ERC Testifies at 2023 DC Office of Human Rights Performance Oversight Hearing
By Susie McClannahan
February 9, 2023
The DC Office of Human Rights enforces local human rights laws, including the DC Human Rights Act, by providing a legal process to those who believe they have been discriminated against. The ERC has filed dozens complaints of discrimination with the agency, and appreciates the opportunity to testify to DC Council regarding the agency’s performance. The hearing was held virtually before the Committee on Public Works and Operations on February 9, 2023, at 9:30 am. Senior Fair Housing Rights Program Manager Susie McClannahan testified on behalf of the ERC. The full recording of the hearing is available on YouTube.
Full transcript of the ERC’s testimony:
Equal Rights Center’s Testimony Regarding the Performance of the DC Office of Human Rights
Testimony Delivered Via Email to Sabrin Qadi at sqadi@dccouncil.gov and Abridged Version Read at the Public Hearing
The Equal Rights Center (ERC) appreciates the opportunity to testify for the DC Council performance oversight hearing of the Office of Human Rights (OHR).
The ERC is a civil rights organization that identifies and seeks to eliminate unlawful and unfair discrimination in housing, employment, and public accommodations in its home community of Greater Washington, D.C. and nationwide. For many years, the ERC has conducted intakes with individuals alleging housing discrimination in DC, investigated individual claims and systemic forms of housing discrimination, pursued enforcement of the Fair Housing Act (FHA), the DC Human Rights Act (HRA), and other local anti-discrimination laws as needed, and conducted education and outreach about fair housing protections and requirements. The ERC, as a complainant or non-attorney representative for individual complainants, has filed about 30 housing discrimination complaints with OHR in the last three years.
OHR’s administrative complaint process provides DC residents with an opportunity to report and challenge housing discrimination. In theory the administrative complaint process is relatively straightforward—after a complaint is filed, OHR conducts an intake and attempts to mediate the complaint. If mediation fails, the complaint moves into investigation. At the conclusion of an investigation, OHR issues a finding stating whether there is probable cause that discrimination occurred. If OHR finds probable cause, either one further attempt at conciliation is made before the case is forwarded to the Human Rights Commission or the parties elect to move the case to DC Superior Court. While the complaint process is relatively straight forward, it unfortunately can be quite challenging and time-consuming for individuals to navigate it.
More Individuals Are Filing Fair Housing Complaints, and the Backlog of Cases is Growing
The ERC commends OHR on the increase in fair housing complaints docketed at the agency last year. In FY2021, the agency docketed only forty fair housing complaints – a number that is clearly not reflective of the frequency of housing discrimination in the city.[1] In FY2022, OHR docketed 72 fair housing complaints, almost double the year before.[2] Complaints will also likely increase due to OHR’s new areas of enforcement from legislation passed last year, which included the strengthening of source of income protections for voucher holders and the addition of two new protected classes in housing (homeless status and a sealed eviction record).
Yet as the number of complaints grow, there are significant concerns about OHR’s ability to keep pace. Five ERC clients currently have open complaints that are more than a year old, with the oldest one dating back to 2020. With the departure of one of the agency’s two housing investigators last year, delays in the administrative complaint process have worsened, with some fair housing complaints appearing to come practically to a standstill.
These concerns about OHR’s administrative complaint process are unfortunately not new. Many complainants over the years have shared that the complaint process is time-consuming, resource intensive, and confusing—to the extent that it deters them from filing or following through on complaints. Even in our role as an organization highly trained in filing OHR complaints and assisting residents through the process, we experience repeated difficulties and delays. As a result, ERC staff frequently grapple with how best to counsel clients who have experienced real harm due to illegal discrimination, as we are often skeptical of the likelihood that they will be able to obtain timely and meaningful relief through the process that OHR is responsible for administering.
OHR has stated it plans to use Fact Finding Conferences during investigations in order to decrease the growing backlog of complaints.[3] While the ERC appreciates OHR’s intent to address the complaint backlog, we are gravely concerned that Fact Finding Conferences could make the complaint process more emotionally draining and difficult to navigate for complainants. The ERC helps individuals file housing discrimination complaints at five local, state, and federal government agencies in its service area. Of those, only one agency has previously used Fact Finding Conferences. In a Fact Finding Conference, the investigator holds a meeting with both the person who filed the complaint and the housing provider against whom a complaint was filed. The investigator asks questions of and takes statements from both parties while they are together. Our experience has been that victims of discrimination frequently find it difficult to clearly articulate their experiences in such a high-stress environment, especially when there can be such a significant power imbalance between them and the housing provider. One ERC client that participated in a Fact Finding Conference called the experience more traumatic than her experience of housing discrimination. Rather than instituting Fact Finding Conferences, we respectfully suggest instead that OHR hire and train more staff to process complaints.
Disparate Impact is a Critical Tool to Address Discrimination, Yet DCOHR Refuses to Use It
The challenges with the complaint process highlight the heavy enforcement burden put onto individual victims of housing discrimination. With fair housing complaints frequently taking one to three years to reach a resolution, individual complainants are required to relive the discrimination they experienced over and over as their complaints slowly progress through each stage. As such, it is critical that the District’s civil rights enforcement agencies, including OHR, do everything in their power to fight discrimination at a systemic level.
The Fair Housing Act and the DC Human Rights Act allow for fair housing claims based on a disparate impact theory. Policies and practices by housing providers that appear neutral could be considered discriminatory under a disparate impact analysis if they have a disproportionate impact on a group of people protected by federal and local fair housing laws. Disparate impact provides a powerful tool to address systemic forms of discrimination because it makes it possible to identify and challenge more pernicious, difficult to see cases of discrimination. For example, because over 90% of the city’s voucher holders are Black, discrimination towards voucher holders in DC is also race-based discrimination.[4] Additionally, overly broad criminal record screenings of rental applicants may be discriminatory on the basis of race and/or national origin as the screenings are disproportionately likely to serve as a barrier to renters of color.
Given historic and ongoing discrimination that has yielded racial segregation on par with “apartheid era South Africa”, the District should use all the tools at its disposal to promote integration and equity in housing.[5] Yet Interim Director Hnin Khaing stated during OHR’s 2022 performance oversight hearing testimony that the agency does not accept disparate impact claims because they are resource intensive and the agency lacks the staff capacity necessary to investigate such claims.[6] In order to effectively address the systemic discrimination that plagues the District, OHR must take the necessary steps so that the agency can accept fair housing complaints based on a disparate impact analysis.
OHR Should Launch Director’s Inquiries to Confront Systemic Discrimination
Relatedly, OHR could more proactively address housing discrimination and reduce the burden on victims of discrimination by conducting Director’s Inquiries. In 2021, OHR only opened one fair housing related Director’s Inquiry. Yet blatant housing discrimination occurs in the District with frequency, especially on the basis of source of income. Discrimination against housing voucher holders is serving as a mechanism of racial segregation in the District and must be stamped out.[7] As a community, we cannot expect voucher holders to shoulder the burden of addressing discrimination on their own and we cannot address a systemic problem through individual complaints. OHR should fully use its authority to launch Director inquiries in order to respond to rampant source of income discrimination.
Thank you for this opportunity to testify. The ERC welcomes any opportunity to work in collaboration with OHR and DC Council to ensure that victims of discrimination are able to seek relief for the harm they’ve experienced.
References:
[1] Office of Human Rights. FY2021 DC Office of Human Rights Annual Report. 3 Oct 2022. lims.dccouncil.gov/downloads/LIMS/51391/Introduction/RC24-0223-Introduction.pdf.
[2] OHR. Fiscal Year 2022 Quarter 1 Data Report. 12 Apr 2022. lims.dccouncil.gov/downloads/LIMS/49300/Introduction/RC24-0159-Introduction.pdf.
OHR. Fiscal Year 2022 Quarter 2 Data Report. 30 June 2022. lims.dccouncil.gov/downloads/LIMS/49906/Introduction/RC24-0187-Introduction.pdf.
OHR. Fiscal Year 2022 Quarter 3 Data Report. 6 Oct 2022. lims.dccouncil.gov/downloads/LIMS/51404/Introduction/RC24-0224-Introduction.pdf.
OHR. Fiscal Year 2022 Quarter 4 Data Report. 19 Jan 2023. lims.dccouncil.gov/downloads/LIMS/52098/Introduction/RC25-0009-Introduction.pdf.
[3] OHR. Responses to Fiscal Year 2021-2022 Performance Oversight Questions. Feb 18 2022, p. 5.
[4] Adjami, Nick. “Source of Income Discrimination Perpetuates Racial Segregation.” 19 Aug. 2020, www.equalrightscenter.org/voucher-discrimination-perpetuates-segregation/.
[5] DC Department of Housing and Community Development, et al. Draft for Public Comment – Analysis of Impediments To Fair Housing Choice Washington, D.C., 27 Sept. 2019, p. 315, dhcd.dc.gov/sites/default/files/dc/sites/dhcd/publication/attachments/D.C. Draft Analysis of Impediments to Fair Housing Choice 9.27.2019 (1).pdf.
[6] Committee on Government Operations and Facilities, Performance Oversight Hearing of the Office of Human Rights, February 24, 2022, www.youtube.com/channel/UCPJZbHhKFbnyGeQclJxQk0g/live.
[7] Adjami, Nick. “Source of Income Discrimination Perpetuates Racial Segregation.” 19 Aug. 2020, www.equalrightscenter.org/voucher-discrimination-perpetuates-segregation/.
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The Equal Rights Center (ERC) — a national non-profit organization — is a civil rights organization that identifies and seeks to eliminate unlawful and unfair discrimination in housing, employment and public accommodations in its home community of Greater Washington DC and nationwide. The ERC’s core strategy for identifying unlawful and unfair discrimination is civil rights testing. When the ERC identifies discrimination, it seeks to eliminate it through the use of testing data to educate the public and business community, support policy advocacy, conduct compliance testing and training, and, if necessary, take enforcement action. For more information, please visit www.equalrightscenter.org.
The work that provided the basis for this publication was supported by funding under a grant with the U.S. Department of Housing and Urban Development. The substance and findings of the work are dedicated to the public. The author and publisher are solely responsible for the accuracy of the statements and interpretations contained in this publication. Such interpretations do not necessarily reflect the views of the Federal Government.
