OPPONENT TESTIMONY for SubstituteSenate Bill 134
Senate Civil Justice Committee
October 7, 2015
Susan Scovill, Esq., Fair Housing Consultant
Chairman Bacon, and members of the Senate Civil Justice Committee, thank you for the opportunity to provide opponent testimony on Substitute Senate Bill 134 today.
My name is Susan Scovill. I am an attorney and fair housing consultant, based in Richmond, Virginia, with 30 years’ experience in fair housing enforcement, education, and research. I have worked in fair housing as a private attorney; as director of the Virginia Fair Housing Office, a FHAP agency; as Director of Fair Housing Education and Enforcement for a non-profit fair housing organization; and as a faculty member and Director of Curriculum and Instruction for the National Fair Housing Training Academy, the HUD-sponsored educational institution for federal, state, and local fair housing investigators. I have conducted and reviewed thousands of fair housing tests for enforcement, audits, and national testing research studies. I have testified in federal court as an expert witness on testing.
I realize that testing issues are not in the bill before you, but I also understand that testing has been mentioned as a concern in several of the proponents’ testimony for Senate Bill 134 as introduced. I am submitting this written testimony as a testing expert to clarify and address those concerns.
Testing is a legitimate, essential, and legally recognized investigative tool for uncovering discriminatory housing practices. Testing has been used for 40 years to determine whether or not discrimination may be occurring. Testing is routinely conducted by fair housing organizations across the nation and testing programs have been conducted by the Department of Justice. The Department of Housing and Urban Development (HUD) has funded national research testing studies since the late 1970’s to measure the incidence of discrimination and has funded the testing programs of hundreds of fair housing organizations since 1987.
Over the years, housing discrimination has changed in its outward appearance. Instead of a slammed door, unsuspecting home-seekers may experience a revolving door and may be politely turned away from the housing of their choice, even though they are qualified for that housing. Housing discrimination is often cleverly disguised with a smile and a handshake instead of a slammed door.
Housing discrimination and segregation diminish everyone. They strike at the heart of the American Dream – the right to live in the home of one’s choice. But how do we know if someone is lying about availability of a home or apartment, a housing loan, or home insurance? How do we know if someone is offered different terms and conditions based on one of the protected classes?
It is settled law that testing is an appropriate investigative technique for identifying potential discriminatory practices. Testers are entitled to truthful information about the availability of housing and testing organizations have standing to bring cases based on testing evidence. The Supreme Court in their unanimous 1982 decision in the Havens case stated that “(t)esters are individuals who, without an intent to rent or purchase a house or apartment, pose as renters or purchasers for the purpose of collecting evidence…” The Court stated that the fact that the tester may have approached the broker fully aware that the tester might receive false information, or without any intention of buying or renting a home, does not deprive the tester of his or her right to receive truthful information. The Supreme Court decision stands for the proposition that testing is a legitimate and necessary method of uncovering and detecting housing discrimination. The courts have accepted tester evidence because those who violate the law often disguise the impropriety of their actions. (Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S. Ct. 1114 (1982).
Courts across the nation have long recognized testing as an essential means of identifying discrimination. “The evidence resulting from the experience of testers is admissible to show discriminatory conduct on the part of defendants. The Fair Housing Act of 1968 was intended to make unlawful simpleminded as well as sophisticated and subtle modes of discrimination. It is the rare case today where the defendant either admits his illegal conduct or where he sufficiently publicizes it so as to make testers unnecessary. For this reason, evidence gathered by testers may be the only competent evidence available to prove that the defendant has engaged in unlawful conduct.” Zuch v.Hussey, 394 F. Supp. 1028, (E.D. MI 1975).
“It is frequently difficult to develop proof in discrimination cases and the evidence provided by testers is frequently valuable, if not indispensable. It is surely regrettable that testers must mislead commercial landlords and home owners as to their real intentions to rent or buy housing. Nonetheless, we have long recognized that this requirement of deception was a relatively small price to pay to defeat racial discrimination. The evidence provided by testers both benefits unbiased landlords by quickly dispelling false claims of discrimination and is a major resource in society's continuing struggle to eliminate the subtle but deadly poison of racial discrimination. We have discovered no case in which the credibility of testimony provided by a tester has been questioned simply because of the tester's "professional" status. Indeed, tester evidence may well receive more weight because of its source. Testers seem more likely to be careful and dispassionate observers of the events which lead to a discrimination suit than individuals who are allegedly being discriminated against. In sum, we see no reason to question the credibility of [the tester] simply on the grounds that she was acting as a tester and find that plaintiffs are entitled to a new trial because of the district court's incorrect treatment of [the tester’s] key testimony.” Richardson v. Howard, 712 F.2d 319 (7th Cir. 1983)
Testing is not entrapment or “bounty hunting” as has been suggested by some proponents of Senate Bill 134 as introduced. It is an objective observation of the regular behavior of a housing provider that can reveal whether or not there is different treatment based on membership in a protected class, identify discriminatory policies and practices, confirm compliance with accessibility requirements, and assess the willingness of housing providers to make required reasonable accommodations or modifications for people with disabilities. More often than not, testing does NOT reveal discriminatory practices and provides information resulting in a complaint NOT being filed.
Thank you for the opportunity to provide written testimony.
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