
If you think you have been discriminated against, you have the right to file a complaint directly with:
- Massachusetts Commission Against Discrimination (MCAD),
- U.S. Department of Housing and Urban Development (HUD),59
- Your local fair housing or human rights commission or committee (if there is one in your community),60 or
- A court.61
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.
- For more information about where to file a complaint see State and Federal Anti-Discrimination Laws Comparison.
a. 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.
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.62 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.63 You and your lawyer should discuss this thoroughly.64
An injunction is an order and does not include an award of money.65 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.
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 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.66 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.67 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.68
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.69
b. 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.70 Before you go to MCAD's office, you should call and schedule an appointment. Call:
MCAD Boston Office
MCAD Springfield Office
MCAD Worcester Office
MCAD New Bedford Office
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:71
- 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.72 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.73 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.74 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.
c. 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.75 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
HUD Fair Housing Discrimination
800-669-9777; TDD 800-927-9275
d. 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.
e. 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.77 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.78 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.
f. 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.79
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.
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).
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.
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).
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.
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.
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 https://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."