Filing a Complaint for Illegal Discrimination in Private Housing

If you believe you have been illegally discriminated against in applying for private housing from a private landlord (meaning neither the owner, you nor the property receive federal government money to assist in making the housing more affordable), you can challenge that discriminatory denial. Read about how to challenge an illegal discriminatory denial below, and which government agencies you should contact.

WHAT GOVERNMENT AGENCIES ARE IN CHARGE OF INVESTIGATING HOUSING DISCRIMINATION COMPLAINTS?

FEDERAL HOUSING AGENCY:

The U.S. Department of Housing and Urban Development (HUD) is a federal agency that enforces the federal Fair Housing Act (FHA).[1423] HUD has to refer the complaints of housing discrimination it receives to the fair housing enforcement agency in the state where the discrimination occurred if that state’s fair housing agency is certified by HUD as having mostly the same laws, procedures, remedies, and judicial review.[1424]

AND

STATE HOUSING AGENCY:

In California, our state fair housing enforcement agency is the Department of Fair Employment and Housing (DFEH), and it is certified by HUD to enforce, investigate, conciliate, and litigate discriminatory housing practices in California.

I BELIEVE A PRIVATE LANDLORD ILLEGALLY DISCRIMINATED AGAINST ME DUE TO MY CRIMINAL RECORD. WHAT ARE MY OPTIONS?

Your main options are:

    You could file an administrative complaint with California’s DFEH (the state housing protection agency);
    You could file an administrative complaint with HUD (the federal housing protection agency);
    You could file a civil lawsuit in state or federal court; OR
    You could allow HUD (the federal housing agency) or California’s DFEH (the state housing agency) to file a lawsuit on your behalf.

> HOW CAN I FIGURE OUT WHICH OPTION TO CHOOSE?

Talk to a lawyer or an advocate at a nonprofit legal services organization if possible—they can help advise you! Also, you can always file a complaint with both HUD & DFEH. More on each of these 3 options below.

You can file an administrative complaint with California’s DFEH or the federal agency HUD, or both. This may lead to a lawsuit in civil court (possible with both DFEH or HUD) or an administrative hearing (HUD only). Read about how to file a state administrative complaint and a federal administrative complaint below.

OPTION 1: FILING A STATE ADMINISTRATIVE COMPLAINT WITH CALIFORNIA’S DFEH.[1425]

You can file an administrative complaint with California’s DFEH within 1 year of the discriminatory act.[1426] To begin the process, you must contact DFEH in writing, online, or by phone, with basic information about the discrimination (what happened to you, when, where, etc.).[1427] The DFEH will conduct an intake interview to learn more about your situation, and to determine whether you can file a formal (“verified”) complaint.[1428] See PG. 430 for a step-by-step explanation of the DFEH’s state complaint process.

Under what circumstances will California’s DFEH accept my complaint?

DFEH is supposed to be very generous in accepting your complaint. However, in some cases, the DFEH may decide that you cannot file a complaint—for example, if the landlord’s conduct is legal, happened more than a year ago, or is outside of DFEH’s legal control, or if you already filed a complaint with DFEH or HUD regarding the same discrimination.[1429]

How much time does the DFEH have to respond and investigate?

Once the DFEH accepts your complaint, it must follow certain time limits. The DFEH has 10 days to inform you of your procedural rights and obligations.[1430] The landlord then has 20 days to respond to the complaint.[1431] Within 30 days, DFEH must begin to investigate your complaint, and it must finish the investigation within 100 days.[1432]

Will I have to do anything else while I wait for a response from the DFEH?

Maybe. At some point (before, during, or after the investigation), the DFEH may also require you and the landlord to go through mediation (meaning an alternative dispute resolution or a settlement negotiation) to see whether you can resolve the problem cooperatively.[1433]

HERE IS A STEP-BY-STEP OVERVIEW OF THE FEHA HOUSING COMPLAINT PROCESS IN CALIFORNIA:[1434]

File a Pre-Complaint Questionnaire.

First, you need to file a Pre-Complaint Questionnaire, Form DFEH-700-01 (English) or Form DFEH-700-01S (Spanish). A Pre-Complaint Questionnaire can be filed by you, the Director of DFEH, or a community organization. You can do this online, by phone, or by mail.

NOTE: It is very important that you provide an up-to-date phone number where you can be reached!

    Online: Go to http://esq5.houdiniesq.com/dfeh/intake/, create an account, log in, and fill out the Pre-Complaint Questionnaire. Alternatively, you can email your Pre-Complaint Questionnaire to [email protected].
    By Phone: Call the DFEH’s Communication Center at (800) 884-1684. If you have a hearing impairment, please call 800-884-1684 or TTY at (800) 700-2320 for service.
    By mail: Request a printed copy of the form through the DFEH website (http://www.dfeh.ca.gov/contact.htm). After you carefully fill out the questionnaire, you can send it to the DFEH office nearest you (see the list below for office locations):
    DFEH—Elk Grove Office
    2218 Kausen Drive, S. 100
    Elk Grove, CA 95758
    DFEH—Bay Area Regional Office
    39141 Civic Center Drive, S. 250
    Fremont, CA 94538
    DFEH—Fresno Office
    1277 E. Alluvial Avenue, S. 101
    Fresno, CA 93720
    DFEH—Bakersfield Office
    4800 Stockdale Highway, S. 215
    Bakersfield, CA 93309
    DFEH—Los Angeles Office
    320 West 4th St., 10th Floor
    Los Angeles, CA 90013

Intake.

Within 10 days of receiving your Pre-Complaint Questionnaire, an investigator from the DFEH will contact you by telephone to conduct an intake interview. The investigator will ask you questions to collect facts about the possible discrimination.

File the Formal Complaint.

If your complaint is accepted for investigation, the DFEH investigator will draft the complaint and ask for you or your representative to sign the complaint. This formal complaint is then served on the “Respondent” (the person or entity that who you have made the allegation against). The Respondent is required to answer the complaint and is given the opportunity to voluntarily resolve it. A no-fault resolution can be negotiated at any time during the complaint process.

If there is also federal law that would protect you, then the formal complaint is also filed with the United States Department of Housing and Urban Development (HUD). Note: HUD usually accepts DFEH’s findings with respect to the alleged discrimination.

Investigation Period.

DFEH must investigate every case in a standard, timely manner.

DFEH has the authority to take depositions, issue subpoenas and interrogatories and seek Temporary Restraining Orders when appropriate.

If the investigative findings do not show a violation of the law, the DFEH will close the case. If the DFEH finds a violation, continue to STEP 5.

Mediation (a.k.a. “Conciliation”)

If the DFEH’s investigation shows that there was a violation of fair housing law, then it will schedule formal mediation/ conciliation conferences between the DFEH’s representatives, you, and the responding landlord.

During the mediation/conciliation conference, the DFEH presents information supporting its belief that there has been a violation and explores options to resolve the complaint.

If formal mediation/conciliation fails, the DFEH will then have to decide whether or not to file a civil lawsuit.

    Possible Outcome #1: If the DFEH determines that you have been discriminated against (that your complaint has “merit”), and that the discrimination cannot be resolved through mediation, the DEFEH will file a civil lawsuit against the landlord on your behalf. (Continue to STEP 6 below).
    Possible Outcome #2: If the DFEH decides not to file a lawsuit (or takes longer than 100 days to file the lawsuit), the DFEH must give you a written notice with the following information: (1) DFEH’s decision regarding your complaint, (2) the reasons for the DFEH’s decision; (3) your right to sue the landlord directly in court (see PG. 434 below on how to file a civil lawsuit in court); and (3) a list resources for filing a civil lawsuit.[1435]

Litigation

If the DFEH decides to litigate the case, it will be heard in civil court.

Court Remedies & Possible Outcomes.

If the lawsuit is successful (meaning the court finds that the landlord discriminated against you), you may be awarded some or all of the following remedies:

    actual money damages (to compensate you for your losses);
    punitive damages (to punish the landlord for committing illegal discrimination);
    injunctive relief (ordering the landlord to stop discriminating or take some other action, such as changing its screening procedures or providing you with housing); AND/OR
    attorneys fees and costs (to reimburse the DFEH or a private attorney for the costs of the lawsuit).[1436]

Below is a flowchart showing what happens when you file a DFEH complaint.[1437] Remember: if HUD (the federal fair housing agency, see PG. 433) also has jurisdiction (legal authority) over your housing complaint, then the DFEH will also file your complaint with HUD at the same time.

OPTION 2: FILING A FEDERAL ADMINISTRATIVE COMPLAINT WITH HUD.

The procedures and potential relief of filing an administrative complaint with HUD are basically the same as filing an administrative complaint with California’s DFEH (see PG. 430 on how to file state housing discrimination complaint with the DFEH).

How much time do I have to file a complaint after the discriminatory act occurs?

You have 1 year after the discriminatory practice occurs to file your complaint with HUD.[1438]

How long does HUD have to respond and investigate?

HUD has 100 days to determine if there is “reasonable cause” to believe the discrimination occurred.[1439] Within these 100 days, HUD must try to facilitate a conciliation agreement (meaning an agreement that solves the problem) between you and the landlord who discriminated.[1440]

Will HUD ever give special treatment to my housing discrimination complaint over other ones?

HUD gives special treatment in 2 types of cases:

    Special Case #1: If HUD decides that a court must act quickly, it can refer your case to the U.S. Department of Justice (U.S. DOJ), which must then file a civil enforcement action for temporary or permanent injunctive relief pending a final disposition on the case.[1441] This civil action doesn’t stop the administrative proceedings; it just tries to create a solution more quickly when it’s deemed necessary.
    Special Case #2: If your complaint has to do with the legality or illegality of any zoning or other land use law, then HUD must refer it to the U.S. DOJ for civil prosecution.[1442] HUD must then file either a charge against the respondent, or dismiss the complaint.[1443]

OPTION 3: YOU CAN FILE A CIVIL LAWSUIT DIRECTLY IN STATE OR FEDERAL COURT—DEPENDING ON WHAT KINDS OF LEGAL VIOLATIONS YOU ARE ALLEGING.

You may file a civil state or federal lawsuit under either or both federal law (e.g., the FHA) and state law (e.g., the FEHA, the Unruh Act, or other laws).

    Under federal Law: FHA and FEHA, you must file your lawsuit within 2 years of the discriminatory act itself OR within 2 years of the landlord violating a mediation/conciliation agreement that HUD or DFEH had facilitated for you (refer back to STEP 5 on PG. 432 above).[1444]
    Under state law: California’s Unruh Act, there is not a clear deadline by when you must file the lawsuit, but it could be as short of a timeline as 1 year![1445] If you are able to do so, talk to an attorney about your options and timelines as soon as possible after the discrimination occurs (see a list of housing legal aid providers across California on PG. 1127).
What remedies are available to me in a state or federal lawsuit?

If the lawsuit is successful (meaning the judge finds that the landlord discriminated against you), you may be awarded some or all of the following remedies:

    actual money damages (to compensate you for your losses);
    punitive damages (to punish the landlord for committing illegal discrimination);
    injunctive relief (ordering the landlord to stop discriminating or take some other action, such as changing its screening procedures or providing you with housing); AND/OR
    attorney’s fees and costs (to reimburse the DFEH or a private attorney for the costs of the lawsuit).[1446]

OPTION 4: The U.S. Department of Justice (U.S. DOJ) or the California Department of Justice (CA DOJ) may also file a complaint—on the behalf of their government agencies OR on your behalf.

The U.S. DOJ may file a civil lawsuit in federal court if there is reasonable cause to believe that:

    any person or group is engaged in a pattern or practice of unlawful acts,
    or (2) the denial of federal or state housing rights is an issue of “general public importance.”[1447]

The California Attorney General, who leads the CA DOJ, may also file a civil lawsuit in state court under the same standard.[1448] In such a case, the California Attorney General and the DFEH (California Department of Fair Employment and Housing) must comply with the California State Bar’s Rules of Professional Conduct in representing your interests, establish an attorney-client relationship, and zealously represent your interests.[1449]

This type of lawsuit is called a “state enforcement action,” and the U.S. DOJ or CA DOJ must file the lawsuit within 18 months (1.5 years) after the discriminatory act.[1450]

DOES MY CITY HAVE ADDITIONAL LOCAL PROTECTIONS?

It may! If your city or county has special protections against housing discrimination of people with records, or has local agencies in charge of enforcing fair housing laws, then you may also want to bring your housing discrimination complaint to the city agency responsible for fair housing where you live. If you aren’t sure, you can always ask someone at the DFEH, or ask a local nonprofit housing attorney (see a list of legal aid organizations that may be able to assist you on PG. 1127). For example, the city of San Francisco, CA has a new law called the “Fair Chance Ordinance” that adds additional protections for people with criminal records who apply to live in city-funded affordable housing (which includes Below Market Rate or “BMR” units in private buildings in SF). Go to Appendix H, PG. 427 for information on the San Francisco law and the process of filing a complaint against a landlord or housing provider who has violated the law in San Francisco.

  1. 1423

    42 U.S.C. § 3601-3619. ↑

  2. 1424

    42 U.S.C. § 3610(f). ↑

  3. 1425

    Please note that the DFEH complaint process was changed starting in 2013. Previously, the Department would issue an accusation after determining that the landlord discriminated against you. You then had the right to choose between an administrative hearing before an administrative law judge, or a civil lawsuit in court. Starting in 2013, the accusation and administrative hearing option were eliminated, so DFEH must automatically file a civil lawsuit if it finds that you were discriminated against. Cal. Gov’t. Code § 12981 (effective Jan. 1, 2004–Dec. 31, 2012), repealed by 2012 Cal. Legis. Ch. 46 § 56 (S.B. 1038) (effective Jan. 1, 2013). For more information on these changes, see Phyllis W. Cheng, Transformative Year for Civil Rights in CA, Los Angeles Daily Journal, Aug. 2, 2012. ↑

  4. 1426

    Cal. Gov’t Code § 12980(a). ↑

  5. 1427

    2 Cal. Code Regs. §§ 10035, 10037. ↑

  6. 1428

    2 Cal. Code Regs. §§ 10038. ↑

  7. 1429

    2 Cal. Code Regs. §§ 10036; 10038(f), (g), (i). If the Department decides not to accept your complaint, you can still file a lawsuit on your own in court. ↑

  8. 1430

    2 Cal. Code Regs. § 10053. ↑

  9. 1431

    2 Cal. Code Regs. § 10055. The landlord can wait to respond if you begin mediation to resolve the complaint. ↑

  10. 1432

    Cal. Gov’t Code § 12980(e), (f). ↑

  11. 1433

    2 Cal. Code Regs. § 10056-57. ↑

  12. 1434

    See Housing Complaint Process, Cal. Dep’t of Fair Empl. & Hous., http://www.dfeh.ca.gov/Complaints_hCompProc.htm. ↑

  13. 1435

    Cal. Gov’t Code § 12980(h); 2 Cal. Code Regs. § 10064. DFEH must give you this notice within 30 days after (1) deciding not to file a lawsuit, or (2) 100 days passes, whichever comes first. When deciding whether to file a civil lawsuit, the Department will consider the following factors: (1) whether there is strong evidence of discrimination; (2) whether a lawsuit is likely to be successful; (3) whether the discrimination involves an important legal issue for establishing new caselaw; (4) whether the lawsuit and its impact on civil rights are consistent with DFEH’s mission; and/or (5) whether landlord offered to resolve the issue directly and you refused. 2 Cal. Code Regs. § 10063(c). ↑

  14. 1436

    Cal. Gov’t. Code § 12989.2. ↑

  15. 1437

    Cal. Dept. of Fair Employment & Housing, Housing, Public Accommodations & Hate Violence Flowchart (Dec. 1, 2014), http://www.dfeh.ca.gov/Complaints_HousFlowChart.htm. ↑

  16. 1438

    42 U.S.C. § 3610(a)(1)(A)(i). ↑

  17. 1439

    42 U.S.C. § 3610(a)(1)(B)(iv), (g)(1). ↑

  18. 1440

    42 U.S.C. § 3610(b). ↑

  19. 1441

    42 U.S.C. § 3610(e). ↑

  20. 1442

    42 U.S.C. § 3610(g)(2)(C). ↑

  21. 1443

    42 U.S.C. § 3610(g)(3). ↑

  22. 1444

    42 U.S.C § 3613(a); Cal. Gov’t Code § 1289.1. ↑

  23. 1445

    See Cal. Civ. Proc. Code § 338(a). DFEH states that the Unruh Act has a three-year limitation period if filed as a private lawsuit (“Highlights of Differences Between State and Federal Housing Laws,” May 20, 1993), but see Mitchell v. Yu Sung, 816 F. Supp. 597 (1993) (court applied a one-year limitation period). ↑

  24. 1446

    42 U.S.C. § 3613(c); Cal. Gov’t Code § 12989.2. ↑

  25. 1447

    42 U.S.C. § 3614(a). ↑

  26. 1448

    Cal. Gov’t Code § 12989.3. ↑

  27. 1449

    Cal. Gov’t Code § 12989(c). California Government Code Section 12981.1 permits DFEH to dismiss a complaint only if “no reasonable cause exists to believe that an unlawful housing practice” has occurred. California Government Code Sections 12980(d) and 12981(g) ensure that complainants are notified of the limited availability of damages in administrative proceedings. ↑

  28. 1450

    Cal. Gov’t Code § 12989.3. ↑