“We are effectively telling complainants that their pain and suffering is not worth addressing and remedying.”
Dear America,
I joined FHEO because the work is meaningful and impactful. There are very real impacts to people who experience housing discrimination - evictions, denials, housing delays, etc. And through conciliation we are often able to get them relatively quick resolution. However, routine settlements that have reached verbal agreement from both parties now wait months to be approved by the front-office (the political leadership), prolonging the cases and delaying the resolution of the matter for all parties. There is little transparency in what is expected by the front-office and we still don't really know what they're looking for and what determinations and conciliations they will approve. This is highly inefficient and delays resolution for both parties.
Not only does the front-office review routine settlements, they do not allow for emotional damages in settlements - they want to quantify all damages and they want receipts for everything. If the front-office is allowing emotional damages to be included in conciliations agreements, it is unclear when because there is no clear policy or position in writing. The idea that trauma, prolonged stress, embarrassment, lost dignity, etc. does not amount to emotional harm that should be addressed with relief is absurd, insulting to our complainants, and in conflict with Fair Housing Act case law.
Indeed, we are impartial fact-finders, not advocates for complainants. But we are now doing additional fact-finding during the conciliation process, which largely defeats the purpose and benefits of early conciliation. Sure, cases that are obviously not discriminatory should not be settled for large sums of money. But, otherwise, our principal concern should not be reducing the amount of money a Respondent ends up paying; our concern should be identifying a remedy that all parties agree to.
I now have complainants who were denied reasonable accommodations and modifications, but now I cannot necessarily include the emotional damages that they ask for. In trying to settle the case, I now cannot allow the complainant to include monetary damages for the additional stress he experienced. I cannot include a complainant to include the stress and trauma of being unhoused in a monetary settlement agreement, unless there are receipts. We are effectively telling complainants that their pain and suffering is not worth addressing and remedying.
Guidance has been rescinded but no additional information has been provided to investigators. No affirmative vision of civil rights enforcement has been offered by the front office. All our work is now mired in uncertainty: we do not know what the front-office wants in settlements or in determinations. No examples of work products have been provided. We therefore cannot discuss settlement confidently with either party because we ultimately do not know what will be approved by the front-office.
We are also no longer doing impactful compliance reviews or investigations, because if there is no complainant, the front-office believes we are not “statutorily obligated”. This is work that has the potential to affect hundreds of households, due to the size of the housing providers. Compliance work without bona fide complainants is vital though and there are plenty of other indicators of discrimination that we use to identify potential civil rights issues. HUD program participant data (demographic data), HUD program materials, news articles, incorrectly closed in inquiries. There are well-established civil rights issues that we now routinely ignore: arbitrary criminal records, tenant-screening policies, elderly-only public housing, PHA’s not handling reasonable accommodations or modifications appropriately, overly restrictive occupancy standards (which deny qualified families all children), and incorrectly applied local preferences. These are all issues that limit people's access to HUD-funded housing. When we enforce civil rights laws, we are supposed to within HUD's programs, it opens these programs up to qualified families. It doesn't make them less efficient nor does it add regulatory compliance burden. As it stands now, we are abdicating our responsibility to do this kind of work.
Relying on complainants to drive fair housing enforcement in HUD's programs (the additional relevant laws are Section 504, Title II of the ADA, Title VI, and Section 100) effectively means we are not fully enforcing these laws. When the means of program administration is potentially discriminatory individual applicants to public housing, for example, are not going to know they were denied due to discriminatory reasons. Therefore, they may not file a complaint. But that person filing a complaint does not mean the denial wasn't potentially discriminatory and isn't worth investigating.
We've been told to deprioritize disparate impact cases and given no guidance on what this means. Importantly, disparate impact allegations should be initially investigated under an intent lens (arlington heights) until it is clear there is no intent. Even in disparate act allegations, the only way to determine if there was intent to discriminate is to investigate the cases. To ignore this really means we are potentially denying justice to complainants. Because of our staffing levels at any point, but especially now, deprioritizing these cases simply means never reviewing them. On a monthly basis, we file (open) 250-325 new cases and resolve about 140 cases - there is simply more work to do than staff to do it.
In the past, we were encouraged to work with OGC and other HUD partners like PIH (Public and Indian Housing), that is no longer the case. FHEO also is not considering gender identity and sexual orientation discrimination in our work and is no longer taking reasonable accommodation or reasonable appraisal discrimination seriously. These are not civil rights issues that FHEO fabricated and pushed for ideological reasons. These are civil rights based on fair housing law act precedent. The idea that FHEO has been overly aggressive in fair housing enforcement and has not been in lock-step with actual case law is laughable. FHEO has expanded its enforcement of civil rights issues at about the same speed of case law; the idea that the federal government was pushing the envelope in ways not supported by case law is ridiculous. Let's be very clear here - when Assistant Secretary Trainor is talking about “restoring the fair housing act's constitutional limitations,' what he's actually talking about is reducing the scope of the fair housing act to what he is personally comfortable with. It has nothing to do with the constitution and certainly nothing to do with case law. What Secretary Trainor is doing is neither appropriate nor legal.
The fundamental changes in our work are certainly reflected in our work product metrics. Most notably, we issued 3 charges of discrimination in the last 365 days. For the 3 years prior, we issued over 52 on average each year. And not only did we resolve 300 fewer cases in the last calendar year than we did for the previous 3 years, but we administratively closed many more cases than ever. In the last calendar year, we withdrew from conciliation in more than 25% of them. In the previous 3 years, that number was less than 17% of cases. This should be alarming to everyone because it means many of these cases were likely closed for political reasons.
At a management level, we have a front-office that basically never speaks with staff. They make no effort to manage with respect or act like colleagues; they typically do not greet or acknowledge staff presence unless the employees greet them. It is abundantly clear they don't care about us as people or as employees - and they definitely do not care about including us in decisions of any kind, nor do they value our experience. My understanding is that directors with 10 or 20 years of experience meet with a 29 year old policy advisor; directors, or even Deputy Assistant Secretaries rarely interact with the Assistant Secretary.
—A civil servant
