Fair Housing testing was first approved by the U.S. Supreme Court in 1982 as a means to uncover evidence of discrimination. Since the passage of the Fair Housing Amendments Act in 1988, testing programs have expanded to include tests for both national origin and disability discrimination.

Telephone Testing

Telephone testing is one of the most common methods of testing. This usually takes the form of one tester calling and inquiring about a specific apartment, and then another tester, possibly with an accent, also calls, inquiring about the same apartment. If your staff replies differently to the two phone calls, this could result in a fair housing complaint.

Staff needs to be trained with specific responses as well as how to document these conversations. This will help avoid possible discrimination allegations, and if one is lodged the documentation will provide a basis to prove otherwise.

Comparable/ Non-Comparable Fair Housing Testers

Fair Housing testers are usually individuals from the local community who have been specifically trained to conduct fair housing tests. They are trained to use standardized forms that report what transpired during the test, such as the nature of the assistance given, the number, type, and location of units shown, the terms and conditions offered. Fair Housing testers may also use secret video and audio recording devices in jurisdictions that allow their use.

Comparable and non-comparable testers will play their distinct parts to uncover any possible discrimination. In most cases, this means that Fair Housing testers may have to lie on the rental application and in any face-to-face meetings with agents about these characteristics. While lying on an application may seem wrong, remember that the U.S. Supreme Court justified lying in this context as a powerful means to uncover housing discrimination.

Fair Housing Testing Reports

Once a test has been completed, and a report created, the next step is how the reports will be used. For complainants, this means determining how much information is required by HUD for them to proceed to investigate a claim. Respondents, however, are more focused on how and when they can get copies of the testing reports and any other information related to the tests and the testers themselves. 

In April 2003, HUD attempted to answer these and other questions by issuing guidance to all of its offices “to ensure that FHEO (Fair Housing and Equal Opportunity) investigators nationwide will adopt a uniform approach to investigations where testing has been conducted with respect to the housing practices of a respondent.”

Fair Housing and Testers

Although HUD has attempted to provide nationwide uniformity in the treatment of testing evidence, how individual FHEO offices, to say nothing of individual investigators or state and local enforcement agencies, will implement this guidance remains to be seen.

Like it or not, testing by “pretend” apartment-seekers in order to produce evidence of discrimination will continue to be an important tool for government agencies such as the U.S. Department of Justice’s Civil Rights Division, HUD’s Office of Fair Housing and Equal Opportunity.

Best practices and proper fair housing training is in every company's best interests to avoid discrimination charges that result in lengthy and costly investigations.