A little fair housing inside baseball this week which was prompted by a question from a client. Our federal Fair Housing Act (FHA) is officially known as Title VIII of the Civil Rights Act.  Some parts of the FHA were taken from Title VII of the Civil Rights Act, which involves prohibitions against employment discrimination.  So, while many portions of the statutes are similar, there is a significant difference which can impact many cases.

Before someone can file an employment discrimination case in state or federal court, he or she must have filed an administrative complaint with the federal Equal Employment Opportunity Commission (EEOC) (or its state equivalent) and have received a Right to Sue Letter from the EEOC (or state agency). If a plaintiff does not go through the administrative hurdle, counsel for the employer will file a motion to dismiss and the judge will dismiss the civil complaint pursuant to what is known as failure to exhaust administrative remedies.

Our fair housing world, however, is different.  FHA practice does not require the intermediate step of filing a discrimination complaint with HUD (or a state, city, or county counterpart). So, while a plaintiff may file an administrative complaint with HUD, he or she is not required to go through that step.  Indeed, the law even provides that if, for example, a HUD administrative complaint is filed and then dismissed as there was No Probable Cause to believe any prohibited conduct took place, the plaintiff can then try again in state or federal court.  Yes, it is truly a second bite at the apple.

My client was disappointed in that even though we were successful in obtaining a complete dismissal on the merits from HUD, the resident could sue us again for the exact same conduct.  All is not lost, however.  If we get sued that second time, most likely: (1) we know all the evidence;  and (2) HUD is not going to intervene on behalf of the resident.  In other words, the plaintiff will need to hire private counsel or go it alone.

Just A Thought.