Landlords, leasing agents, and anyone answering phones beware of "testers" that set traps

Do a search for "fair housing testing jobs" and you'll find that the business of entrapping landlords is good. In this position, the tester is tasked with catching rental housing providers and their agents in the act of discrimination.

An employer is often an advocacy group funded by HUD to determine the likelihood that illegal housing discrimination is occurring.

Here are a couple of advertised positions we came across.

In this ad, the desired applicant is someone proficient in speaking Spanish.


Of course, there is a need for supervisory staff to manage a phalanx of testers, massage the data, and so forth, so there are many job postings for those positions but you get the point.


Posing as a bona fide renter strikes as fraud and deception?

Yes, but in case you were wondering, a 1982 U.S. Supreme Court decision upheld the use of testers in inquiries on housing bans as perfectly legal.

In this case, the landlord was sued after being misled by a tester. The landlord argued that the imposter does not suffer the kind of injury usually required to establish "standing" to commence a lawsuit. In other words, no harm, no foul. The high court rejected that argument in Havens Realty Corporation v. Coleman, No. 80-988.

A roundtable of the "Fair Housing Insiders" discusses some scenarios that rental housing providers are likely to encounter by testers.



Our concerns and recommendations

We are concerned about the endemic lack of training about fair housing laws and this deficit of training is especially problematic for property management companies that suffer from a high turnover rate.

If there is a revolving door of employees, there may be fatigue in training new employees that replace an outgoing one, but this step should never be overlooked.

Presumably, a leasing agent has some familiarity with fair housing laws, but with an ever-expanding class of individuals that fall in the category of a "protected" status and stiffening penalties, a refresher may be in order.

Pay careful attention to the person answering the phone. Whoever is the first point of contact had better have some understanding of what can be said and what terms to avoid.

Bornstein Law would be glad to furnish educational links to get the creative juices flowing when formulating a training program - email


Parting thoughts

Rental housing providers who engage in discriminatory practices are inviting a lawsuit, whether by Big Brother or by enterprising, private attorneys who put their children through private schools from the proceeds of a housing discrimination lawsuit.

Many of the lawsuits we see and sometimes have to defend against are not from overt discrimination but simple mistakes that can be avoided by creating a culture of welcoming all rental applicants.

For those of you who have been following us for some time, we are probably preaching to the choir. But even that statement may be considered discriminatory because it may be indicative of a religious preference.