How a HUD Complaint Works
August 1, 2019
From time to time, the Legal Helpdesk receives questions related to federal and state fair housing laws or the REALTOR® Code of Ethics. Additionally, the U.S. Department of Housing and Urban Development (HUD) frequently issues press releases pertaining to agency enforcement actions and/or settlements across the country. One question that often comes up is how the HUD fair housing complaint process actually works.
This article and the accompanying illustration provide some detail on how a complaint is initiated and what happens during the investigation and resolution process.
- A report of discrimination is filed with HUD (either at HUD Headquarters in Washington, D.C. or a Field or Regional HUD office). This can be done in person, by telephone, mail, facsimile, or online.
- That report is referred to HUD Intake Unit staff, who analyze the report to determine whether HUD has jurisdiction under the Fair Housing Act or other civil rights statute, and whether the report is sufficient to be “perfected” into a formal complaint.
- Evaluation is performed by an Equal Opportunity Specialist (EOS), and discrimination reports that are initially received are termed “inquiries.”
- The EOS who is assigned an “inquiry” has 20 days to review it and determine whether to “perfect” it. This process involves collecting information through a variety of sources including searching for information about the respondent (the person who has been complained about), and most importantly, determining whether HUD has jurisdiction over the inquiry.
- Intake involves an interview of the complainant, gathering information like names and address of the parties involved, description of the event(s) in question, and an explanation that a formal complaint cannot be made anonymously.
- Note: during the intake process, HUD specialists are instructed by HUD guidelines specifically not to contact respondents. The only notification that will be provided to a respondent is a formal complaint (which, also note, is not a formal decision regarding culpability, but is just that-a complaint).
- The four elements to establish HUD jurisdiction are:
- Standing: the person making the allegations must be an “aggrieved person” as defined under the Fair Housing Act, meaning that they have suffered an injury because of a discriminatory housing practice.
- Timeliness: the complaint must be filed within one year of the date of the most recent occurrence of the alleged discriminatory housing practice.
- Respondent Jurisdiction: whether the respondent is covered under the Fair Housing Act; certain persons are exempt from coverage under the Act, including certain single family houses owned by private individual owners, religious organizations, private clubs, and housing for the elderly.
- Subject Matter Jurisdiction: whether the statement of the alleged victim contains sufficient detail to show that the allegations describe unlawful discrimination in violation of the Act.
- If information provided in the report does not meet those four requirements, the EOS contacts the aggrieved party to request further information necessary to “perfect” the inquiry into a complaint.
- Once the EOS determines that sufficient information has been obtained to establish that the aggrieved person’s allegations contain the four elements of jurisdiction, the inquiry is filed in HUD’s system as a formal complaint.
- Note: if the EOS determines that the alleged violation is not covered by the Fair Housing Act, but that the violation might be covered by a state or local ordinance, the EOS may refer the person to the applicable state or local agency.
- In Alabama, the agency which administers and enforces the state fair housing law (codified at Ala. Code 24-8-1 et. seq) is the Alabama Department of Economic and Community Affairs (ADECA).
- If the report is approved to be issued as a formal complaint, HUD initiates an investigation.
- First, pursuant to Section 810(a)(1)(B) of the Fair Housing Act, HUD will serve notice to the respondent and aggrieved person that a complaint has been filed.
- The letter to the respondent contains a summary of the respondent’s procedural rights and obligations under the Fair Housing Act.
- HUD will assign one or more investigators to examine the allegations made in the complaint.
- Investigators will provide the respondent an opportunity to respond to the allegations in the complaint.
- Investigators will ask the aggrieved person about a timeline of the events in question, the location of the events, those present during the events, who else might have information related to the complaint, and any relevant documents.
- Note: HUD investigators have leeway in gathering evidence, including interviewing parties and witnesses, obtaining documents, and inspecting properties in question.
- Following the investigation, HUD will issue a written report of its findings.
- It is important to note that throughout this process, at any time the parties may resolve the complaint by a voluntary agreement which is submitted to HUD for approval.
- Following the investigation, HUD will issue a determination of whether reasonable cause exists that discrimination occurred.
- If HUD determines reasonable cause exists to believe that discrimination occurred, HUD may bring a Charge of Discrimination against the respondent.
- Respondents (and complainants) have 20 days following the issuing of such charge whether to move the case before a federal district court, or to keep the case within HUD to be heard by an Administrative Law Judge (ALJ).
- If neither party decides to move the case to federal court for a civil trial, HUD will schedule the hearing before an ALJ.
- Hearings before an ALJ are conducted near the locality where the discrimination allegedly occurred. Parties have the right to appear in person and have an attorney. Hearings are conducted in a similar manner to a trial, with cross examination of witnesses and discovery of evidence.
- Note: ALJs are lawyers who adjudicate cases dealing with specified areas of law governed by a particular agency, who are independent of the agency’s supervision or direction.
- ALJs can order compensation for damages as well as relief for complainants and against respondents (i.e., making housing available for the complainant, and prohibiting future discrimination by the respondent).
- If a HUD ALJ issues an order against the respondent, the respondent may appeal that decision to the Secretary of HUD.
- The Secretary of HUD can choose to uphold or reverse the ALJ’s decision. The Secretary may also choose to impose higher penalties than imposed by the ALJ.
- Respondents may petition for review of the Secretary’s decision directly to a federal circuit court of appeals (typically, these are filed in the D.C. Circuit Court of Appeals since the office of the Secretary is located in D.C.).
- If either party elects a civil trial, HUD refers the case to the U.S. Department of Justice (DOJ), which then files a lawsuit in the federal district court where the discrimination occurred.
- Judges may order the same types of relief as HUD ALJs, except that while ALJs can order the payment of a civil fine “in the public interest,” judges can order the payment of punitive damages to the complainant.
- Complainants also have the option, even after filing a complaint with HUD, to file a civil lawsuit in federal court directly within 2 years of a discriminatory action. However, such lawsuits cannot proceed if a HUD-approved conciliation agreement has been signed or a HUD ALJ has commenced proceedings for hearing the complaint.
Please note that this document should not be considered legal advice. For a legal opinion on questions you may have about a HUD complaint, please consult with an attorney.
Sources: HUD TITLE VIII Complaint Intake, Investigation, and Conciliation Handbook 8024.01, REV–2; HUD Guidance on FHEO Complaint and Investigation Process, available here.
Recommended Reading: National Association of REALTORS®, “What Everyone Should Know About Equal Opportunity Housing,” available here.