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"Discrimination Against Participants in the Housing Choice Voucher Program: An Enforcement Strategy,"

by Isabelle M. Thabault & Eliza T. Platts-Mills January/February 2006 issue of Poverty & Race

In April 2005, the Washington Lawyers’ Committee for Civil Rights & Urban Affairs, on behalf of the civil rights advocacy group the Equal Rights Center, filed three complaints in DC Superior Court alleging area landlords had violated the DC Human Rights Act by refusing to rent to tenants who participate in the Housing Choice Voucher Program. The cases are based on testing conducted by the Equal Rights Center.

The Housing Choice Voucher Program (“Voucher Program”) is a federally-subsidized rental housing program designed to assist low-income families in moving from high-poverty to lower-poverty neighborhoods through use of a rental assistance voucher. Initiated in 1974, the Voucher Program is a popular alternative to high-rise public housing, which too often has the effect of concentrating low-income families in high-poverty neighborhoods. Formerly known as the Section 8 Voucher Program and the Section 8 Certificate Program, the Voucher Program involves, like its predecessors, the distribution of a voucher to participating families. The voucher can be used to pay part of the participant’s rent and in effect “travels” with the family in its search for housing. It is distinguished from the Section 8 project-based program, in which individual units are subsidized and participating families must live in those subsidized units. HUD oversees the program, which is administered by local public housing authorities.

The Voucher Program enables families to rent housing in the private market, provided the housing is within certain rent maximums and meets other program requirements. However, when real estate markets are tight and affordable housing is scarce, voucher-holders have a difficult time finding eligible rental units within the rent maximums. Compounding this problem is the refusal of some property owners and local real estate and property management companies to rent to applicants with housing vouchers. Landlords and management companies often refuse to rent to voucher households based on stereotypes about households who participate in public assistance programs, or as a guise for discrimination based on race or family status (having children under the age of 18).

Today, approximately 2 million low-income families across the country use housing vouchers to secure decent, affordable rental housing. In the District of Columbia, as of June 30, 2004, 9,772 low-income households were using housing vouchers to cover a portion of their monthly rent, and over 40,000 households were on the DC Housing Authority’s housing voucher waiting list. The 2004 Metropolitan Washington Council of Governments (COG) Assisted Housing Survey reports that the average annual income of housing voucher recipients in the District of Columbia as of September 30, 2004, was just over $11,000. According to information collected by HUD through December 31, 2005, approximately 13% of households with housing vouchers in the District of Columbia are elderly, and 58% are households with children. According to the 2004 COG survey, the average time an individual or family in DC spends on the housing voucher waiting list is approximately six years.

Thousands of voucher-holders, often after having waited years on the voucher waiting list, have had their vouchers expire because the household did not, within specified time limits, find housing where they could use the voucher. The Voucher Program provides that a voucher must be used within 180 days. In 2004, over 11% of new voucher-holders in the District of Columbia lost their vouchers because they did not, within that time period, find an apartment where they could use the voucher.

Housing vouchers may generally be used to rent any apartment, single-family home or townhouse available on the market, provided the rental amount and the condition of the unit meet defined standards. The housing must meet federally-established housing quality standards, similar to those imposed under local housing codes. In addition, federally-defined standards for housing vouchers set maximum “Fair Market Rents” for the relevant metropolitan area, rents deemed reasonable compared to the rents for similar housing in that area. Households participating in the Voucher Program pay 30% of their gross monthly income (adjusted to account for factors such as disability, dependents or excess medical costs) towards their monthly rent; the remainder of the rent is paid directly to the landlord by the local public housing agency. For 2005, the maximum monthly rents for which housing voucher recipients were eligible in the District of Columbia Metropolitan Area (which includes Montgomery County and Prince George’s County, Maryland, and Arlington County, Fairfax County, Alexandria City, Fairfax City and Falls Church City, Virginia) are: $915 for an efficiency apartment, $1,045 for a one-bedroom apartment, $1,187 for a two-bedroom apartment, $1,537 for a three-bedroom apartment and $2,000 for a four-bedroom apartment. Factors including family size and disability affect the size of the unit for which the voucher recipient is eligible.

According to the 2004 COG Survey, 97% of households using housing vouchers in the District of Columbia are African-American. 2000 Census figures indicate that among District of Columbia residents who rent, approximately 58% are African-American. Thus, a rental policy of not accepting housing vouchers has a significant disparate impact based on race.

Legal Prohibitions on Discrimination against Voucher-Holders

Since 1977, the DC Human Rights Act has prohibited private landlords from discriminating against tenants based on “source of income,” which is defined to include money secured from federal payments and specifically includes monetary assistance provided under the Section 8 program. In addition to the District of Columbia, 11 states (California, Connecticut, Maine, Maryland, Massachusetts, Minnesota, New Jersey, North Dakota, Oklahoma, Utah and Vermont) and numerous local governments, including Montgomery County and Howard County, Maryland, have enacted fair housing laws that prohibit source-of-income discrimination. (A complete listing of the jurisdictions with source- of-income provisions is available at http://www.prrac.org/pdf/Source_of_Income_Summary.pdf.) In addition, landlords participating in the federal Low Income Housing Tax Credit Program, which provides tax incentives to investors who develop low-income housing, are prohibited under federal law from discriminating against potential tenants because they have housing vouchers.

Testing of Housing Providers

In 2001 and 2002, the Equal Rights Center (ERC) received complaints from voucher-holders in the District of Columbia who complained that landlords were refusing to accept their housing vouchers. In response to these complaints, the ERC conducted a broad testing investigation of area landlords to determine the extent of illegal discrimination against voucher-holders.

From 2003 through 2005, the ERC conducted testing of rental properties advertised in local news media. Periodically over the three-year period, the ERC identified advertised rental properties with rents at or below the Fair Market Rent. The testers then contacted the housing provider listed in the advertisement to inquire about the availability of rental housing and disclosed that they would be using a housing voucher to pay part of the rent. Testers conducted 108 tests and contacted 75 apartment buildings and 13 property management companies. The investigation focused on determining the extent of discrimination against voucher-holders, as well as determining the variety of responses a voucher-holder may face when attempting to use his or her housing voucher.

The testing results revealed a surprisingly high level of blatant illegal discrimination against voucher-holders. In 58% of the tests, landlords either refused to accept vouchers, or placed significant limitations on their use. In 26% of the calls, the landlords or rental agents flatly told the testers that vouchers were not accepted as a form of rent payment under any circumstances. In 32% of the test calls, housing providers stated limitations or differential terms on use of the voucher that would prevent many or most voucher-holders from renting the available units, including that: an apartment building had reached its capacity for voucher-holders; rent was higher for voucher-holders; or only apartments of a certain size were available to voucher-holders. In some cases, testers were told that voucher-holders, who qualify for the housing subsidy by virtue of their low income, could be accepted for tenancy only if they earned as much money as non-voucher applicants. Some agents also indicated that their building did not pass code inspection. In 5% of the calls, housing providers expressed ignorance about the Voucher Program or indicated that they did not know their company’s policy with regard to vouchers. In only 37% of test calls did housing providers say that they accepted housing vouchers as a form of rent without limitation. Based on the number of units owned and managed by the landlords and property management companies tested, it is estimated that the discriminatory policies of the tested landlords effectively make well over 4,000 rental units in DC unavailable to tenants who use housing vouchers.

The ERC conducted additional follow-up testing of landlords who had discriminated in the initial testing investigation. Based on those testing results, on April 11, 2005, the Washington Lawyers’ Committee for Civil Rights & Urban Affairs filed complaints in DC Superior Court, on behalf of the ERC, against three large property management companies, Gelman Management Company, E&G Property Services and Sawyer Realty Holdings, alleging that the defendants discriminated on the basis of source of income, and race, in violation of the DC Human Rights Act, by refusing to rent to persons who intended to use housing vouchers to pay for part of their rent. The ERC has filed additional complaints against housing providers, based on testing results. To date, the ERC has filed 12 such complaints, five in DC Superior Court, seven with the DC Office of Human Rights, also alleging discrimination against voucher-holders in violation of the DC Human Rights Act. The DC Office of Human Rights has issued probable cause findings of source-of-income-based housing discrimination in two of the pending administrative cases against area real estate companies.

Thus far, five of the complaints have been successfully resolved through settlements or consent decrees. As part of these agreements, defendants will change their policies and rent to voucher-holders. Other terms of the settlements include fair housing training; an agreement to include in advertising a statement that vouchers are accepted; agreements on the calculation of income requirements for voucher-holders; and the payment of monetary damages to the ERC. Most significantly, the settlements achieved thus far have opened hundreds of units to voucher-holders in the District of Columbia.

Conclusion

Enforcement strategies that include testing and litigation can help open housing opportunities to low-income families. Studies have reported that rents in the District of Columbia have increased over 50% since 2001, and that vacancy rates have dropped. The combination of rising rents and fewer available apartments, abetted by discriminatory practices against low-income voucher recipients, has created a housing crisis for low-income tenants. Households in the District of Columbia, who wait on average over six years to receive a housing voucher, find that their housing options are further constricted by impermissible discrimination against voucher-holders. The enforcement program described in this article could be replicated in other jurisdictions where local or state civil rights laws include source-of-income provisions, and can be a powerful tool to combat discrimination against households who participate in the Housing Choice Voucher Program.

Isabelle M. Thabault is the Director of the Fair Housing Project at the Washington Lawyers' Committee for Civil Rights & Urban Affairs. Prior to joining the Committee, she was the Deputy Chief of the Housing and Civil Enforcement Section at the U.S. Justice Department, Civil Rights Division. Isabelle_Thabault@washlaw.org
 
Eliza T. Platts-Mills is a staff attorney with the Committee's Fair Housing Project. Eliza_Platts-Mills@washlaw.org
 
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