Measuring the Health, Sociological, Education and Economic Damages of Housing Discrimination San...

Measuring the Health, Sociological, Measuring the Health, Sociological, Education and Economic Damages of Education and Economic Damages of

Housing DiscriminationHousing DiscriminationSan Diego Fair Housing Laws and San Diego Fair Housing Laws and

Litigation ConferenceLitigation ConferenceFebruary 12, 2015February 12, 2015

Scott Chang - Relman Dane & Colfax PLLCScott Chang - Relman Dane & Colfax PLLC

Lack of Housing EqualityLack of Housing Equality

Discrimination in sales marketDiscrimination in sales market Discrimination in rental marketDiscrimination in rental market Discrimination in mortgage marketDiscrimination in mortgage market Exclusionary zoningExclusionary zoning

Lack of Housing Equality May Lack of Housing Equality May Result InResult In::

■ ■ Lower homeownership rates among racial/ethnic Lower homeownership rates among racial/ethnic minoritiesminorities

■ ■ Limited access to low poverty neighborhoodsLimited access to low poverty neighborhoods

■ ■ Higher rates of inadequate housingHigher rates of inadequate housing

■ ■ Higher probability of obtaining subprime mortgageHigher probability of obtaining subprime mortgage

■ ■ Low income homeownership and rental projects Low income homeownership and rental projects concentrated in segregated, high poverty neighborhoodsconcentrated in segregated, high poverty neighborhoods

■ ■ Limited availability of affordable housing in suburban Limited availability of affordable housing in suburban neighborhoodsneighborhoods

Effects on Health, Effects on Health, Employment and EducationEmployment and Education

Exposure to Environmental HazardsExposure to Environmental Hazards Limited health promoting features (e.g. Limited health promoting features (e.g.

walkability, access to healthy foods)walkability, access to healthy foods) Socioeconomically disadvantaged social Socioeconomically disadvantaged social

networksnetworks Limited socioeconomic advancementLimited socioeconomic advancement High stressHigh stress Lower wealth accumulationLower wealth accumulation

Effects on Health, Effects on Health, Employment and EducationEmployment and Education

Limited access to suburban areas with most job Limited access to suburban areas with most job opportunities and best public schoolsopportunities and best public schools

Damages in Fair Housing CasesDamages in Fair Housing Cases

Tangible Damages: Economic losses, Tangible Damages: Economic losses, medical costs, moving expensesmedical costs, moving expenses Intangible Damages: Emotional distress, Intangible Damages: Emotional distress, humiliationhumiliation Civil Penalty/Punitive DamagesCivil Penalty/Punitive Damages

Cases Where Cases Where Settlements/Judgments May Settlements/Judgments May

Reflect Community HarmReflect Community Harm

Settlements and judgments often fail to Settlements and judgments often fail to account for harm to community caused by account for harm to community caused by housing inequalityhousing inequalityDepartment of Justice settlements in Department of Justice settlements in lending and insurancelending and insurancePrivate settlements with City as PlaintiffPrivate settlements with City as PlaintiffCases involving Organizational PlaintiffsCases involving Organizational Plaintiffs

Where are We: Damages in Fair Where are We: Damages in Fair Housing CasesHousing Cases

Surveyed HUD ALJ decisions and judgments Surveyed HUD ALJ decisions and judgments reported on Westlaw since 2002reported on Westlaw since 2002 Limitations: 1. Does not include settlements Limitations: 1. Does not include settlements because monetary relief and attorneys’ fees are because monetary relief and attorneys’ fees are usually combined; 2. Does not include judgments usually combined; 2. Does not include judgments not reported on Westlaw 3. Includes default not reported on Westlaw 3. Includes default judgmentsjudgments Judgments and verdicts against municipal Judgments and verdicts against municipal defendants may skew resultsdefendants may skew results

Damages in Fair Housing CasesDamages in Fair Housing Cases

Tangible Damages: Economic losses, Tangible Damages: Economic losses, medical costs, moving expensesmedical costs, moving expenses Intangible Damages: Emotional distress, Intangible Damages: Emotional distress, humiliationhumiliation Civil Penalty/Punitive DamagesCivil Penalty/Punitive Damages

Damages in Fair Housing Cases Damages in Fair Housing Cases – ALJ Cases– ALJ Cases

Tangible DamagesTangible Damages High: $10,000 ($5K Diversion, $5K Frustration); High: $10,000 ($5K Diversion, $5K Frustration); $8,920 (costs of angioplasty)$8,920 (costs of angioplasty) Low:0Low:0 Average: $4,228Average: $4,228

Intangible DamagesIntangible DamagesHigh: $62,500High: $62,500 Low: $150Low: $150 Average: $27,030Average: $27,030


Civil PenaltyCivil Penalty High: $16,000High: $16,000 Low:0Low:0 Average: $6,230Average: $6,230


Average Award to Complainant (Tangible Average Award to Complainant (Tangible and Intangible): $23,273and Intangible): $23,273


TrendsTrends Caveat: few casesCaveat: few cases Slight trend towards higher awardsSlight trend towards higher awards Awards higher in race casesAwards higher in race cases

Damages in Fair Housing Cases Damages in Fair Housing Cases – Court Verdicts and Judgments– Court Verdicts and Judgments

26 Verdicts and Judgments26 Verdicts and JudgmentsCompensatory (Tangible and Intangible Compensatory (Tangible and Intangible Combined)Combined) Punitive DamagesPunitive Damages Strongest cases usually don’t go to trialStrongest cases usually don’t go to trial Cases involving municipal defendants are Cases involving municipal defendants are difficult to settledifficult to settle


CompensatoryCompensatory High: $967,000High: $967,000 Low: $452Low: $452 Average: $124,030Average: $124,030

Punitive DamagesPunitive Damages High: $1,055,000 to Eleven Pl.; $325,000 (individual High: $1,055,000 to Eleven Pl.; $325,000 (individual case)case) Low: $ 5,000Low: $ 5,000 Average: $167,000Average: $167,000


Combined Compensatory and PunitiveCombined Compensatory and Punitive High: $1,104,000High: $1,104,000 Low: $ 6,870Low: $ 6,870Average: $246,000Average: $246,000


TrendsTrends Largest awards in land use and zoning Largest awards in land use and zoning cases involving housing developers seeking cases involving housing developers seeking to build housing for people with disabilities to build housing for people with disabilities and sexual harassment casesand sexual harassment cases Better damages in court casesBetter damages in court cases Trend towards higher damagesTrend towards higher damages

Lost Housing OpportunitiesLost Housing Opportunities

Three TypesThree Types Physical attributes of alterative housing inferior to Physical attributes of alterative housing inferior to

housing soughthousing sought Housing had unique value to plaintiffs/complainantsHousing had unique value to plaintiffs/complainants Housing sought provided plaintiffs with greater Housing sought provided plaintiffs with greater

access to opportunitiesaccess to opportunities Alan W. Heifitz and Thomas C. Heinz, Separating Alan W. Heifitz and Thomas C. Heinz, Separating

the Objective, the Subjective and the Speculative: the Objective, the Subjective and the Speculative: Assessing Compensatory Adjudications, 26 J. Assessing Compensatory Adjudications, 26 J. Marshall L.J. 3 (1992) Marshall L.J. 3 (1992)


According to recent HUD cases, damages for According to recent HUD cases, damages for lost housing opportunities are not a separate lost housing opportunities are not a separate category of damages where other categories of category of damages where other categories of damages are sufficient to compensate damages are sufficient to compensate complainants. HUD v. Corey, complainants. HUD v. Corey, 11-M-207-FH-27, 11-M-207-FH-27, 2012 WL 2951587 (HUD ALJ July 16, 2012) 2012 WL 2951587 (HUD ALJ July 16, 2012)

Significant Awards of Damages for Significant Awards of Damages for Lost Housing OpportunitiesLost Housing Opportunities

HUD ALJ AwardsHUD ALJ Awards HUD v. Kogut, No. 09-93-1245-1, 1995 WL 225277 (HIUD HUD v. Kogut, No. 09-93-1245-1, 1995 WL 225277 (HIUD

ALJ Apr. 17, 1995) ($25,000 award for intangible damages ALJ Apr. 17, 1995) ($25,000 award for intangible damages including lost housing opportunities where alternative housing including lost housing opportunities where alternative housing was located on the third floor, had an intercom system and was located on the third floor, had an intercom system and was located in a safe crime free area) (sexual harassment) was located in a safe crime free area) (sexual harassment)

HUD v. Burns Trust, No. 09-92-1622-1, 1994 WL 2672260 HUD v. Burns Trust, No. 09-92-1622-1, 1994 WL 2672260 (HUD ALJ June 17, 1994) ($30,000 and $50,000 award for (HUD ALJ June 17, 1994) ($30,000 and $50,000 award for intangible damages including lost housing opportunities where intangible damages including lost housing opportunities where lost housing was located in manicured mature neighborhood lost housing was located in manicured mature neighborhood close to transportation and shopping and alternative housing close to transportation and shopping and alternative housing was located in noisy unattractive neighborhood that needed was located in noisy unattractive neighborhood that needed repairs) (Disability discrimination)repairs) (Disability discrimination)

Significant Awards of Damages for Significant Awards of Damages for Lost Housing OpportunitiesLost Housing Opportunities

Court AwardsCourt Awards Short v. Manhatten Apartments, Inc., 916 F. Short v. Manhatten Apartments, Inc., 916 F.

Supp. 2d 375 (S.D.N.Y. 2012) (noting that Supp. 2d 375 (S.D.N.Y. 2012) (noting that “Defendants’ refusal to show Mr. Short available “Defendants’ refusal to show Mr. Short available apartments reduced his opportunity to find apartments reduced his opportunity to find suitable housing and resulted in Mr. Short’s suitable housing and resulted in Mr. Short’s prolonged stay in an unsanitary SRO” and prolonged stay in an unsanitary SRO” and awarding $20,000 in damages)awarding $20,000 in damages)

Case Study: Lost Housing Case Study: Lost Housing OpportunitiesOpportunities

United States v. Hylton, 944 F. Supp. 2d 176 (D. Conn. 2013)United States v. Hylton, 944 F. Supp. 2d 176 (D. Conn. 2013) Discriminatory refusal to subletDiscriminatory refusal to sublet Owner said that he did not want too many black people at Owner said that he did not want too many black people at the propertythe property Owner said that he only rent to tenants because wife was Owner said that he only rent to tenants because wife was white and “it was a good mix”white and “it was a good mix” Owner said that neighbors would not want too many black Owner said that neighbors would not want too many black people in the neighborhoodpeople in the neighborhood Owner told tenants to find some good white people who can Owner told tenants to find some good white people who can afford the property because Ms. Wilson would not be able to afford the property because Ms. Wilson would not be able to paypay


Prospective subtenant could not find a home in Prospective subtenant could not find a home in Windsor LocksWindsor Locks

She testified that she was confused by owner’s She testified that she was confused by owner’s comments and disappointed that she would comments and disappointed that she would have to keep looking for another place to live have to keep looking for another place to live


Lance Freeman, Ph.DLance Freeman, Ph.D Neighborhood effects theory – neighborhoods Neighborhood effects theory – neighborhoods

affect life changesaffect life changes Neighborhood affects types of friends and Neighborhood affects types of friends and

acquaintances, types of schools and good and acquaintances, types of schools and good and services available, and exposure to crime and services available, and exposure to crime and environmental hazardsenvironmental hazards


Indicators: poverty rate, proportion of public Indicators: poverty rate, proportion of public assistance, female-headed households, assistance, female-headed households, unemployment rate, proportion under age 18, unemployment rate, proportion under age 18, proportion non-Hispanic Black, median proportion non-Hispanic Black, median household income, homeownership ratehousehold income, homeownership rate


North End of Hartford: lower percentage of white North End of Hartford: lower percentage of white residents, higher rate of unemployment, greater residents, higher rate of unemployment, greater percentage of residents on food stamps, higher percentage of residents on food stamps, higher percentage of female-headed households, significantly percentage of female-headed households, significantly higher crime ratehigher crime rate Expert: More opportunity and greater upward mobility Expert: More opportunity and greater upward mobility in Windsor Locksin Windsor Locks Court accepted expert’s conclusionsCourt accepted expert’s conclusions Awarded plaintiff $20,000 for lost housing Awarded plaintiff $20,000 for lost housing opportunitiesopportunities


Will courts and ALJs award significant damages Will courts and ALJs award significant damages for lost housing opportunities even in conjunction for lost housing opportunities even in conjunction with substantial damage awards for emotional with substantial damage awards for emotional distress?distress?

Lost Access to a CommunityLost Access to a Community

Kathleen C. Engel, Moving Up the Residential Kathleen C. Engel, Moving Up the Residential Hierarchy, 77 Wash.U.L.Q. 1153 (1999)Hierarchy, 77 Wash.U.L.Q. 1153 (1999)

(Difference in rent between comparable housing (Difference in rent between comparable housing in the community where housing was sought and in the community where housing was sought and the community where alternative housing is the community where alternative housing is located) X (length of lease of alternative located) X (length of lease of alternative housing) or (number of months from housing) or (number of months from discriminatory act to trial or hearing)discriminatory act to trial or hearing)

Frustration of Mission DamagesFrustration of Mission Damages

Frustration of Mission damages can “include what it would cost the organization to redress the harm done by the defendants to the community at large and to the organization's mission.”

Cmty. House, Inc. v. City of Boise, Idaho, No. 1:05-CV-00283-CWD, 2014 WL 345630, at *10 (D. Idaho Jan. 30, 2014)

Frustration of Mission DamagesFrustration of Mission Damages

Awarding organization serving the homeless whose mission included providing services to men, women and children $1 million in frustration of mission and other damages after city selected a different organization to run the shelter and the shelter would be operated as a men only shelter based on testimony regarding the costs of operating the shelter for men, women and children for one year

Other Theories to Increase Other Theories to Increase DamagesDamages

Increased Damages for Testers and Fair Increased Damages for Testers and Fair Housing OrganizationsHousing Organizations

Alex S. Navarro, Bona Fide Damages for Tester Alex S. Navarro, Bona Fide Damages for Tester Plaintiffs: An Economic Approach to Private Plaintiffs: An Economic Approach to Private Enforcement of Antidiscrimination Statutes, 81 Enforcement of Antidiscrimination Statutes, 81 Geo. L.J. 2727 (1993)Geo. L.J. 2727 (1993)

Enhanced Punitive Damages Should Be Awarded Enhanced Punitive Damages Should Be Awarded to Fair Housing Testers and Fair Housing to Fair Housing Testers and Fair Housing OrganizationsOrganizations

Enhanced Punitive Damages for Testers Enhanced Punitive Damages for Testers and Fair Housing Organizationsand Fair Housing Organizations

Private enforcement remains crucialPrivate enforcement remains crucial Testing may be the only means of detecting Testing may be the only means of detecting

discrimination and therefore is important to enforcementdiscrimination and therefore is important to enforcement Fair housing organizations and testers need an incentive Fair housing organizations and testers need an incentive

to bring suitto bring suit Fair housing organizations and testers act as Fair housing organizations and testers act as

representatives of undetected, detected by not representatives of undetected, detected by not prosecuted or unsuccessfully prosecuted homeseekersprosecuted or unsuccessfully prosecuted homeseekers

Housing providers who engage in discrimination need to Housing providers who engage in discrimination need to be deterred be deterred

Increased Damages for Fair Housing Increased Damages for Fair Housing Testers and Fair Housing OrganizationsTesters and Fair Housing Organizations

Enhanced Punitive Damages = (Compensatory Enhanced Punitive Damages = (Compensatory damages awarded to bona fide homeseekers) – damages awarded to bona fide homeseekers) – (Compensatory damages awarded tester or fair (Compensatory damages awarded tester or fair housing organization)housing organization)

End Restrictions on Punitive DamagesEnd Restrictions on Punitive Damages

Timothy J. Moran, Punitive Damages in Fair Housing Timothy J. Moran, Punitive Damages in Fair Housing Litigation: Ending Unwise Restrictions on a Litigation: Ending Unwise Restrictions on a Necessary Remedy, 36 Harv. C.R.-C.L. Law Rev. Necessary Remedy, 36 Harv. C.R.-C.L. Law Rev. 279 (2001)279 (2001)

End requirement that compensatory damage award End requirement that compensatory damage award must accompany punitive damage awardmust accompany punitive damage award

Allow vicarious liability for punitive damagesAllow vicarious liability for punitive damages End requirement that punitive damages must meet a End requirement that punitive damages must meet a

higher standard to be awarded – punitive damages higher standard to be awarded – punitive damages are appropriate in every intentional discrimination are appropriate in every intentional discrimination casecase

End Restrictions on Punitive DamagesEnd Restrictions on Punitive Damages

End restrictions on excessive punitive End restrictions on excessive punitive damage awardsdamage awards

Provide for Treble Damages Provide for Treble Damages under the FHAunder the FHA

Michael Selmi, Public v. Private Michael Selmi, Public v. Private Enforcement of Civil Rights: The Case of Enforcement of Civil Rights: The Case of Housing and Employment, 45 U.C.L.A. Housing and Employment, 45 U.C.L.A. Law Rev. 1401 (1998)Law Rev. 1401 (1998)

Provide for treble damages similar to anti-Provide for treble damages similar to anti-trust lawtrust law

Treble damages in addition to punitive Treble damages in addition to punitive damages?damages?

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