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Federal Housing Policy: From Disappointing Regulatory Proposals to Inspiring Enforcement Actions

posted on Tue, Dec 17 2019 12:00 pm by Kathi Hoke

Access to affordable, healthy housing is critical to public health. In his annual message for 2019, the Robert Wood Johnson Foundation’s CEO, Dr. Richard Besser, focused on just one issue rather than discussing the myriad public health issues important to the Foundation. That issue? Healthy Housing. Dr. Besser framed his comments around the core premise that “[o]ur homes are key to our health.”

In October 2019, the Foundation stepped even farther into the housing realm by submitting comments in response to a regulatory change proposed by the U.S. Department of Housing and Urban Development (HUD), criticizing the proposal as increasing the burden on plaintiffs seeking to prove that a housing practice has an unlawful discriminatory impact on certain populations. According to Dr. Besser, “HUD’s proposed changes would make it nearly impossible to prove housing discrimination using the [disparate impact] standard, further hurting individuals and communities already facing significant prejudice in rental and mortgage lending decisions.” The Foundation’s website has significant resources reflecting this commitment to supporting public health by addressing housing needs.

As HUD’s proposed regulation moves through the regulatory process, another federal agency—the Department of Justice (DOJ)—continues to do its part to prevent discrimination in housing. DOJ’s Housing and Civil Enforcement Section investigates and takes action to prevent discrimination and to punish those who engage in unfair and illegal housing practices, primarily through enforcement of the Fair Housing Act. The Act prohibits housing practices, which include mortgage lending practices, that discriminate on the basis of race, color, national origin, religion, sex, familial status, or disability.

A visit to the housing cases page reveals the breadth of the cases pursued by the Housing and Civil Rights Section. Recently filed cases include one alleging that Hispanic mortgagees were targeted for lending practices that resulted in foreclosure on their properties; another alleging that more than 6,000 apartments in New York City were constructed without required accessibility features, making the units unfit for certain disabled individuals; and a case out of Hesperia, California, in which the DOJ alleges that the City adopted a housing ordinance that is designed to drive out African American and Latino renters and that the Sheriff enforced the law to have that discriminatory impact.

While law and policy changes to improve access to affordable, healthy housing are important, enforcement litigation plays a role as evidenced by recent consent decrees entered in cases brought by the DOJ’s Housing and Civil Enforcement Section. For example, DOJ entered into a consent decree with the City of Bridgeport, Connecticut Public Housing Authority (BPHA) requiring the BPHA to “institute broad reforms to safeguard the rights of individuals with disabilities, including revising its policies and processes for handling reasonable accommodation requests and developing an inventory of accessible units for tenants with mobility, vision, and hearing-related disabilities.” BPHA also agreed to pay $1.5 million to those harmed by the discrimination and $25,000 as a penalty. And consistent with DOJ’s declared policy of seeking to protect against sexual harassment in housing, the DOJ settled a case in which a landlord was alleged to have engaged in sexual harassment of female tenants and potential tenants. The landlord agreed to pay in excess of $1 million in damages and is forbidden from participating in the rental or management of residential properties.

Public health leaders recognize the profound role housing plays in the health of individuals and of communities. The Network for Public Health Law eagerly seeks to work across sectors, including with attorneys and others working in the housing sector, to provide critical research, best practices, and other information needed for the drafting, adoption, and implantation of evidence-based law and policy to improve access to affordable, healthy housing. At the same time, we laud the DOJ Housing and Civil Enforcement Section for its significant work to enforce the Fair Housing Act.

 

This blog was developed by Kathleen Hoke, J.D, Director, Network for Public Health Law – Eastern Region Office.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not necessarily represent the views of, and should not be attributed to, RWJF.

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