Can Virginia do more to stop housing discrimination?

This article was first published in the Virginia Mercury.

Amidst the frantic flurry of legislation that Democrats proposed upon taking control of all branches of Virginia’s state government in 2020, a surprising share of bills were dedicated to ending housing discrimination.

LGBTQ+ individuals, veterans, and those paying their rent partly with housing choice vouchers or another form of government assistance were all enshrined in July of that year as “protected classes” — demographic groups which the Virginia Fair Housing Law explicitly bars landlords from discriminating against. Nearly a year and a half later, the fair housing caseload has grown, but has Virginia done enough to end discrimination?

The purpose of protections

All Americans are entitled to a basic level of protection from housing discrimination under the federal Fair Housing Act which lays out seven protected classes nationwide: race, color, religion, national origin, disability, familial status and sex (which recent Democratic administrations have asserted inherently includes sexual orientation and gender identity). Citing the many gaps in that list, some states have enshrined additional protected classes. For example, Virginia has long extended protection from discrimination to seniors 55 and over based on their age.

In 2020, the General Assembly added four additional protected classes to the commonwealth’s fair housing laws: sexual orientation, gender identity, source of funds and veteran status (upgraded to the broader “military status” in 2021). State officials often cite a bill which blocks localities from denying permits to affordable housing as Virginia’s 13th protected class. The legislature has also passed policies preventing housing discrimination against victims of domestic violence but not via establishing it as a protected class.

“Housing discrimination is one of those issues where, when it happens, there’s not a SWAT team or anything that swoops in,” said Kate Scott, executive director of the Equal Rights Center — an anti-discrimination civil rights organization. “Governments invest limited resources into enforcement of housing discrimination, so these new protections provide more opportunity for us to be aggressive in stamping out housing discrimination. There are some ways to argue these discrimination cases under federal law, but it’s always easier when states have specific protections in place.”

Across the Potomac in DC where the Equal Rights Center is based, residents enjoy 19 protected classes. Thanks to the new protections Democrats passed over the last two years, Virginia now ranks among the top six states with the most expansive fair housing laws. Only Rhode Island, Connecticut, Illinois, New York and Massachusetts go further.

Tell the tenants

Even before the passage of these new protected classes, state officials would try to protect broader groups from discrimination by proving a “disparate impact.” For example, turning away housing choice voucher holders disproportionately impacts people of color. “We used to get claims, and we would investigate them based on other classes like sex or race, but disparate impact cases are difficult to investigate and prove because you’re looking for data that’s sometimes hard to get,” said Liz Hayes — an administrator at the state’s Fair Housing Office.

Since the expanded protected classes have become official, her office’s work has quadrupled. Over the last 18 months the Fair Housing Office has received 55 complaints alleging housing discrimination based on the new protected classes (sexual orientation, gender identity, military status, and source of funds). That figure doesn’t include those based on race, color, religion, race, gender, national origin, elderliness, or disability, with the Fair Housing Office fielding “many more” complaints based on those categories, said Helen O. Hardiman, an assistant attorney general and policy adviser in the Attorney General’s Office, which can and does file lawsuits based on its own investigations into “systemic” instances of housing discrimination. Many of the complaints and subsequent cases against landlords focus on source of income discrimination in which landlords turn tenants away for paying part of their rent using vouchers or other government assistance.

Fair housing advocates like Christie Marra of the Virginia Poverty Law Center believe these figures are just the tip of the iceberg. “The vast majority of tenants just don’t know about these protections,” she said. “There are certain things that are just so ingrained in our renter culture that tenants don’t question the legitimacy of actions that are illegal.” Credit and criminal background checks, for example, aren’t illegal, but can be if they are implemented in a way that has a “disparate impact on a group of people protected by the Fair Housing Act,” Marra said.

To help get the word out about the new protections for source of funds for tenants, this year the Virginia Real Estate Board issued a guidance document on the matter.

To Shivaughn Ferguson, the director of fair housing for Housing Opportunities Made Equal — a housing advocacy nonprofit, the impact of the new laws and the state’s effort to get the word out has been a game changer: “As a member of the LGBTQ community myself, I understand the challenges. There has been so much mixed communication about whether we have rights at the state level, the federal level or at all. However, between April and September [of 2021] we received 200 allegations of fair housing discrimination. The pandemic has definitely increased blatant discrimination, but people now know there are these additional protections out there.”

Expanding enforcement?

Although formal complaints of housing discrimination have increased over the last year and a half, currently no additional staff or resources are planned for either the commonwealth’s Fair Housing Office, which is housed in the Department of Professional and Occupational Regulation, or the Attorney Generals’ Office of Civil Rights. A number of nonprofits are trying to help complement state capacity, however.

“Landlords sometimes consider discrimination a budget line item of $1,000-2,000 that they can easily digest,” Ferguson said. “I’m here to say that is no longer a thing. If you engage in discrimination, then you are going to face consequences that will not only just make you think twice but will fundamentally change your business model.”

In November, Attorney General Mark Herring filed Virginia’s first-ever “pattern and practice” discrimination lawsuits using evidence collected by the Housing Rights Initiative. Thirteen of the 14 cases the attorney general filed are against 29 individual defendants in the City of Richmond and Henrico and Chesterfield counties. The landlords and property managers implicated in the suits own and operate thousands of units across Virginia.

I’m proud to announce that our partnership with the Attorney General of Virginia, Mark Herring, has led to 13 lawsuits against 29 real estate companies for discriminating against families with housing vouchers.

Here’s the story:

(Thread)https://t.co/OdPbTclPaD

— Aaron Carr (@aaronAcarr) October 18, 2021

“For the discrimination cases that we submitted to Attorney General Mark Herring, we indiscriminately investigated every broker and landlord in Richmond that was listing apartments that a Section 8 voucher holder could conceivably rent,” explained Aaron Carr, the founder and executive director of the Housing Rights Initiative — a New York-based non-profit that investigates real estate fraud. “What makes our model unique is that we aren’t just looking into a few real estate companies, but entire real estate sectors. Our goal is to open up as many apartments as possible for families with rental assistance in order to create affordability and neighborhood choice.”

Such early legal victories have laid bare the need for the expanded anti-discrimination protections, but that doesn’t mean that housing advocates aren’t worried that the next attorney general — Republican Jason Miyares — won’t scale back the existing (arguably underfunded) state enforcement of protected classes.

“People sense that there may be a change coming,” Scott said, “But these protections shouldn’t be politicized because housing is such an integral part of community and family well-being. These are basic, commonsense protections that help people to find housing that meets their needs without facing discrimination. Enforcing these policies requires a broad swathe of people to help, so I’m hopeful that the coalition exists to make sure these protections stay in place.”