Precaución - The Equal Rights Center

Precaución:
Obstacles for Latinos in the Virginia Rental Housing Market
The Equal Rights Center
2013
Drinker Biddle & Reath LLP
3
Precaución:
Obstacles in the Virginia Rental Housing Market
for Latinos
The Equal Rights Center
11 Dupont Circle NW, Suite 450
Washington, D.C. 20036
www.equalrightscenter.org
April 2013
4
©2013 Equal Rights Center—All Rights Reserved
Contents
Executive Summary
2
About the Authors
4
Latino Population Growth
5
Fair Housing Protections for Immigrants
7
Anti-Immigrant Legislation
8
The ERC’s Testing Investigation
14
Regional Data
18
Conclusions and Recommendations
22
1
Executive Summary
In the past few years, the immigration debate in the United States has received unprecedented attention. At the
same time, immigrants themselves have been subject to increased scrutiny, with many local and state governments passing laws intended to make life more difficult for undocumented immigrants and to encourage them to
move elsewhere. These laws, however, affect more than just undocumented immigrants. They often affect entire
immigrant communities, feeding suspicions and even hostility that some members of society may have toward
anyone who “appears undocumented.” Anti-immigrant laws also affect society at large by consuming scarce public
resources and depriving communities of the contributions of immigrants.
Concerned that this growing hostility toward immigrant communities, particularly Latino communities, has led
to discrimination in the rental housing market, the Equal Rights Center (ERC) initiated an investigation that
included fair housing testing across the Commonwealth of Virginia to examine whether Latinos and their white
counterparts are treated differently when seeking the same rental housing.
2
The ERC’s testing revealed that Latino applicants received more adverse treatment than their white counterparts in at least one respect 55 percent of the time (58 out of 106 tests conducted), with 18 percent (19 of 106
tests conducted) receiving more adverse treatment in multiple respects. This adverse treatment included:
• Being quoted higher rents or higher fees than white testers for the same rental unit;
• Not being offered incentives and specials that were offered to white testers seeking the
same housing;
• Being offered later availability dates, or being offered fewer available units than those
offered to white testers; and
• Being told about additional application requirements, such as credit checks and/or providing a social security card, which were not told to white testers.
Based on these findings, the ERC and Drinker Biddle & Reath LLP make the following recommendations:
1. State and local legislators must ensure that all immigration-related bills encourage
fair housing and comply with federal civil rights laws that prohibit discrimination
based on national origin.
2. Housing providers must ensure that their staffs receive fair housing training.
3. Housing providers should develop written materials that detail rental fees, costs, and
application requirements in order to ensure uniformity in the information provided
to applicants.
4. Tenants and prospective tenants should be aware of their fair housing rights and be
prepared to enforce these rights when they are violated.
3
About the Authors
The Equal Rights Center
Originally formed in 1983, the Equal Rights Center is a national non-profit civil rights organization dedicated to
promoting equal opportunity in housing, employment, public accommodations, and government services. Based
in Washington, D.C., with nearly 6,000 members located in all 50 states, Puerto Rico, and the District of Columbia,
the ERC works to identify, address, and remedy both individual instances of discrimination, as well as large-scale,
systematic discrimination nationwide. The ERC’s 30 years of service as a fair housing advocate has opened housing opportunities for tens of thousands of individuals.
At the core of the ERC’s success in promoting civil rights is its three decades of experience in civil rights testing.
Through a variety of innovative testing techniques, the ERC is a national leader in identifying and documenting
differences in the quality, quantity, and content of information and services provided to individuals based on individual factors and characteristics. Through this testing process, the nature and extent of illegal discrimination can
be ascertained. The ERC conducts hundreds of civil rights tests each year to educate the public and government
officials about the discrimination still faced by many individuals across America.
Drinker Biddle & Reath LLP
Drinker Biddle & Reath LLP is a national law firm with 650 lawyers in 11 offices. The firm combines a comprehensive range of traditional legal practices with significant national roles in such practices as class action defense,
corporate and securities, government relations, health care, intellectual property, insurance, investment management, private equity, bankruptcy, energy, environmental, education, and communications. Drinker Biddle also
has a long tradition of handling pro bono work and taking on unpopular causes.
In 2009, Drinker Biddle launched the Barbara McDowell High Impact Pro Bono Initiative, a program that aims
to significantly and positively impact social justice concerns faced by indigent, charitable or civic groups unable
to afford legal services. The McDowell Initiative was inspired by the late Barbara McDowell, a national leader in
public interest advocacy who died of brain cancer in January 2009, and served as the founding director of the Appellate Advocacy Project of the Legal Aid Society of the District of Columbia. Barbara was the wife of Drinker
Biddle partner Jerry Hartman.
4
Latino Population Growth
In a nation founded on and strengthened by immigration, Latinos have become the largest minority group in the
United States, numbering 50 million and comprising 16 percent of the total United States population.1 The recent
growth of the nation’s Latino population has been rapid, expanding by 43 percent between 2000 and 2010.2
In the Commonwealth of Virginia, approximately 632,000 Latinos comprise 8 percent of the state’s total population.3 The size of this group has grown at a rate much faster than the national rate (44 percent), nearly doubling
between 2000 and 2010.4 In some areas, Virginia’s Latino communities have grown by as much as 400 percent.
1
Pew Hispanic Center, “Hispanics Say They Have the Worst of a Bad Economy” (Jan. 26, 2012), http://www.pewhispanic.
org/2012/01/26/hispanics-say-they-have-the-worst-of-a-bad-economy/.
2
Sudeep Reddy, “Latinos Fuel Growth in Decade,” New York Times, Mar. 25, 2011, A2.
3
U.S. Census Bureau, State and County Quick Facts, Virginia, http://quickfacts.census.gov/qfd/states/51000.html.
4
Carol Morello and Dan Keating, “Minority Ranks Boom in Virginia,” Washington Post, Feb. 4, 2011, A01.
5
Latino Population Growth in Virginia
55
County/City 2000 5
2010 6
Increase
% Increase
6
Augusta
620
1,525
905
146%
Culpeper
858
4,157
3,299
384%
Fairfax City
2,932
3,556
624
21%
Frederick
1,004
5,168
4,164
415%
Henrico
5,946
15,001
9,055
152%
Loudoun
10,089
38,576
28,487
282%
Manassas
5,316
11,876
6,560
123%
Prince William
27,338
81,460
54,122
198%
Richmond
185
510
325
176%
Roanoke
888
1,951
1,063
120%
Rockingham
2,221
4,076
1,855
84%
Virginia Beach
17,770
28,987
11,217
63%
6
Latino population percentage increases
from 2000 to 2010
represents a 100% increase
5
U.S. Census Bureau, Race and Hispanic or Latino: 2000 – State – County / County Equivalent, 2000 Census Redistricting Data (Public Law 94-171) Summary File.
6
U.S. Census Bureau, Race and Hispanic or Latino: 2010 – State – County / County Equivalent, 2010 Census Redistricting Data (Public Law 94-171) Summary File.
6
Fair Housing Protections for Immigrants
Recognizing the integral role that immigration has played in the nation’s history, civil rights laws have consistently
protected against discrimination based on national origin. The federal Fair Housing Act (FHA) is no exception.
The FHA prohibits discrimination in the sale, rental, and financing of dwellings, and in other housing-related
transactions based on race, color, national origin, religion, sex, familial status, and disability.7
National origin discrimination consists of different, disparate, or adverse treatment of an individual because of
his or her actual or perceived birthplace, ancestry, culture, or linguistic characteristics identified as common to a
particular group. Denying housing, offering different terms or conditions in order to rent an apartment, or providing information that would amount to decreased availability because of an applicant’s national origin (or any
other federal, state, or locally protected category) violates fair housing laws, regardless of the person’s immigration
status. In some instances, individuals are subject to discrimination based on a combination of categories protected
by the civil rights laws, such as national origin, race, and color.8
State and local fair housing laws, at a minimum, tend to include protections for the classes of people protected
under federal law. The Virginia Fair Housing Law includes all seven federally protected classes, as well as “elderliness,” a prohibition on housing discrimination against individuals 55 years of age and older.9 Therefore, Latinos
in Virginia who experience housing discrimination due to their national origin are protected under both federal
and state law.
Despite the legal protections of the FHA, and similar state and local laws, housing discrimination persists on both
individual and systemic levels. In any given year, an estimated 4 million fair housing violations occur.10 Incidents
of housing discrimination, however, are woefully underreported. In 2011, for example, only slightly more than
27,000 housing discrimination complaints were filed with government agencies, many of which alleged multiple
fair housing violations.11 Of these complaints, more than two thousand alleged discrimination based on national
origin.12 The frequency of incidents of national origin discrimination may be affected by a variety of factors, including a hostile environment made worse by the enactment of state and local laws purporting to combat illegal
immigration.
7
42 U.S.C. §§ 3601, et seq.
8
See Kristina M. Campbell, “Local Immigration Relief Act Ordinances: A Legal, Policy, and Litigation Analysis,” 84 Denv.
U. L. Rev. 1041, 1051-52 (2007).
9
Va. Code Ann. §§ 36-96.1, et seq.
10
National Fair Housing Alliance, “Fair Housing in a Changing Nation: 2012 Fair Housing Trends Report,” 5 (Apr. 30, 2012), available at http://www.nationalfairhousing.org/LinkClick.aspx?fileticket=GBv0ZVJp6Gg
percent3d&tabid=3917&mid=5321.
11
Ibid. at 6.
12
Ibid. at 6-8.
7
Anti-Immigrant Legislation
Counterbalancing the well-established prohibition on discrimination based on national origin is the rise of antiimmigrant legislation purportedly intended to target undocumented immigrants. In various states, counties, and
cities across the country, this legislation appears to have surfaced both as a result of, and as a cause of, increasing
hostility toward immigrants. This trend became more dramatic as the U.S. economy weakened, causing immigrants – and particularly undocumented immigrants – to serve as scapegoats during the recession.13
National Trends
As the nation’s Latino population has grown, and as the debate over immigration reform has become more intense,
hostility towards Latinos in general has also grown. Two troubling trends demonstrate this increased hostility.
Hate crimes targeting Latinos have increased dramatically over the past ten years.14 During the same period,
many state and local governments have enacted harsh legislation purporting to target undocumented immigrants
and encourage them to leave.15 The rise in state and local anti-immigrant laws has increased racial tensions,
13
See Immigration Policy Center, “Restrictionists Use Immigrants as Scapegoat for Economic Crisis” (Oct. 6, 2008), http://
immigrationimpact.com/2008/10/06/restrictionists-use-immigrants-as-scapegoat-for-economic-crisis.
14
Southern Poverty Law Center, “When Mr. Kobach Comes to Town: Nativist Laws & the Communities They Damage,” 5
(January 2011), http://cdna.splcenter.org/sites/default/files/downloads/publication/ Kobach_Comes_to_Town.pdf; Leadership
Conference on Civil Rights Education Fund, “Confronting the New Faces of Hate: Hate Crimes in America,” 14 (2009), http://
www.protectcivilrights.org/pdf/reports/hatecrimes/ lccref_hate_crimes_report.pdf.
15
“When Mr. Kobach Comes to Town,” supra note 14, at 5.
8
led to threats and attacks against Latinos (whether documented or not), and has undermined Latinos’ trust of law
enforcement and government.16
Perhaps the most publicized anti-immigrant legislation is Arizona’s S.B.1070, which introduced the policy of “attrition through enforcement,”17 establishing conditions considered so harsh that immigrants would be forced to
“self-deport” or otherwise leave the state. S.B. 1070 made it a state crime for individuals to fail to comply with
federal immigrant registration requirements and for undocumented immigrants to seek or engage in work in the
state.18 It also authorized local law enforcement officers to arrest, without a warrant, any person they had probable cause to believe had committed a crime that would make the person deportable.19 In certain circumstances,
the law required officers who stopped, detained, or arrested an individual to verify the immigration status of the
suspect, often referred to as the “show me your papers” law.20 In June 2012, the Supreme Court struck down all but
the last of these provisions as preempted by federal law.21 The “show me your papers” provision has only recently
gone into effect, but many believe that it will exacerbate racial profiling and unwarranted harassment of Latinos
by law enforcement.22
Since the passage of S.B. 1070, several states have enacted even harsher anti-immigrant provisions intended to discourage entry or residence of undocumented immigrants. The first to do so was Georgia, which enacted H.B. 87
in 2011. In addition to adopting similar measures passed by Arizona, H.B. 87 imposed new hiring requirements
for employers, increased penalties for workers convicted of using false identification to obtain work and criminal
penalties for people who transport or harbor immigrants without legal status.23 In 2011, South Carolina also attempted to go one step further through the creation of a new state immigration enforcement unit.24
In 2011, Alabama passed the most extreme measures to date to facilitate “attrition through enforcement.” Among
its provisions, Alabama’s H.B. 56 prohibits an undocumented immigrant from receiving state or local public benefits, enrolling or attending a public college, seeking or performing work as an employee or independent
16
Ibid.
17
Support Our Law Enforcement and Safe Neighborhoods Act (“S.B. 1070”), 49th Leg. 2d Reg. Sess. (Ariz. 2010) (“The
legislature declares that the intent of this Act is to make attrition through enforcement the public policy of all state and local
government agencies in Arizona.”).
18
S.B. 1070 §§ 3, 5(C) (Ariz. 2010).
19
Ibid. § 6.
20
Ibid. § 2(B).
21
See Arizona v. United States, 132 S. Ct. 2492, 2501-10 (2012).
22
Julia Preston, “Immigration Ruling Leaves Issues Unresolved,” New York Times, June 27, 2012, A14.
23
Illegal Immigration Reform and Enforcement Act of 2011, H.B. 87 (Ga. 2011). See also A. Elena Lacayo, “The Wrong
Approach: State Anti-Immigration Legislation in 2011,” National Council of La Raza (NCLR), 15 (2012), http://www.nclr.org/
images/uploads/publications/The_Wrong_Approach_Anti-Immigration_Leg.pdf.
24
S. 20 § 23-6-60 (S. Car. 2011).
9
contractor.25 H.B. 56 also requires schools to check the immigration status of students, and requires businesses to
enroll in the federal E-Verify program to monitor the immigration status of all applicants and new hires. The law
also criminalizes business transactions with undocumented immigrants, and makes it a misdemeanor for undocumented immigrants to fail to carry immigration documents.26 Section 27 of H.B. 56 further prohibits Alabama
state courts from recognizing or enforcing contracts with “an alien unlawfully present in the United States.”27 This
provision is particularly troublesome because it isolates undocumented immigrants from the protection of the
state, making them even more vulnerable to exploitation, particularly when seeking housing and employment.
For example, under H.B. 56, if a landlord unilaterally withdraws its lease with an undocumented immigrant, or
fails to meet basic health, safety and accommodation standards, the undocumented immigrant would have no
legal recourse.28
Similar trends are appearing in other states. Indiana and Utah have passed what some have referred to as “Arizona-lite” laws, which include many of the same provisions as Arizona’s law, but with less severe criminal consequences.29 Missouri’s S.B. 590 incorporates some of Alabama’s provisions, including requiring police officers to
verify the immigration status of individuals they suspect to be “unauthorized,” making it a crime for immigrants
to fail to carry their immigration documents at all times, and mandating that schools verify the immigration status
of enrolling students and their parents.30
Even before the passage of Arizona’s law, local governments enacted measures targeting undocumented immigrants, particularly with respect to housing. One of the first of these measures passed in 2006 in Hazleton, Pennsylvania. Although it has not yet been enforced due to legal challenges, the measure would fine landlords who rent
to undocumented immigrants, and require prospective tenants to register with City Hall and purchase a rental
permit.31 Another measure, enacted in 2008 in Farmers Branch, Texas, and also subject to legal challenges, would
require the city’s building inspector to check the immigration status of any noncitizen seeking to rent an apartment, bar undocumented immigrants from rental housing, and revoke the rental licenses of landlords who knowingly allow undocumented immigrants to rent from them.32 A Fremont, Nebraska ordinance, passed in 2010 after
25
Beason-Hammon Alabama Taxpayer & Citizen Protection Act, Act 2011-535 (“H.B. 56”), available at http://alisondb.
legislature.state.al.us/acas/searchableinstruments/2011rs/bills/hb56.htm.
26
Ibid.
27
Ibid.
28
Michele Waslin, “Provisions in Alabama’s Immigration Law Go Further than you Think,” American Immigration Council (Nov. 8, 2011), http://immigrationimpact.com/2011/11/08/provisions-in-alabama percentE2 percent80 percent99s-immigration-law-go-further-than-you-think/.
29Lacayo, supra note 22, at 15.
30
Seth Hoy, “More States Introduce Costly Immigration Enforcement Bills in 2012,” American Immigration Council,
http://immigrationimpact.com/2012/02/03/more-states-introduce-costly-immigration-enforcement-bills-in-2012.
31
Mary Claire Dale, “Pa. City Tries Again to Enact Immigration Rules,” Associated Press State and Local Wire, Aug. 15,
2012.
32
“Court upholds ban on Texas Immigrant Housing Law,” Associated Press State and Local Wire, Mar. 22, 2012.
10
a citizen petition drive, would make it illegal for landlords to rent to undocumented immigrants and would require
people who want to rent apartments to obtain an occupancy license by registering with the police department, at
which time their immigration status would be checked.33
At the time of this writing, a bi-partisan consensus has begun to emerge at the federal level about making comprehensive immigration reform a higher priority. While it remains to be seen what, if any, reform will occur, even
substantial reform is unlikely to significantly lessen anti-immigrant hostility at the state and local levels in the
short term.
Virginia Legislation
Parts of the Commonwealth of Virginia have demonstrated similar hostile attitudes towards undocumented immigrants and have pursued similar legislative efforts. In a July 2012 poll, 64 percent of Virginians surveyed supported Arizona’s “show me your papers” law.34 In fact, two years before Arizona’s law passed, in 2008, Virginia enacted a law requiring law enforcement to check the immigration status of anyone taken into custody to determine
whether they are legally in the United States.35 More recently, in the year 2011 alone, the Virginia legislature considered twelve anti-immigrant bills, and passed
two of them.36 The enacted legislation: (1) requires the Department of Motor Vehicles to cancel any license, permit
or identification card it has issued if the federal government informs it that the recipient is not legally in the country; and (2) requires employers with more than 50 employees that contract with state agencies to use E-Verify.37
Some local governments within Virginia have also passed anti-immigrant measures, apparently in response to a
growing anti-immigrant sentiment within their respective communities. The first to do so was the City of Manassas, which implemented a Residential Overcrowding Code Enforcement Program in 2004. City legislation narrowed the definition of “family” in order to limit the number of people who could live in a home—having a direct
and adverse impact on Latino families which, in many instances, include more extended family members in their
family unit. This program encouraged the City’s residents to police their neighbors through the filing of
33
Leslie Reed, “Fate of Freemont Immigration Ordinance Remains Unclear,” Omaha.com, June 26, 2012, http://www.
omaha.com/article/20120625/NEWS/706269991.
34
Bob Lewis, “Va. Wants Tough Immigration Curb,” Associated Press State & Local Wire, July 23, 2012.
35
Va. Code Ann. § 19.2-83.2.
36
American Civil Liberties Union of Virginia, “Anti-Immigrant Bills Fall in Virginia Senate,” https://acluva.org/7077/antiimmigrant-bills-fall-in-virginia-senate/.
37
National Conference of State Legislatures, “2011 Immigration-Related Laws, Bills and Resolutions in the States: Jan.
1–March 31, 2011,” http://www.ncsl.org/issues-research/immig/immigration-laws-and-bills-spring-2011.aspx. Run by the U.S.
Department of Homeland Security, Citizenship and Immigration Services, E-Verify is an on-line database that allows businesses
to determine whether their employees are eligible to lawfully work in the United States.
11
anonymous “overcrowding” complaints for investigation by the City’s property maintenance inspectors.38 City
officials also obtained confidential student information from the school district in order to identify instances in
which multiple children with different (usually Latino-sounding) last names appeared to be sharing the same
home. This information was then used by City inspectors and the Zoning Office as a basis for conducting inspections of those homes. Virtually all households inspected under this program were Latino.39 In response to litigation brought by the ERC and seven Latino families in Manassas, both the City and the school district entered into
settlement agreements that ended these practices and imposed corrective measures that were monitored by the
ERC until the settlement expired in early 2012.40
In Prince William County, where the Latino population nearly doubled between 2000 and 2005, a resolution was
adopted in 2007 that required police officers to ask about the immigration status of any arrestee that they had probable cause to believe was not in the country legally.41 Faced with concerns about the potential for racial profiling,
the county modified the policy to require that police check the immigration status of all arrestees.42 The resolution
also denied undocumented immigrants access to certain public services, including business licenses and mortgage
and rental assistance.43 In addition to creating a general sense of mistrust and unwelcomeness among immigrants,
these policies caused even documented immigrants, including Latinos, to leave or avoid the county entirely.44 This
negative view of Prince William County, at least among Latinos, has continued for years afterward.45 As discussed
below, such negative views can have a significant impact on the economic welfare of the community as a whole.
After Prince William County enacted its 2007 resolution, other Virginia counties announced their plans to “crack
down” on undocumented immigrants through measures that heightened tension with the entire Latino community. To this end, several Virginia cities and counties elected to participate in the “287(g) program” overseen by
the U.S. Immigration and Customs Enforcement (ICE), which gave state and local police officers the authority to
enforce federal immigration laws.46 For example, in June 2008, Loudoun County officials announced that police
38
See Complaint, Equal Rights Center v. City of Manassas, Civ. No. 1:07-cv-1037, filed Dec. 10, 2007.
39
Ibid. One month after the program was implemented, 99 percent of the homes inspected by the City of Manassas belonged to Latino families.
40
See Press Release, Equal Rights Center, Manassas City Council Approves
Settlement of Civil Rights Lawsuit (Sept. 23, 2008), http://www.equalrightscenter.org/site/DocServer/09.23.08_Manassas_City_
Council_Approves_Settlement_of_Ci.pdf?docID=1263&AddInterest=1162.
41
Natasha Altamirano, “Prince William to Check Immigration Status,” Washington Times, July 11, 2007, A01.
42
Associated Press, “The Damage Has Been Done, Va. Crackdown Causing Hispanic People to Leave, Many Say,” Charleston Gazette, May 27, 2008, 2D.
43
Ibid.
44
University of Virginia Center for Survey Research, “Evaluation Study of Prince William County’s Illegal Immigration
Enforcement Policy FINAL REPORT 2010: Executive Summary,” 8-9 (Nov. 2010), http://www.coo percenter.org/sites/default/
files/csr/Exec percent20Summary percent20with percent20title-PWC percent20Immigration percent20Eval percent2011.18.10s.
pdf.
45
Ibid.
46
ICE, Fact Sheet: Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act, http://www.ice.
gov/news/library/factsheets/287g.htm. In 2012, ICE decided not to renew this program. See ICE, News Release, http://www.ice.
12
would check the immigration status of all arrestees they suspected were in the country illegally.47 In December
2008, Manassas police began checking the immigration status of anyone arrested in the city.48 Contributing to the
effect of these local measures in Virginia and nationwide is ICE’s ‘Secure Communities Program,” which automatically checks fingerprint data from state and local jails against federal immigration databases.49
Critics of these
programs say that they result in racial profiling, damage relationships between the police and immigrant communities, and undermine immigrants’ trust of law enforcement.50 Recognizing these potential consequences, at least
one Virginia county, Arlington, attempted to opt out of the Secure Communities Program but was informed that
it could not do so.51
The Cost of Anti-Immigrant Legislation
In addition to the infringement of civil rights that often results from anti-immigrant legislation, these legislative
measures also impose significant financial costs on the entire community, not just on undocumented immigrants.
Discriminatory housing policies and practices have further restricted options for many Latino families, who are
more likely than white families to live in marginalized and resource-poor neighborhoods.52 Further, when immigrants choose to leave a community because legislation aimed at undocumented immigrants has made their
own lives more difficult, they take their money and buying power with them. This hurts small businesses, families
and local tax revenues, hindering the state’s economic growth during a critical time. In Arizona alone, S.B. 1070 is
projected to cost in $490 million in lost revenue from tourism, $86 million in wages, and 2,800 jobs.53
While no one has estimated the economic cost of Virginia’s anti-immigrant measures, anecdotal information suggests that those measures will be just as damaging to the local economy. Prince William County Supervisor Frank
Principi has noted that anti-immigrant measures have cost his county millions of dollars, due to “lost property tax
revenues, … lost sales tax revenues, and some income tax revenue. When the buying power leaves the community,
small businesses close, foreclosures go up.”54 Principi further noted that the law “has damaged [the] community’s
brand and reputation. This plays out in businesses choosing not to locate offices in Prince William County.” 55
gov/news/releases/1212/ 121221washingtondc2.htm.
47
Bill Brubaker, “Loudoun to Check Residency in Arrests,” Washington Post, June 18, 2008, B01.
48
Jennifer Buske, “Manassas to Check Arrestees’ Immigration Status,” Washington Post, Nov. 2, 2008, PW03.
49
Gregg MacDonald, “Benefits of ICE Program Questioned,” Washington Post, Dec. 9, 2010, T19.
50
Ibid.; Tara Bahrampour, “Counties See Fewer Hispanic Residents,” Washington Post, Feb. 1, 2011, B06.
51
Ibid.
52
See John A. Powell, “Reflections on the Past, Looking to the Future: The Fair Housing Act at 40,” 18 J. Affordable Housing & Community Dev. L. 145, 148 (2009).
53Hoy, supra note 29.
54
Pat Young, “Impact of Anti-Immigrant Laws on One Virginia County” (Jan. 25, 2011), http://nysiaf.org/2011/01/25/
impact-of-anti-immigrant-laws-on-one-virginia-county/ (last visited Dec. 26, 2012)
55
Ibid.
13
The ERC’s Testing Investigation
Methodology
In order to examine whether housing providers and rental agents in Virginia treat Latino applicants more adversely than white applicants, the ERC conducted 106 matched-pair, in-person civil rights tests of rental properties in
regions throughout the Commonwealth, including: City of Fairfax, Henrico and Richmond Counties, Loudoun
County, Prince William County and Manassas, Roanoke County, Northwest Virginia (covering Augusta, Culpeper, Frederick, and Rockingham Counties), and Virginia Beach. To select areas within the Commonwealth for
testing, the ERC reviewed demographic data in order to identify areas with recent growth in Latino population
that were in close proximity to areas that were predominantly white. The ERC then identified rental properties in
the predominantly white areas that were likely to see Latino population growth over time. Finally, the ERC conducted research to ensure that selected rental properties had a minimum of twenty-five (25) rental units and had
units actually available for rent at the time of testing.
The testing, designed and conducted by the ERC, consisted of “matched-pairs” of Latino and white testers who
were given similar, but not identical, personal and financial profiles including occupation, income, and rental and
credit history. To the extent that the testers’ profiles varied (except with respect to national origin), the Latino
14
(protected) tester was given more attractive attributes than the white (control) tester, such as a slightly higher annual income.
Additionally, while both testers visited a test property on the same day, the Latino tester always
visited the property before the white tester, in order to increase the likelihood that the Latino tester was presented
with more rental options than the white tester. The purpose of these design elements was to reduce, to the extent
possible, the number of potential reasons, actual or perceived, other than national origin why Latino testers might
receive more adverse treatment than their white counterparts.
Immediately before each rental property was tested, an “advance caller” contacted the property to inquire about
unit availability and rental prices. Once availability was confirmed, an ERC test coordinator scheduled first a Latino tester, and then a white tester, to visit the property on the same day and within a short period of time. In most
instances, the testers met with the same rental agent at each property. Testers were directed to inquire about the
availability, pricing, and requirements to rent an apartment unit with either a flexible or set move-in date based on
the information obtained from the advance call. Testers also collected any printed materials provided to them and
submitted these items to the test coordinator for inclusion in test analysis.
All testers – both Latino and white – were lawfully present in the United States at the time of testing. They were
screened, trained and supervised by ERC program staff. ERC program staff also coordinated all tests, including
tester briefing and de-briefing.Testing data were compiled and analyzed by ERC staff in conjunction with attorneys
from Drinker Biddle. This involved reviewing the results of each matched-pair test to determine whether one
tester received different information, or was treated differently from the matched tester. Where appropriate, the
ERC and Drinker Biddle established benchmarks and cut-off points to create uniformity in results.
Testing Results
In 58 of the 106 tests (55 percent), the Latino tester received more adverse treatment than the white tester in at
least one respect: being informed of higher rent or fees, fewer incentives or specials, later apartment availability, or
fewer available apartments. In some instances, Latino testers were told that they would have to submit to a credit
check or other application requirements, while their white counterparts were not. In 19 tests (18 percent), the
Latino tester received more adverse treatment than the white tester in two or more respects, such as being told of
fewer available apartments and that the apartments would become available on a later date.
As noted above, the testing methodology used in this survey was designed to portray the Latino testers as more
favorable prospective tenants than their white counterparts in several respects. It was therefore no surprise that,
in multiple tests, the Latino tester received more favorable treatment than the matched white tester. Those results
are not addressed here.
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Differences in Rent or Fees
For the majority of prospective tenants, cost is the most decisive factor in determining whether to rent a unit. Generally, the higher the rent and fees, the less likely a person will be to sign a lease. Thus, rental agents may discourage
one of two similar situated potential tenants by quoting a higher rent amount, or describing additional fees.
In 6 tests (6 percent), rental agents quoted a higher rental amount or higher fees to Latino testers than they
quoted to white testers. This type of treatment occurred twice in Prince William County (9 percent of tests there),
once in the City of Fairfax (20 percent of tests there), and 3 times in Virginia Beach (14 percent of tests there).56
Incentives and Specials
Incentives or specials, such as offering a month of free rent, or waiving otherwise required fees, are often used by
housing providers to induce a prospective tenant to make an immediate decision to rent.
In 14 tests (13 percent), white applicants were informed of rental incentives and special offers, while Latino
applicants at the same properties were not. This type of different and adverse treatment was observed in 5 tests
in Prince William County and Manassas (23 percent of tests there), 2 tests in Roanoke County (12 percent of tests
there), 3 tests in Virginia Beach (14 percent of tests there), 2 tests in Richmond and Henrico Counties (9 percent
of tests there), 1 test in Northwest Virginia (9 percent of tests there), and 1 test in Loudoun County (17 percent of
tests there). When such different treatment occurs, a Latino applicant may be required to pay more to move into
an apartment than a white applicant seeking to move into the same apartment.
Dates Apartments Were Available
Ensuring that a unit will actually be available when a prospective tenant needs to move is likewise often a determining factor in finding housing. Rental agents may discourage prospective tenants by telling them that no units
will be available in the timeframe needed, thus encouraging them to look elsewhere. As explained above, the tests
were designed in such a way that the Latino tester, who visited the apartment building earlier in the day than the
white tester, should have been presented with more rental options than the white tester in the vast majority of tests.
Yet in 16 tests (15 percent), rental agents provided Latino testers with later availability dates for apartments
than were offered to white testers. This occurred in 5 tests in Prince William County and Manassas (23 percent
of tests there), 5 tests in Virginia Beach (23 percent of tests there), 2 tests in the City of Fairfax (40 percent of tests
56
Cost differences of below $10 were not included in order to account for the practice of daily fluctuating prices, and/or
the failure of agents to accurately recall each day’s new rental price.
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there), 2 tests in Roanoke County (12 percent of tests there), and 2 tests in Richmond and Henrico Counties (9
percent of tests there).
Number of Available Units
Equal housing opportunity requires housing providers to offer each prospective tenant the same number and
range of housing options. Sometimes, prospective tenants are only told about certain available units as a means
of “steering” them toward, or away from, certain sections of a building or property, keeping their options within a
smaller price range, or for other discriminatory reasons.
In 23 tests (22 percent), rental agents informed the Latino tester of fewer available units. This occurred in 3
tests in the City of Fairfax (60 percent of tests there), 7 tests in Prince William County (32 percent of tests there), 5
tests in Virginia Beach (23 percent of tests there), 4 tests in Roanoke County (24 percent of tests there), and 2 tests
in Richmond and Henrico Counties (9 percent of tests there). This same type of adverse treatment also occurred
once in Loudoun County (17 percent of tests there) and once in Northwest Virginia (9 percent of tests there).
Application Requirments
The imposition of additional application requirements, such as a credit check or payment by money order (rather
than personal check), can be a strong disincentive to renting, and act as a barrier to equal housing opportunity.
In 6 tests (6 percent), Latino testers were told that a credit check was required, while white testers were not.
This occurred in 3 tests in Prince William County (14 percent of tests there), 2 tests in Roanoke County (12 percent
of tests there), and 1 test in Virginia Beach (5 percent of tests there).
Other instances where additional requirements were imposed on Latino testers but not white testers occurred
in 19 tests (18 percent of all tests). In 11 tests (10 percent of all tests), the Latino tester was either informed of a
higher security deposit amount than the white tester or was informed that a security deposit was required while
the white tester was not. In 5 tests (5 percent of all tests), the Latino tester was required to provide proof of a social
security number, while the white tester was not. In other instances, the Latino testers, but not the white testers,
were told that they needed to obtain renter’s insurance (2 percent of all tests), needed to have their signature on
the application notarized (1 percent of all tests), needed to meet a minimum income requirement (1 percent of all
tests), could not have any prior civil suits against them (1 percent of all tests), or were required to undergo a criminal background check and employment verification and provide a rental history (1 percent of all tests).
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Regional Data
Richmond and Henrico: 23 tests conducted (22 percent of total 106)
Testing was conducted in:
• Glen Allen census-designated point (CDP) (3.9 percent Latino);
• Henrico County (5.1percent Latino);
• City of Richmond (6.3 percent Latino); and
• Chesterfield County (7.2 percent Latino)
Adverse Treatment Reported*
26 percent
74 percent
• Incentive/special: 2 tests (9 percent)
• Date unit available: 2 tests (9 percent)
• Number of available units: 2 tests (9 percent)
• Application requirement: 2 tests (9 percent)
no adverse treatment
adverse treatment
*some tests documented more than one form of adverse treatment
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Virginia Beach: 22 tests conducted (21 percent of total 106)
Testing was conducted in:
• Virginia Beach (6.6 percent Latino)
Adverse Treatment Reported*
45 percent
• Rent/Fees: 3 tests (14 percent)
55 percent
• Incentive/Special: 3 tests (14 percent)
• Number of available units: 5 tests (23 percent)
• Date unit available: 5 tests (23 percent)
• Security deposit: 1 test (5 percent)
• Credit check: 1 test (5 percent)
• Other application requirement: 1 test (5 percent)
no adverse treatment
adverse treatment
*some tests documented more than one form of adverse treatment
Northwest Virginia: 11 tests conducted (10 percent of total 106)
Testing was conducted in:
• City of Winchester (15.4 percent Latino);
• City of Harrisonburg (15.7 percent Latino);
• City of Staunton (2.2 percent Latino); and
• Culpeper County (8.9 percent Latino)
Adverse Treatment Reported*
27 percent
73 percent
• Incentive/special: 1 test (9 percent)
• Number of available units: 1 test (9 percent)
• Application requirement: 1 test (9 percent)
• Security Deposit: 1 test (9 percent)
no adverse treatment
adverse treatment
*some tests documented more than one form of adverse treatment
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Fairfax: 5 tests conducted (5 percent of total 106)
Testing was conducted in:
• Fairfax City (15.8 percent Latino).
Adverse Treatment Reported*
100 percent
• Rent/Fees: 1 test (20 percent)
• Date unit available: 2 tests (40 percent)
• Number of available units: 3 tests (60 percent)
• Application requirements: 2 tests (40 percent)
no adverse treatment
*some tests documented more than one form of adverse treatment
adverse treatment
Loudoun: 6 tests conducted (5 percent of total 106)
Testing was conducted in:
• Loudoun County (12.6 percent Latino)
Adverse Treatment Reported*
50 percent
50 percent
• Incentive/Special: 1 test (17 percent)
• Number of available units: 1 test (17 percent)
• Security deposit: 1 test (17 percent)
*some tests documented more than one form of adverse treatment
no adverse treatment
adverse treatment
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Prince William and Manassas: 22 tests conducted (21 percent of total
106)
Testing was conducted in:
• Manassas City (31.4 percent Latino);
• Woodbridge (31.9 percent Latino);
14 percent
• Lake Ridge CDP (15.4 percent Latino);
• Dumfries (14.1 percent Latino);
86 percent
• Lorton CDP (16.7 percent Latino); and
• Manassas Park (32.5 percent Latino)
Adverse Treatment Reported*
• Rent/Fees: 2 tests (9 percent)
• Incentive/Special: 5 tests (23 percent)
no adverse treatment
adverse treatment
• Date unit available: 5 tests (23 percent)
• Number of available units: 7 tests (32 percent)
• Security deposit: 6 tests (27 percent)
• Credit check: 3 tests (14 percent)
• Other application requirement 3 tests (14 percent)
*some tests documented more than one form of adverse treatment
Roanoke: 17 tests conducted (16 percent of total 106)
Testing was conducted in:
• City of Roanoke (5.5 percent Latino); and
• Blacksburg (3.5 percent Latino)
47 percent
Adverse Treatment Reported*
53 percent
• Incentive/special: 2 tests (12 percent)
• Date unit available: 2 tests (12 percent)
• Number of available units: 4 tests (24 percent)
• Credit check: 2 tests (12 percent)
• Security deposit: 2 tests (12 percent)
• Other application requirement: 1 test (6 percent)
no adverse treatment
adverse treatment
*some tests documented more than one form of adverse treatment
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Conclusion and Recommendations
In light of the above findings, the ERC and Drinker Biddle make the following recommendations:
State and local legislators must ensure that immigration-related bills encourage fair housing and comply with
federal civil rights laws. Anti-immigrant laws and ordinances can establish a tone of intolerance that encourages
housing discrimination. In some instances, implementation of the provisions themselves may violate fair housing
laws, while in other instances, anti-immigrant laws may have an indirect discriminatory impact. All immigrationrelated bills, resolutions and proposals should encourage fair housing and comply with federal civil rights laws that
prohibit discrimination based on national origin.
Housing providers must ensure that their staff receive fair housing training. Landlords, rental agents, housing
managers, and others who provide rental housing must be aware of the fair housing rights of prospective tenants
and related responsibilities of housing providers and their agents. Good training will not just explain the relevant
legal requirements, but will also emphasize why these laws are necessary to ensure equal access to housing for immigrants.
Housing providers should develop written materials that detail rental fees, costs, and application requirements. When landlords or rental agents provide differing information to prospective tenants, including quoting
different rents, or omitting fees, costs or other requirements, housing providers potentially expose themselves to
liability. Providing basic information in written materials to all prospective tenants ensures that this critical information is provided equally.
Tenants and prospective tenants should be aware of their fair housing rights and be prepared to enforce these
rights when they are violated. An informed public is best able to promote fair housing and ensure compliance
with civil rights laws. Immigrants and nonimmigrants alike have a responsibility to encourage equal housing opportunity and should be aware of how to protect their rights and the rights of others.
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