As has been written in this space more than once, our Fair Housing Act (FHA) prohibits a variety of discriminatory conduct concerning the sale, rental or financing of residential housing. While lawsuits often are brought by individuals who have directly suffered from housing discrimination, it is also common for cases to be filed by what are known as “testers” or by the organizations that employ such testers. What is a tester and how is it that they have standing to bring suit under the FHA? And why is the use of tester evidence potentially problematic?

The issue of “tester standing” was first addressed by the Supreme Court in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1981). The Supreme Court defined testers as “individuals who, without an intent to rent or purchase a home or apartment, pose as renters or purchasers for the purpose of collecting evidence of unlawful steering practices.” While some would argue that any evidence presented by someone who admits he or she is not being truthful (because they have no real interest in renting or buying the apartment/home) should be considered suspect at best, courts routinely allow testers to testify, and rarely discount the reliability of their testimony.

In the Havens case, the Supreme Court held that testers who receive misrepresentations from renters, sellers, or brokers of real estate have standing to sue under the FHA. The Court reasoned that the FHA creates legal rights, including the right to receive truthful information concerning the availability of housing, that automatically create standing if that right is violated. Therefore, if a tester inquires and the landlord/owner misrepresents the availability of that apartment, the tester obtains standing to sue under the FHA, even if “the tester may have approached the real estate agent fully expecting that he would receive false information, and without any intention of buying or renting a home… .”

Havens also set the ground for fair housing organizations to bring suit under the FHA. Both of the Havens testers were employed by such an organization, which claimed that it had standing because it had been “frustrated by defendants’ racial steering practices in its efforts to assist equal access to housing through counseling and other referral services.” In addition, the organization claimed that it “had to devote significant resources to identify and counteract the defendant’s [sic] racially discriminatory steering practices.” The Supreme Court held that this allegation of injury-in-fact sufficiently granted the organization standing to bring suit, though the Court noted that the organization would still have to actually prove that it suffered demonstrable injury before it could recover.

This issue of standing may be starting to change, at least a little. In La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083 (9th Cir. 2010), the Ninth Circuit made it more difficult for tester organizations to establish standing. In its decision, the court wrote that a fair housing organization could not “manufacture an injury by incurring litigation costs or simply choosing to spend money fixing a problem that otherwise would not affect the organization at all.” While this is still good law in the Ninth Circuit, the view has neither been adopted nor rejected by the other circuit courts around the country.  It is a legal issue that all who are involved in fair housing should follow.

Just A Thought.