"I didn't know there was going to be a test!" Some community owners believe it is easy to get away with violating fair housing laws and would think nothing of turning down an applicant for any reason at all. Green illustrates some of the steps and strategies that testers use to expose such illegal practices.

Members who take seriously the need to manage their community in compliance with the Fair Housing Act probably do not need to read this article. If good policies and procedures are being practiced--ones that have been well thought out, written down, followed and documented--there is hardly the need to continue.

Community managers who train their employees--all of them--and convey the message that they expect equal housing opportunities to be offered to all prospects, applicants and residents, should feel secure in their compliance with fair housing. They probably won't benefit from what is presented in this article. They will, however, gain the satisfaction of knowing that what they are doing is in the right.

Owners who believe that they can run a community anyway they like, and that equal housing laws be darned, might want to read on. This group must become aware of strategies being used by advocates, testers, and lawyers, etc., who are not afraid to look away from what the law requires.

Testing is alive and well, and testers are alive and well instructed. In fact, a program at The John Marshall Law School's[R] Fair Housing Legal Support Center held in April 2002 was attended by more than 200 people. They were taught about testing and investigating fair housing violations.

The information and educational information presented during this course was noteworthy. The high degree of dedication and passion shown by the attendees about maintaining compliance with fair housing law was evident, too. Make no mistake: this group is on a mission to ferret out acts of unlawful housing discrimination; and to make those who commit such acts pay, accordingly.

Generally, those in the multifamily industry consider testing to be a traditional event whereby people come to a community, pose as prospects and evaluate the community's response to their situation. These testers might represent different races or ethnic groups, or perhaps are disabled/non-disabled or with/without children. Based on local laws, the tests might even be tape-recorded or videotaped. Testing remains a core tool used to expose and prove housing discrimination.

It is not uncommon that testers encounter an owner who has made up reasons to cover up discrimination.

"Oh, it wasn't because they were Mexican that we didn't rent to them, it was because of their credit," one might say, even though Anglos with equally poor credit have gained approval to rent.

Or, "Oh, we like children, but that family didn't make enough money to live here," another might say, even when adult-only applicants with similar incomes were approved to rent.

The legal term for such creative rejections is "pretext." It is present when a false reason or motive is given to cover up the true reason or motive. Applicants who feel they were treated unfairly through pretext must prove that pretext was applied.

Owners who knowingly and willfully do not act in accordance with fair housing laws might believe that it is difficult to prove pretext. Wrong. Because, in addition to traditional testing, many effective strategies exist and are used by the aforementioned advocates, testers, lawyers, etc. For example:

* The applicant's paperwork may be requested or ultimately subpoenaed. This leads to the files being scrutinized by authorities who will compare the credit reports of Anglos who were accepted with Mexicans who were denied; or they will compare the incomes of current residents without children with applicants who have children. Be mindful that such documentation must support the owner's decision to accept or reject.

* Data that applies to a community may be requested or subpoenaed. Owners must be leery of what the statistics show regarding its past and present prospects and residents.

* When files scrutinized by authorities suggest inconsistencies or a lack of compliance with law, the applicants themselves may be contacted. Owners must be confident that the reasons given for denial are legitimate.

* Ex-employees may be interviewed. This can take place early in the process, even before any formal allegations have been made about unfair practices. What former employees say about an owner and decisions made in the past about the acceptance or rejection of a prospect can carry a lot of weight.

* Past and present residents may be interviewed. This can take place early in the process. Owners should be concerned about what stories might be told by these residents.

Be mindful that while an owner might find it easy to discriminate, it might not be as easy to keep any act of discrimination a secret. Those wishing to expose discrimination come with both dedication and determination and the tools and methods to do so. Their goal is to make public all violations of the basic civil right of having the opportunity to fair and equal housing.

Nadeen Green is Senior Counsel with For Rent Magazine[R], Norfolk, Va. She can be reached at 770/434-6347 or e-mail [e-mail].