Have you heard of the Department of Fair Employment & Housing? Insofar as housing accommodations are concerned, the function of the DFEH is to eliminate discrimination on the grounds of race, color, religion, sex, sexual orientation, familial status, marital status, source of income, national origin and housing ancestry. More generally, the DFEH is a California state agency which is charged with the protection of the welfare, health and peace of the people of the State of California relative to housing accommodations, including apartment buildings. The DFEH also has similar responsibilities with respect to employment, but those are topics for another article.
The DFEH typically becomes involved in a housing matter when a tenant or rental applicant files a complaint with the agency. The most frequent complaints are that the prospective renter was refused housing on the basis of his or her race or refused housing on the basis that the renter has minor children. Sometimes complaints are filed by an existing tenant on the basis that he/she was evicted because of, and following, the birth of a child.
Once a complaint is filed, the DFEH will forward a copy of the allegations to the manager or owner accused of the discrimination and request that he or she, as the respondent, file a written reply with the Department. Typically the Department will seek specific answers to 20 or so questions, such as: (1) State the reasons why you refused to rent to the complainant, (2) state the reasons why you evicted the complainant, and (3) state the names, unit numbers and telephone numbers for all tenants in the building. As one might imagine, the owner’s written response to those questions may enormously impact the outcome of the proceeding.
The Department may also request the owner to submit copies of rental applications and leases for all existing or prospective tenants.
If the investigator assigned to the case believes that the owner’s position has merit, the otherwise intensive nature of the Department’s investigation of the claim will be curtailed. On the other hand, if the investigator doubts the credibility of the response, or if the response discloses some degree of unlawful discrimination, the Department will pursue the case with a passion.
In most instances, the DFEH will not dismiss a complaint just because the owner writes a believable response. Generally, the Department will send out a field investigator to speak with other tenants, or at a minimum, call those tenants on the telephone to corroborate or discredit the positions of the complainant and the respondent. Sometimes, even if the Department believes that the claim is dubious or largely lacks merit, the DFEH will attempt to persuade the owner to sign a written agreement setting forth guidelines which regulate future acts by the owner. For example, the guidelines may require the owner to formulate and then abide by a written policy relative to leasing units to new applicants or which place restrictions on the eviction of existing tenants. The guidelines might also require the owner to endeavor to rent future vacant units to certain numbers of percentages of families with minor children.
The DFEH has established a mediation program in which it actively encourages complainants and respondents to participate. The greatest single benefit of mediation for the respondent (i.e. the owner or property manager) is that it allows them to control, to a substantial degree, their fate relative to the claims against them. Absent mediation, the respondent would be at the mercy of a commission which may impose significant monetary amounts and fines against the respondent following the presentation of evidence at an administrative hearing. An additional benefit is that the respondent will likely save many thousands of dollars of attorney’s fees incurred in connection with the defense of the hearing. While the respondent would be well-advised to have counsel present with him/her at the mediation, the lawyer’s fees to prepare for and attend the mediation will pale in comparison to the fees incurred in connection with an administrative hearing.
If the matter cannot be settled, the Department may schedule a hearing, much like a trial, before a commission in which both parties and their witnesses are allowed (and in some cases, are compelled) to testify. If the commission finds that the respondent engaged in discriminatory practices, it has broad statutory powers to fashion an award. These include the power to issue injunctive or other equitable relief (such as imposing conditions on the rental of existing and future vacant units), to award monetary damages in favor of the complainant (such as damages for emotional distress and moving costs), and to assess a civil penalty of as much as $10,000.00 for a first offense.
Once an award is rendered, either party may petition the Superior Court to affirm, modify or vacate it. If neither party petitions the Court to review the commission’s order within the statutory period of time, then the award becomes final. The Superior Court may then grant any relief necessary to insure compliance with the commission’s order.
It is obvious that the complaints filed with the DFEH are of serious concern to owners and managers. Upon receipt of such a complaint, I recommend that the owner and/or manager take the following action:
1. Prepare a draft written response to the 20 or so questions asked by the DFEH.
2. Then consult competent counsel with experience handling DFEH matters, and allow him/her to evaluate the draft response before it is submitted to the Department.
3. When responding to the DFEH, emphasize (provided the same is truthful) the fact that the applicant was denied rental of the unit, or the tenant was evicted, for reasons unrelated to race, color, creed, status, etc. In other words, do not affirm that any aspect of the owner’s conduct was discriminatory. If the owner knows that the conduct was in fact discriminatory, specific legal consultation and careful planning are absolutely essential.
4. In settling matters with the owner, the DFEH will often encourage owners to execute an agreement to abide by the DFEH’s specific guidelines in exchange for a dismissal of the complaint. If the owner knows that his conduct was not discriminatory, he should insist that no violation occurred and, for that reason, not agree to anything other than a dismissal of the matter. Chances are likely that the DFEH will then drop their demand for contractual compliance of their guidelines and close the case.
Bear in mind that the DFEH is charged with enforcement of anti discrimination laws. That is appropriate. But a large number of complaints are unfounded. Until the DFEH concludes that there is no merit to the claim, the DFEH is a formidable adversary which must be dealt with cautiously.
Dale Alberstone is a prominent litigation and transactional real estate attorney who has specialized in real property law for the past 36 years. He has been appointed to periodically serve as a judge pro tem of the Los Angeles Superior Court and is a former arbitrator for the American Arbitration Association. He also testifies as an expert witness for and against other attorneys who have been accused of legal malpractice.
Mr. Alberstone has been awarded an AV rating from Martindale-Hubbell. An AV rating reflects an attorney who has reached the heights of professional excellence and is recognized for the highest levels of skill and integrity. His firm is rated A+ by the Better Business Bureau.
The foregoing article was authored on July 1, 2012, and is intended as a general overview of the law and may not apply to the reader’s particular case. Readers are cautioned to consult an advisor of their own selection with respect to any particular situation.
Address correspondence to Dale S. Alberstone, Esq., ALBERSTONE & ALBERSTONE, 1801 Avenue of the Stars, Suite 600, Los Angeles, California 90067. Phone: (310) 277-7300.