Blog Topic

"Testers": Who are they? Why are they used in housing discrimination investigation?

As landlords, you should always be conscious of conduct which may be perceived as housing discrimination. To be investigated for housing discrimination, you don't have to have an actual intent to discriminate. All that is required for there to be claim of housing discrimination is a rental policy which tends to have a disparate impact on a particular group of people who are protected because of certain traits or characteristics such as gender, race, disability, sexual orientation, marital or familial status. For instance, you can't have a rental policy which allows units to be rented to only family with no children when there's no legitimate and compelling reasons for having such a policy. You don't have to harbor a general hatred or dislike of children which would mean you have the actual intent to discriminate. All it takes is a policy that tends to prevent family with children from renting from you.


If you have a discriminatory policy that's written into some sort of operating manual, it's not hard for the investigating bodies to prove discrimination. Frequently the policies are not documented in company manuals but simply implemented in the selection of prospective tenants. Now that makes proving housing discrimination more difficult. That's why "testers" are used to help in the investigation to gather evidence necessary to establish a discrimination claim.

"Testers" are really just ordinary people who could be retirees or full-time working class. They might tell people they are volunteers but frequently they're paid to work as "testers". They call the compensation a "stipend" which could be hourly or task based. They might get paid as much as $12-15/hr or $50-100 to complete an assignment. In any event, they don't exactly "volunteer" their time.

"Testers" are used on telephonic investigations where they will make phone calls pretending to be prospective tenants. In the phone conversations, they will ask a set of questions designed to obtain specific type of answers which would tend to prove discrimination. For instance, to prove a landlord tends to favor Asians over non-Asian tenants, the investigation bodies will have an Asian "tester" and a nonAsian "tester" call the landlord on two separate occasions asking the same questions looking for completely opposite answers from the same landlord to prove racial discrimination. Typically, they will first gather evidence over the phone. If the results of the phone investigation indicates discrimination, they will then send "testers"to go out to the apartment complex to gather more evidence.

If you're not too careful, you might say the wrong thing which may become part of the reports by the "testers" which may be used as evidence to commence a civil case against you. In these lawsuits which may be brought be either the attorney general, the non-profit organization on behalf of the individuals who claim to be discriminated or the individual themselves, the plaintiffs may ask for money damages which may include punitive damages, injunctive relief, and attorney's fees.

Once these claims end up in the courtroom, they are generally very difficult to defend against for several reasons. For one thing, it's tough to have your words go against those of the "testers" who the court deem to be very credible. And the law favors the tenants in housing discrimination cases.

The stake is usually too high for the landlords who frequently end up settling the case. The terms of the settlement may include a combination of monetary compensation and mandatory classes, and attorney's fees.