Recently I attended a fair-housing seminar hosted by the Department of Housing and Urban Development, Fair Housing Enforcement Center, Seattle (HUD). The training focused on the rights and responsibilities of landlords under the Fair Housing Act of 1968, as amended (FHA),(1) and the Washington Law Against Discrimination.(2)

About forty housing providers--a mixture of private multifamily managers, public housing managers, and individual landlords--were in attendance. It was apparent based on the questions asked by several of the housing providers that many were at the training because they are afraid that with the number of different fair housing laws being enforced by different agencies having different jurisdictions, an landlord can trip up on a law and be found guilty of inadvertent discrimination. An excellent example of how justified that fear can be was lying ignored on a table in the back of the auditorium.

During a break in the lecture, I wandered to the back of the auditorium. On a table near the entrance, HUD had place copies of recent memorandums and recent HUD regulations. Off to the side of the table was a pale blue official HUD poster.(3) No one but me picked up a copy of that poster during the break. I left directly after the training, so I cannot be sure that someone did not take one after I went--but if I had to bet. It is not that they could have missed the poster. It was hard to avoid. It is about 11 inches by 14, has a huge fair housing symbol at the top center. It says in large type "We Do Business in Accordance With the Federal Fair Housing Law," and states that, "It is Illegal to Discriminate Against Any Person Because of Race, Color, Religion, Sex, Handicap, Familial Status, or National Origin." Beneath the antidiscrimination statement, the poster gives six examples of housing discrimination,(4) and directs people to contact the HUD Office of the Assistant Housing for Fair Housing and Equal Opportunity via a toll free number if they feel they have been discriminated against.

I asked all of the landlords who were milling around the table if they already had a poster. All four of the landlords I asked said no. I asked if any were taking one of the posters. Again all said no. I suspect that some did not take the poster because they--like me--feel that putting a poster up saying you do not discriminate with a number to call to complain about discrimination seems like an invitation for someone whose application is denied to ruin about three months of your life(5) and cost you thousands of dollars in legal fees. Others may have passed on the free posters because they are and look like a poster designed by a bureaucratic committee. Because HUD routinely makes the display of the poster part of its settlement agreement, a few probably did not want to admit knowing anything about the poster. Whatever the reasons, those four people made a serious and potentially costly mistake. In order to know why passing on this "free" poster can be a sure blunder, a housing provider needs to know the history of the poster and how the poster is currently used to prove housing discrimination.

In 1971, the Department of Housing and Urban Development (HUD or the Department) published proposed regulations for comment.(6) The new regulations required that almost everyone covered by the Fair Housing Act to display a HUD-approved poster(7) in rental offices, brokers' and agents' offices, and realtors' offices. "A failure to display the Fair Housing Poster as required...shall be deemed a discriminatory housing practice and prima facie evidence of a violation of...the [Fair Housing] Act, as applicable."(8) In other words, not having the poster up was illegal and if someone accused you of discrimination, lack of the poster could be taken as presumptive evidence that you were guilty of discrimination.(9) Any person that felt that they were injured by a housing provider's violation of the poster requirement could file a complaint under the same procedures used to investigate a complaint of discrimination.(10)

The regulations were adopted in 1972 with minor revisions. HUD stated that it had received comments from approximately 20 interested persons and organizations. Interestingly, only one of those comments suggested that HUD was acting beyond its authority because only the Fair Housing Act could "prescribe specific acts of discrimination which are unlawful."(11) The Department responded by stating that it was not creating a new violation under the Fair Housing Act, but only "provid[ing] an appropriate evidentiary mechanism for assisting in the determination of whether a violation of [the FHA] has occurred."(12) Nevertheless, HUD reworded the enforcement provision to say:

Any person who claims to have been injured by a discriminatory housing practice may file a complaint with the Secretary.... A failure to display the fair housing poster as required by this part shall be deemed prima facie evidence of a discriminatory housing practice.(13)

In 1988, when disability and familial status were added as protected classed to the FHA, HUD overhauled its fair housing regulations. Again the fair housing poster was updated.(14) This was the last time the poster was officially updated.(15) Under the current version of the HUD poster in the section titled "Effect of failure to display poster," the regulations state, as did the previous versions, that "Any person who claims to have been injured by a discriminatory housing practice may file a complaint with [HUD].... A failure to display the fair housing poster as required by this part will be deemed prima facie evidence of a discriminatory housing practice."(16)

Many landlords who do not have the housing poster hanging in their businesses and have been investigated by HUD, the state, or by local agencies are probably wondering why they have never heard of this requirement.(17) It appears that neither HUD nor any state or local agency in Washington has ever tried to use the poster as evidence to support a discriminatory practice. The only reported cases when the lack of a poster was used as evidence are complaints made by testing organizations.(18) The best example is of this is a 1984 case Gresham and Metro Fair Housing Services v. Windrush Partners Ltd.(19) There the court found that the lack of a poster at federally subsidized apartment complex was not by itself a violation, but was nevertheless a significant factor in why it was granting a preliminary injunction.(20) The court specifically noted that the testers in the case were trained to look for posters and had said that there were no posters at the complex.

There are not many cases besides Gresham on record. The lack of reported cases (21) on this issue is probably due more to landlords settling cases because they have been accused of an underlying violation. Challenging use of the lack of a poster as evidence of discrimination is probably the farthest thing from a landlord's mind when confronted with an allegation of discrimination.

Are the posters mandatory? Does HUD have the authority to require posters? Should a landlord who has never heard of this regulation immediately call their local HUD Fair Housing Enforcement Center office and demand a poster? James Sacher, who has written the definitive guide on how to litigate a fair housing case, gives the prevailing view of how a court should treat the lack of a poster:

Clearly, proof of a [housing provider's] failure to post the mandated Equal Housing Opportunity Poster, or a reasonable facsimile, should be put before the fact finders, with the anticipation that the...heavy weight of authority afforded to the administrative construction of the Fair Housing Act will be respected by the trial court. The defendant's departures from HUD's suggested advertising guidelines should be referred to as well, although the latter guidelines are permissive, whereas the poster requirement is mandatory.(22)

I believe that it is a good idea to display the poster. Having the poster up generally shows that the landlord knows the law. HUD and other agencies tasked with applying these regulations know that housing providers that know the law are almost universally the ones that follow the law.

NOTES

1. 42 USC 3601 et seq. (1996).

2. RCW 49.60 (1998).

3. An outline of a house with an equal sign in the center. See, 54 Fed. Reg. 3310 (1989).

4. The six practices are discrimination, "[i]n the sale or rental of housing..., [i]n advertising the sale or rental of housing, [i]n the financing of housing, [i]n the provision of real estate brokerage services, [i]n the appraisal of housing, and [b]lockbusting is also illegal."

5. HUD is required under the FHA to finish investigation within 100 days or to explain why it cannot. 42 USC 3610(a)(1)( c).

6. 36 Fed. Reg. 14336 (1971).

7. The actual poster available at the training I attended differed slightly from the poster required by the HUD regulations. It does not have an area for the regional office to stamp its address and instead of referring to "The Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988" under the "We Do Business...." as required by 24 CFR 110.25, it refers to "The Fair Housing Amendments Act of 1988." HUD has assured me that the poster at the training, HUD Form HUD-928.1 (8-93), is the current poster and if it was not the current poster, it qualified under 24 CFR 110 as a HUD approved poster (personal communication with HUD Seattle Fair Housing Enforcement Center).

8. 36 Fed. Reg. at 14336.

9. "[I]f a real estate broker or agent is handling the sale or rental, he must display the poster at any place of business where the dwelling is being offered for sale or rental. With respect to all other dwellings covered by the Act, the poster must be displayed at any place of business where the dwelling is offered for sale or rental; in addition, the poster must be displayed at the dwelling...." Id.

10. "Any person who claims to have been injured by a violation of these regulation...may file a complaint with the Secretary." 36 Fed. Reg. 14336, 14337.

11. Id. (HUD believed it had authority to require the poster under HUD Secretary's general authority to "make such rules and regulations as may be necessary to carry out his functions, powers, and duties" under 42 USC 3535[d]).

12. 37 Fed. Reg. 3429 (1972). The FHA requires that when the Secretary issues a charge of discrimination (usually referred to as a "reasonable cause" finding), the charge must consist of the "short and plain statement of the facts upon which the Secretary has found reasonable cause to believe that a discriminatory housing practice has occurred or is about to occur." 42 USC 3610(g)(2)(B)(i). No where does it say that facts unrelated to the practice at issue can be used as presumptive evidence of a discriminatory practice.

13. Id. at 3430.

14. 54 Fed. Reg. 3310-3311 (1989).

15. See note 8, supra.

16. 24 CFR 110.30.

17. Local agencies that are certified as having law and procedures substantially equivalent to those contained in the Fair Housing Act, as amended, conduct investigations under the FHA and are reimbursed by HUD. 42 USC 3610(f). Since HUD often trains these agencies and there is HUD oversight on how those investigations are performed, the agencies are well usually well versed in the Fair Housing Act, as amended, and HUD fair housing regulations.

18. For an essay that gives a short history of fair housing testers and an overview of their training see Teresa Coleman Hunter, Fair Housing Testing - Uncovering Discriminatory Practices, 28 Creighton L. Rev. 1127, 1133 (1995) (the author gives a very good overview of how tester are supposed to be trained and how testing should be performed. She writes that testers are specifically trained to look for fair housing posters while testing a property).

19. 730 F.2d 1417 (ND Georgia 11th Cir. 1984) (the case deal with a preliminary injunction against a federally subsidized apartment complex. The court quoted 24 CFR 110 and used the lack of a poster as evidence towards the granting the injunction. 24 CFR 110 applies to both subsidized and unsubsidized multifamily housing covered by the FHA. 37 Fed. Reg. 3429).

20. In order to grant a preliminary injunction, a court must find that if the injunction is not granted the plaintiff will 1) suffer irreparable harm, 2) lacks an adequate remedy at law, and 3) show likelihood to prevail on the merits at trial. The first two criteria are often indistinguishable from each other, and the third is the most significant. A court that grants a preliminary injunction must believe that the plaintiff and state that the plaintiff will probably win at trial when it grants the injunction. Seldom do cases continue after such a finding.

21. Most cases that refer to the poster are consent degrees or cases where the court found discrimination. These cases as part of the relief granted required that the housing providers follow 24 CFR 110 and hang a poster. The courts often go as far as to attach the regulations requiring the poster to the final order.

22. James Sacher , Housing Discrimination Litigation, 28 Amjur Trials 1 (Supp. 1998)

The author:  David L. Stevens y Perez is a graduating third year law student at the University of Washington School of Law. He was the 1999 recipient of the prestigious Mary Ellen Krug Scholarship "for the law student showing exceptional promise in the field of labor and employment law (or associated field)." Before going to law school, David was an equal opportunity specialist (fair housing investigator) with the Department of Housing and Urban Development, Fair Housing Enforcement Center, Seattle.   Upon graduation, David will be moving to Spokane, Washington (The Inland Empire) to pursue his interests in landlord-tenant and fair housing law. He can be contacted at ultra_litigator@hotmail.com. This article should not be reprinted without the author's express permission.