Fair Housing: Opportunities to Improve HUD's Oversight and Management of the Enforcement Process
Released: 2004-05-06T00:00:00

Letter

Background

A number of federal statutes prohibit housing discrimination, but the Act is the most comprehensive. This report focuses on enforcement of fair housing rights under the Act, which is one of the federal government’s central tools for fighting discrimination in housing. The Act (as amended) prohibits discrimination on the basis of race, color, religion, national origin, sex, handicap, and familial status. The Act applies to certain issues, including discrimination in the sale, rental, or advertising or financing of housing, the provision of brokerage services; and other activities related to residential real estate transactions. The Act covers all “dwellings,” which are defined generally as buildings designed to be used in whole or part for a residence, as well as vacant land offered for sale and lease for constructing or locating a building, with some exceptions.

The enforcement process granted to HUD and others under the Act has been expanded since the law’s enactment in 1968. The original Act gave no enforcement powers to HUD—other than the ability to investigate and conciliate complaints—and gave limited enforcement powers to private persons and the Attorney General. Under the 1968 Act, private persons who believed they had been discriminated against in housing could enforce the Act by filing a complaint with HUD, and HUD could investigate and conciliate those complaints. The 1968 Act had no mechanism for HUD to adjudicate complaints, so HUD had no options for further enforcement if conciliation efforts failed. The 1968 Act also authorized aggrieved persons to bring a civil action within 180 days of the date of the alleged discrimination. The relief that courts could provide in such cases included only injunctive relief, actual damages, punitive damages up to $1,000, and, where the plaintiff was not able to pay his or her own attorneys’ fees, those fees. Under the 1968 Act, the Attorney General could initiate a civil suit under some circumstances—for example, when there was reasonable cause to believe that a “pattern or practice” of resistance had emerged to the provisions of the Act. The Attorney General could also bring a suit if a group of persons had been denied a right granted by the Act that raised an issue considered to be of general public importance. However, damage awards were not available in actions brought in these types of cases.

The 1988 amendments to the Act provided HUD, private persons, and the Attorney General with more tools and remedies for enforcement. Currently, under the Act as amended, there is an adjudication mechanism, so HUD’s enforcement efforts need not end if conciliation efforts do not succeed. Additionally, aggrieved parties can elect not to utilize the administrative enforcement process and can file civil actions in federal court within 2 years of the alleged discrimination; and the Act provides for actual and punitive damages without limitation and for injunctive relief and attorneys’ fees. As under the original 1968 Act, presently the Attorney General can bring a civil action in pattern or practice cases or cases of public importance. The 1988 amendments allow the Attorney General to commence civil actions in cases of breached conciliation agreements or discriminatory housing practices referred by HUD and to enforce subpoenas. In cases commenced by the Attorney General, courts can award civil penalties up to $100,000 for the second violation, in addition to compensatory monetary damages and attorneys’ fees. The 1988 Act also created a deadline of 100 days for HUD’s investigation and reasonable cause determination.

FHEO directs HUD’s enforcement efforts, although some state and local FHAP agencies handle most enforcement efforts for their states and localities. FHEO refers complaints alleging violations of state and local fair housing laws that are administered by a certified FHAP to that agency. A certified agency that has entered into a memorandum of understanding with FHEO is eligible to participate in the Fair Housing Assistance program. Under this program, FHAP agencies receive funding for fair housing activities and must conform to reporting and record maintenance requirements, agree to on-site technical assistance, and agree to implement policies and procedures provided to the agencies by FHEO. FHEO has staff in each of HUD’s 10 regional offices, called “hubs,” through which it conducts its enforcement efforts. FHEO staff has responsibility for the intake, investigation, and resolution of some of these complaints. Aggrieved persons may also go directly to FHAP agencies, which then perform the intake process. However, FHEO must ultimately approve the filing of all complaints involving alleged violations of the Act. If an aggrieved party contacts a FHEO office regarding discrimination that allegedly occurred in a state or locality that has a FHEO-certified “substantially equivalent” state or local agency (that is, a FHAP agency), FHEO will complete the intake process and refer the complaint to that agency for enforcement.

Under the Act and HUD’s implementing regulations, FHEO can certify an agency if (1) the rights and remedies available under the state or local laws are substantially equivalent to those available under the Act, and (2) the operation of the agency demonstrates that it meets performance standards for timely and thorough fair housing complaint investigations, conciliation, and enforcement. The local law must require the agency to meet the 100- day investigation benchmark contained in the Act. Although the FHAP agency enforcement process must be substantially similar to the HUD process, it need not be exactly the same. That is, FHAP agencies review incoming complaints to determine if they allege a violation of their state or local fair housing laws, the Act, or both; investigate complaints to determine if fair housing laws have been violated; and provide for the final adjudication of complaints, but each of the 100 FHAP agencies can take different actions to accomplish these tasks. These certified state and local agencies could be civil rights agencies like the Michigan Department of Civil Rights.

FHEO field offices monitor the FHAP agencies, review cases FHAP agencies investigate to determine if the agencies are eligible for payment under FHAP, and provide technical assistance. FHEO field offices also have responsibility for other functions, such as assessing compliance with fair housing regulations for entities receiving federal funds, providing community education and outreach efforts for fair housing issues, and managing grants under the Fair Housing Initiatives Program, which funds public and private entities combating discriminatory housing practices.

FHEO tracks fair housing enforcement efforts through its Title Eight Automated Paperless Office Tracking System (TEAPOTS) database. FHEO enforcement personnel input information at major stages of the enforcement process, such as when a complaint is filed at FHEO, when an investigation of a complaint begins, and when a case is resolved. FHEO managers use TEAPOTS to track the progress of fair housing cases and enforcement efforts. All FHAPs have access to TEAPOTS and are required to report their performance information (such as timeliness milestones for initiated and completed investigations) into TEAPOTS or other data and information systems technology agreed to by HUD. TEAPOTS captures numerous aspects of enforcement efforts both nationally and by hub, including the numbers and lengths of enforcement actions; characteristics of complaints, such as basis of discrimination (race, religion, etc.) and subject matter of discrimination (sale, rental, etc.); and type of resolution.

HUD’s Fair Housing Enforcement Process Provides the Framework for Handling Complaints

The fair housing enforcement process consists of three stages: (1) intake, during which FHEO or FHAP agencies receive inquiries from individuals with housing discrimination concerns and determine whether those concerns involve a potential violation of the Act; (2) investigation, during which FHEO or FHAP agency investigators collect evidence to determine if reasonable cause exists to believe that a discriminatory housing practice has occurred or is about to occur; and (3) adjudication, during which an independent fact finder determines whether the person charged with discrimination (the respondent) did in fact violate the Act. The independent fact-finding may occur before an administrative law judge (ALJ) or, if one of the parties chooses, a federal court or state court for complaints filed with HUD and FHAP agencies, respectively. The Act and other guidelines establish timeliness benchmarks for completing certain parts of the enforcement process. An overview of HUD’s basic fair housing enforcement process is shown in figure 1.

Intake: FHEO Analyzes Inquiries to Determine Whether They Constitute Fair Housing Complaints

In the intake stage, FHEO hubs receive inquiries (called “claims” from 1996 to 2001), determine which ones involve a potential violation of the Act, and file fair housing complaints for those that do. FHAP agencies also receive inquiries and work with complainants to determine whether a potential violation of the Act, state or local law, or both has occurred. According to FHEO headquarters staff, the process usually starts when an individual contacts a FHEO hub by telephone, fax, or mail; in person; or over the Internet. Intake analysts refer numerous contacts they receive that are not related to fair housing to appropriate outside organizations. Intake analysts record contacts dealing with fair housing as “inquiries” in TEAPOTS. The analysts interview complainants and may do other research—for example, property searches and searches of newspaper or corporate records—to see if enough information exists to support filing a formal complaint. This initial process is known as “perfecting” a complaint, although it does not always result in a complaint. In order for a complaint to be perfected, it must: contain the required four elements of a Title VIII complaint: the name and address of the aggrieved party (the person who was allegedly injured by a discriminatory housing practice), the name and address of the respondent, a description and address of the dwelling involved, and a concise statement of the facts leading to the allegation; and satisfy the Act’s jurisdictional requirements that the complainant has standing to file the complaint; that the respondent, dwelling, subject matter of discrimination (e.g., refusal to rent or refusal to sell), and the basis (e.g., race, color, familial status) for alleging discrimination are covered by the Act; and that the complaint has been filed within a year of the last occurrence of the discriminatory practice.

Hub directors decide whether these conditions are met. If so, the inquiry becomes a perfected complaint; otherwise, it is dismissed. Intake analysts record key information about perfected complaints in TEAPOTS, have complainants sign the official complaints, and send letters of notice about the complaint and the enforcement process to both complainants and respondents. The complaint file is then usually delivered to the investigator.

According to FHEO headquarters staff, the intake stage for a complaint that will be investigated by FHEO—rather than a FHAP agency—is usually considered complete when the complaint file is delivered to a FHEO investigator. For such complaints, FHEO’s Title VIII Intake, Investigation, and Conciliation Handbook (Handbook) establishes a timeliness benchmark of no more than 20 days for the intake stage. However, FHEO also performs intake for inquiries that, because of their characteristics, are ultimately referred to a FHAP agency for investigation. For example, if a person alleges a discriminatory practice that is within the jurisdiction of a FHAP agency, FHEO intake analysts complete the intake stage, file the complaint, and refer the case to the FHAP agency. For such complaints, the Handbook establishes a timeliness benchmark of no more than 5 days for the intake stage.

Investigation: FHEO Collects Evidence to Determine If Reasonable Cause Exists to Believe a Discriminatory Housing Practice Has Occurred or Is about to Occur

During the investigation stage, FHEO investigators collect evidence to determine whether reasonable cause exists to believe that a discriminatory housing practice has occurred or is about to occur. Similarly, FHAP agencies may collect evidence to determine if a local or state fair housing law has been violated. The Handbook provides guidance for investigators during this process, although the Handbook notes that investigations will vary (see table 1).

According to agency guidance, once an investigator completes an investigation, the appropriate hub director reviews the results and makes a determination of whether reasonable cause exists to believe that a discriminatory housing practice has occurred or is about to occur. With the concurrence of the relevant HUD’s regional counsel, the hub director issues a determination of reasonable cause and directs the regional counsel to issue a “charge” on behalf of the aggrieved person. The charge is a short written statement of the facts that led FHEO to the reasonable cause determination. If the hub director decides that no reasonable cause exists to believe that a discriminatory housing practice has occurred; then, upon concurrence of the regional counsel, the hub director dismisses the complaint. In a March 6, 2003, memorandum, HUD’s Office of General Counsel (OGC) in headquarters requested that regional counsels send OGC’s Office of Fair Housing the final draft of any charge that they propose to file and that they not file charges until they have received a response from OGC’s Office of Fair Housing.

At any stage before the investigation is complete, the enforcement process can end by either conciliation or administrative closure. FHEO’s Handbook states that conciliation is the process by which FHEO “assists the complainant and respondent in achieving a just and mutually acceptable resolution of the disputed issues in a Title VIII complaint.” The Act requires that HUD try to conciliate all complaints to the extent feasible, starting at the time the complaint is filed and continuing until the final charge is issued or the case is dismissed. The Handbook and federal regulations implementing the Act allow an individual to act as investigator and conciliator on the same case, but the regulations state that generally investigators will not conciliate their own cases. Instead, other investigators not investigating a complaint conciliate such complaints. Conciliation agreements are to seek to protect the public interest in furthering fair housing through various provisions, such as requiring the respondent to provide FHEO with periodic reports. FHEO may also close complaints administratively for several reasons—for example, if the complainant withdraws the complaint.

The regulations implementing the Act require FHEO and the FHAP agencies to complete an investigation, conciliate a case, or otherwise close a complaint within 100 days of the filing date unless doing so is “impracticable.” An investigation is considered complete, and the 100-day deadline ends, when a hub director makes a cause or no-cause determination in which the regional counsel concurs. If the investigation cannot be completed within 100 days, FHEO must notify the complainant and the respondent in writing of the reasons for the delay. This written notification is called the 100-day letter.

Adjudication: An Independent Fact Finder Determines Whether a Violation of the Act Has Occurred

Once a determination of reasonable cause has been made and a charge has been issued, an independent fact finder determines whether the respondent has in fact violated the Act (FHAP agencies also use independent fact finders to make this determination). HUD’s regulations state that OGC must file charges with the Office of Administrative Law Judges within 3 business days. When the complainant and respondent receive notice of the charge, each has 20 days to decide whether to have the case heard in a federal district court or by an ALJ. The complainant may intervene as a party, and the complainant and the respondent may be represented by a lawyer before the ALJ. The Act also requires that the ALJ hearing begin within 120 days of the date of the charge, unless impracticable, and that the ALJ decision be issued within 60 days of the end of the ALJ hearing, unless impracticable. If the ALJ determines that no discrimination has occurred, the case is dismissed. If the ALJ determines that discrimination has occurred, he or she is authorized to award injunctive or other equitable relief, economic and noneconomic damages, and civil penalties, as applicable. Any party adversely affected by the ALJ’s decision may appeal it to the HUD Secretary and then to the appropriate appellate court, within certain time frames. HUD and any person entitled to relief under the final decision may petition the appropriate court of appeals to have the final decision enforced.

If either party elects to go to federal district court after the charge is issued, the HUD Secretary must authorize a civil action in federal district court, and the U.S. Attorney General must undertake the action on the complainant’s behalf. The complainant may participate and be represented by a lawyer in this court proceeding. The respondent may also choose to be represented by counsel. Any party adversely affected by the final court decision may file a petition in the appropriate appellate court.

Some Practices Suggest Ways to Expedite and Improve the Enforcement Process

Some practices for handling fair housing complaints varied significantly among the FHEO and FHAP agencies we visited, and officials noted that certain practices had helped them expedite or improve the quality of the enforcement process. For example, some FHEO offices and FHAP agencies used experienced investigators during the intake stage, while others did not. Some officials at locations that used experienced investigators said that this practice had improved the quality of intake and decreased the overall length of the enforcement process. The variation in enforcement practices between FHEO and FHAP agency locations is not surprising, given the freedom those offices have to administer the enforcement process. In fact, there is a potential for the variation to be even greater than we observed, as we visited only 3 of the 10 hubs and just 7 of the 100 FHAP agencies. Even this limited look revealed practices in some locations that could potentially expedite cases if adopted elsewhere. However, HUD has not performed a systematic nationwide review of the enforcement practices at all of these various locations to identify practices with such potential.

Involving Experienced Investigators in Intake May Shorten Process and Facilitate Investigations

We found two personnel practices that officials at some FHEO and FHAP agency locations believed had improved their enforcement processes. First, several locations we visited used experienced investigators during their intake processes, while others generally did not. Although all three hubs we visited used dedicated intake analysts rather than current investigators to handle intake responsibilities, two hubs used some former investigators as intake analysts. Several FHAP agencies we visited had no dedicated intake analysts. At these agencies, current investigators simply shared the intake of complaints. Some FHEO officials told us that using investigators for intake improved the thoroughness of intake and decreased the overall length of the enforcement process. Some officials said that investigators have a better understanding of the information needed for jurisdiction and investigations, and they thus focus their intake efforts on getting that information.

Second, one FHAP agency we visited had instituted a team approach to enforcement. The agency had changed its entire enforcement process in 1997 to incorporate this approach, using several teams consisting of “civil rights representatives” (as opposed to intake analysts and investigators) and a “coach attorney.” Teams handled the enforcement process starting with the initial contact and finishing up with the reasonable cause recommendation. Teams rotated through the intake function for 1 week each month, investigating all cases that originated in intake that week. Although this FHAP agency made other changes simultaneously with the change to the team approach, FHAP agency officials said that the team approach had helped its backlog of cases drop significantly and improved the quality of its enforcement process. It is not possible to isolate the team approach’s impact on the FHAP agency’s fair housing effort, and the complaint numbers provided by the agency included other civil rights enforcement work, such as enforcement of equal employment opportunity laws. However, FHAP agency officials told us that, after the team approach had been fully implemented, the average complaint processing time fell from 476 days to 335 days.

In addition to personnel practices, we found that one FHAP agency was using a software system to improve the intake procedure. In addition to using TEAPOTS, this particular FHAP agency, in conjunction with a software company, had developed Contact Management System (CMS) software that had significant extra capabilities. The CMS generated a series of initial intake questions for the FHAP agency’s civil rights representative to ask during intake and then constructed follow-up questions based on the answers to the previous questions. These follow-up questions reflected the elements that would be necessary to prove discrimination in a given case. At the end of its approximately 2-hour intake process, the FHAP agency tried to have either a perfected complaint or a reason that the contact did not warrant a perfected complaint. A FHAP agency official told us that the CMS software had helped decrease the length and improve the thoroughness of its enforcement process. Again, it is not possible to isolate the impact of the CMS software, but after the software was installed, average complaint processing times for the FHAP agency’s fair housing and other civil rights work decreased from 335 days to 252 days.

Differences in Investigations, Including the Degree of Attorney Involvement and Conciliation Methods, May Improve the Enforcement Process

We observed numerous variations in investigative practices among the FHEO and FHAP agencies we visited. In several locations, officials said that their specific practices had helped them expedite the process, improve the quality of the process, or both. First, some locations involved attorneys earlier and more frequently during the investigation than other locations. Second, some FHEO offices and FHAP agencies simultaneously investigated and conciliated complaints, while others delayed the investigation while conciliating. Third, one hub and one FHAP agency customarily used separate persons to investigate and conciliate a complaint, while at other hubs and FHAP agencies, a single person handled both of these tasks. Fourth, some enforcement locations employed a tool called a “bubble sheet” to help meet the 100-day requirement for completing investigations. Last, one FHAP agency used software that provided additional investigative tools that TEAPOTS did not provide.

OGC Involvement

At the FHEO offices and FHAP agencies we visited, investigators and attorneys interacted to different degrees, and several officials told us that greater interaction had resulted in shorter and more thorough investigations. For example, at one hub the regional OGC had weekly meetings with investigators at the same location and biweekly meetings with investigators at other offices in the region. Interaction at another hub was less formal, but both regional OGC attorneys and the investigators said that frequent and meaningful interaction occurred on most cases through the informal “open-door” approach. At a third hub, OGC attorneys were not yet formally interacting with investigators, although they had recently signed a memorandum of understanding to do so. At FHAP agencies, we saw similar variations. One FHAP agency, as mentioned earlier, had a “coach attorney” on each team to help from the earliest stages of the investigations. At other FHAP agencies we visited, investigators had more limited interaction with the FHAP agency attorney.

In our survey of the 10 hub directors, 5 said that involving OGC in investigations had a great or very great impact on investigations, improving thoroughness, decreasing length, or both. Officials cited various reasons for this result, including that the interactions with OGC: reduced the amount of work wasted on aspects of a case that should not receive investigative attention, shortening investigations; reduced the amount of additional work involved in seeking attorney concurrence, decreasing the length of investigations; helped the investigators pursue the appropriate leads at the best times during an investigation, increasing thoroughness; and created more cooperation among complainants and respondents, as the parties believed that attorneys were more involved in the enforcement process. “significant involvement at complaint intake, in determinations of jurisdiction, in investigative plan development, in conducting investigations, in the effort to resolve cases informally through conciliation, and in making determinations of reasonable cause.”

That memorandum also required each regional counsel and each FHEO hub director to enter into working agreements with each other to formalize their working relationships. As of November 24, 2003, every hub had those agreements in place, and one HUD official said that the new memorandum of understanding had resulted in improved communication between investigators and OGC.

Simultaneous Conciliations

Some HUD locations we visited put investigations on hold when conciliation looked likely, while others did not. Some fair housing officials at the locations that simultaneously investigated and conciliated told us that doing so not only expedited the enforcement process but could also facilitate conciliation. Because the parties were aware that the investigation was ongoing, two hub directors told us they were sometimes more willing to conciliate. Additionally, some officials at the offices that delayed the investigation while attempting conciliation told us that this practice increased the number of calendar days necessary to investigate a case. However, one hub official told us that simultaneous investigation and conciliation could waste resources, as it might not be necessary to obtain further evidence in a case that would be conciliated. Overall, 6 of the 10 hub directors told us that simultaneous investigation and conciliation had a great or very great impact on the length of the enforcement process, and all 6 said that the practice decreased the length. Four directors said that the practice had a great or very great impact on the thoroughness of investigations, and these four told us that it increased the thoroughness of investigations.

Investigator Conciliation of Own Cases

Investigators at some FHEO locations and FHAP agencies customarily conciliated their own cases, while other locations usually used separate investigators and conciliators. Officials we spoke with were divided on the impact of this practice. Some officials told us that having the same person performing both tasks had not caused problems. Other officials— including some at locations where investigators conciliated their own cases—indicated a preference to have different people perform these tasks. One official said that separating these tasks enabled simultaneous conciliation and investigation of a complaint, a practice that speeded up the process. Another official noted that parties might share information with a conciliator that they would not share with an investigator and that a conflict of interest might result if one person tried to do both. The same official said that although investigators were not allowed to use information they learned as conciliators during investigations, the information could still influence the questions conciliators posed—and thus the information they learned—as investigators. Similarly, at one hub an OGC official told us that information learned as a result of conciliation efforts should not be included in investigative findings. A few enforcement officials at locations that did not separate the tasks said that they did not have enough staff to have separate conciliators. One hub director said that a FHAP agency in its region was experimenting with a separate mediation track in addition to the conciliation mechanism. The mediation occurred early in the process and involved a professional, nongovernment mediator. The director said the mediation had usually pleased the parties, resulting in timely resolutions of cases and beneficial results.

Response to 100-day Requirement

In responding to the 100-day requirement, several hubs and FHAP agencies used variations of what they called a “bubble sheet”-—a list of investigative milestones and a time line for completing them-—in order to meet the 100- day requirement. If an investigator missed a milestone, the “bubble burst,” and the investigator might not meet the 100-day requirement. Some officials said that the bubble sheet helped investigators complete each of the small steps of the investigation in a timely fashion and thus increased the likelihood of compliance with the 100-day requirement. Nevertheless, some people said that the 100-day requirement was arbitrary and often unattainable, and their response to the 100-day requirement was simply to send the 100-day letter at the appropriate time.

Software

As in the intake stage, the CMS software used at one FHAP agency offered additional tools during investigations that TEAPOTS did not. The CMS generated interview questions for investigations based on the information obtained in intake and then generated a list of critical documents that were usually needed for certain types of investigations. According to FHAP agency officials, the CMS improved the quality of investigations and decreased the length of cases. One FHEO center we visited was attempting to store possible witness questions in a central database for investigators to review to see if any were applicable to their cases, but this system was not automated and relied on investigators to compile the list. Officials at that center hoped that having a central location for all such questions would give investigators at least some examples of possible questions to ask. Officials at the FHAP agency noted that some data they are required to enter into TEAPOTS duplicated information in CMS and indicated that it would be preferable not to enter this information twice. Another FHAP agency we visited that used other software in addition to TEAPOTS had begun a pilot program to alleviate this duplication, using a program that would allow information entered into TEAPOTS to be incorporated into the FHAP agency software without keying the data again.

Some Hubs and FHAP Agencies We Visited Had Limited Adjudication Involvement over Last Several Years

We did not observe any significant variations across agencies in the adjudication stage of the enforcement process, possibly in part because the hubs and FHAP agencies we visited had adjudicated very few cases through their administrative processes. For example, one hub and one FHAP agency we visited told us they did not have any cases that had gone through the administrative hearing process over the last 5 years. Officials at the FHAP agency told us that in the rare cases that could go to an administrative proceeding, the FHAP agency encouraged parties to opt for state court, since otherwise the FHAP agency would have to commit resources to the process. Agency officials said that steering parties to one forum is inconsistent with the enforcement framework of the Act and the neutral role FHEO and FHAP agencies should play with respect to forum selection.

FHEO and FHAP Agencies Had Discretion in Implementing Practices, but FHEO Had Not Examined Different Practices

The variations among hubs, centers, and FHAP agencies are not surprising, given the discretion FHEO locations and FHAP agencies have had to administer the enforcement process. While FHEO’s Handbook contains significant guidance, policies, and procedures, FHAP agencies have not been required to follow them. Rather, FHAP agencies must meet certain performance standards to obtain or maintain certification as substantially equivalent agencies. Under these standards, FHAP agencies must have engaged in timely, comprehensive, and thorough fair housing complaint investigation, conciliation, and enforcement activities. For both FHEO locations and FHAP agencies, the variations we observed could be even greater, given our small sample. Additionally, according to the 2001 National Council on Disability report, variations in the hubs’ practices had increased since 1996. Similarly, the potential for variations in FHAP agencies’ practices has likely grown with the number of FHAP agencies, which increased from 64 at the start of fiscal year 1996 to 100 at the start of fiscal year 2004.

Many FHEO hub directors indicated that practical improvements could be made to the enforcement process; in fact, at least four directors believed that practical improvements could be made to each stage. Several hub directors provided specific ideas for improvements to the intake stage. One hub director said that her hub had recently written its own intake handbook and had set a requirement of completing intake within 15 days, rather than the 20 days specified in FHEO’s Handbook. Five of the 10 directors said that improvements could be made to the investigation stage for FHEO that would reduce the length of the process to a great or very great extent. One director specifically mentioned a practice—mediation in the early stages of the complaint process—that was in place at FHAP agencies in his region. Additionally, 4 of the 10 directors said that practical improvements could be made to the investigation stage that would increase the thoroughness of the enforcement process to a very great extent. For example, several directors suggested either increasing OGC’s staff to provide more assistance to investigators or putting a non-OGC attorney on staff at the hub or field level as a resource for the investigators. Additionally, one hub director said that a checklist she had recently developed for supervisors reviewing investigations should increase the thoroughness of investigations. Regarding the adjudication stage, one hub director said that the region was concerned about not knowing whether DOJ would accept a fair housing case if a party in the case elected to have it heard in federal district court.

Despite the existing differences in practices among the entities involved in enforcing the Act and officials’ belief that some practices could be improved, HUD has not performed a systematic nationwide review of its or FHAP agencies’ enforcement practices since 1996. The 1996 review, a business process redesign, focused on FHEO’s practices, although one FHAP agency was represented in the process. FHEO uses other reviews for practices in its offices, such as Quality Management Reviews (QMR), in part as peer reviews that allow collaboration and information sharing between FHEO offices. Additionally, FHEO reviews cases FHAP agencies investigate to determine if the agencies are eligible for payment under the program. However, the QMRs and FHAP agency reviews are not systematic, nationwide reviews of the practices that FHEO and FHAP agencies are using.

Enforcement Data Show Some Trends in Numbers, Types, and Outcomes of Cases

Our analysis of FHEO data on fair housing enforcement activities from fiscal year 1996 to 2003 revealed a number of trends. We found that: The number of claims or inquiries FHEO received annually remained stable until 2002 but then increased substantially. The number of complaints filed trended downward in the earlier years but then rose steadily.

An increasing proportion of these complaints alleged discrimination on the basis of handicap, while the most frequently cited basis of discrimination—race—declined as a proportion of all complaints.

While the number of investigations completed fell in 1997 and 1998, more investigations were completed in each subsequent year. FHAP agencies rather than FHEO conducted most of the investigations.

The outcomes of investigations changed over the period, with an increasing proportion of investigations closed without finding reasonable cause to believe discrimination occurred.

The frequency with which FHEO and FHAP agencies completed investigations within 100 days increased over the period.

The trend data we present are reported on a fiscal year basis. We could not measure the volume of claims and inquiries before 1996. Generally, FHEO treated all inquiries it received between 1989 and 1994 as complaints, regardless of whether the contact alleged a violation of the Act. During parts of 1994 and 1995, FHEO did not collect information on those inquiries that did not result in an investigation.

The Number of Inquiries and Complaints Filed Increased

From 1996 until 2002, FHEO’s annual numbers of claims and inquiries alleging violations of the Act varied only slightly, averaging about 4,600 per year, but rose to more than 5,400 in 2003 (fig. 2). Because FHEO does not require FHAP agencies to report the number of claims and inquiries received during this period, we could not determine the number of claims and inquiries received by FHAP agencies.

The combined number of complaints perfected and filed declined slightly from 1996 until 1998, but then began increasing steadily (fig. 3). By 2003, the number of complaints filed annually had risen to more than 8,000, with FHAP agencies responsible for investigating the largest share. Of the 53,866 complaints filed during the period, FHAP agencies were responsible for investigating 67 percent, and FHEO was responsible for investigating 33 percent.

Overall, FHAP agencies were responsible for investigating an increasing portion of complaints filed each year from 1998 until 2003. In part, these increases may be attributable to the growth in the number of FHAP agencies nationwide. Seven states (Arkansas, Illinois, Maine, Michigan, New York, North Dakota, and Vermont), Washington, D.C., and 26 localities created FHAP agencies between 1996 and 2003 (fig. 4). FHAP agencies were responsible for investigating an increasing number of complaints filed between 1998 and 2003 in all except the Denver region (Region 8). In comparison, four FHEO regions—Boston, Chicago, New York, and Philadelphia—were responsible for investigating a declining number of complaints filed during this period.

The Basis, Subject Matter, and Regional Distribution of Complaints Filed Changed

As the number of complaints filed rose between 1996 and 2003, the basis of, or reasons for, the alleged discrimination changed somewhat (fig. 5). First, although complaints alleging discrimination based on race continued to dominate, accounting for around 40 percent of the total, the annual percentage declined slightly over the period. The share of complaints alleging discrimination based on familial status declined from one-quarter to about one-sixth of complaints filed during the period. In contrast, complaints alleging discrimination based on handicap increased significantly, rising by more than 13 percentage points to become the second most frequently cited basis of complaints. Complaints alleging discrimination on the basis of religion, national origin, and retaliation also grew somewhat, while those alleging discrimination because of sex and color declined.

The subject matter, or issue covered by the Act, of complaints also changed from 1996 through 2003. Most of the complaints filed alleged discriminatory terms, conditions, or privileges (e.g., refusal to repair, charging an inflated rent) or refusal to rent, but the share of these complaint issues fell over the period from a high of about 63 percent and 36 percent, respectively, in 1996 to 55 percent and 23 percent in 2003 (fig. 6). At the same time, the share of complaints alleging failure to make reasonable accommodation or modification rose significantly, from less than 1 percent in 1996 to 16.5 percent in 2003. Complaints alleging a single issue represented about 68 percent of complaints filed during that period, while complaints alleging more than one issue represented the remaining 32 percent.

While the volume of complaints filed nationwide grew during the period, two regions, Denver (Region 8) and Seattle (Region 10) saw a decline (table 2). Conversely, two regions saw substantial increases. Specifically, complaints filed in Kansas City (Region 7) doubled during the period and almost tripled in the New York region (Region 2). The increases may be attributable, in part, to the addition of FHAP agencies from 1996 through 2003. By November of 1999, the New York region had two FHAP agencies online. In fiscal year 2000, the number of complaints filed in the New York region had more than doubled, rising from 213 to 442 complaints, or 6.3 percent of all complaints filed. FHEO referred 337 of these complaints to the FHAP agencies for investigation.

The Number of Completed Investigations Rose, While Outcomes Varied

Investigations may be completed in several ways, each leading to a particular outcome. First, an investigation is considered complete when it is closed administratively—for example, the complainant withdraws the complaint or staff are unable to locate the complainant. Second, a FHEO- conducted investigation may be considered complete when the complaint is transferred to DOJ because of FHEO’s agreement to do so in certain instances, such as in cases involving criminal activity or pattern and practice issues. Third, FHEO or the FHAP agency may complete the investigation through conciliation with the parties, or the parties may settle among themselves. Fourth, FHEO or the FHAP agency may determine that reasonable cause may exist to believe that a discriminatory housing practice has occurred (find cause). Finally, FHEO or the FHAP agency may determine that there is not reasonable cause (no cause).

The number of investigations completed annually during the period rose after falling significantly in 1997 through 1998 (see fig. 7). This pattern was similar for both FHAP agencies and FHEO, though the number of investigations completed by FHAP agencies declined in 2003 and the number of investigations completed by FHEO declined in 2002.

The most frequent outcome of investigations completed during the period was a determination that there was no reasonable cause to believe that discrimination had occurred (see fig. 8). The share of investigations resulting in this outcome rose from just over 40 percent in 1996 to around 48 percent in 2003. Conversely, the share of investigations completed through successful conciliation or settlement declined somewhat during the period, but this outcome remained the second most frequent—about one-third of all investigations completed during the period.

A determination of reasonable cause accounted for the smallest share of outcomes, around 5 percent of all completed investigations. TEAPOTS does not have a code specifically indicating that an investigation was completed with a finding of reasonable cause, but does provide for a date on which cause was found. We used this date to measure the number of investigations completed with a finding of reasonable cause. According to a HUD official, FHEO hubs do not record cause dates in TEAPOTS consistently. Specifically, at least two hubs may initially record the date the case is transferred to the regional counsel, rather than the date of the issuance of a determination of reasonable cause with which the regional counsel has concurred. These hubs then enter a new date when the regional counsel concurs and a charge of discrimination is issued. Therefore, the number of investigations that we report as completed during each fiscal year with a finding of reasonable cause may not match the number of charges that HUD reports, particularly for fiscal year 2003.

We sorted HUD’s data on outcomes by basis of complaint, subject matter, and region. Our analysis revealed the following: The percentage of no-cause determinations varied somewhat according to the basis of discrimination alleged. Above-average proportions of investigations that involved religion, retaliation, and race ended in no- cause determinations, (55, 53, and 54 percent respectively, compared with 47 percent overall). Similarly, 41 percent of investigations involving familial status and 40 percent of investigations involving handicap as at least one of the bases for discrimination ended in conciliation or settlement, compared with 32 percent overall.

Outcomes also differed by the subject matter, or issue involved. A greater proportion of investigations that resulted in a no-cause finding had discriminatory terms or refusal to rent as an issue (61 and 30 percent, respectively). Conversely, however, relatively few complaints determined to have no cause involved refusal to sell or noncompliance with design and construction as issues (4 and 1 percent, respectively).

Regional differences were also apparent in outcomes. Investigations completed in the Atlanta region (Region 4), for instance, were more likely to end in no-cause determinations—53 percent—than investigations in any other region. Similarly, investigations completed in the Denver region (Region 8) were more likely to end in conciliation or settlement. Finally, the overall percentage of investigations completed with a reasonable cause determination varied widely among regions, from as high as 10 percent in the Boston region (Region 1) to as low as 1 percent in the Fort Worth region (Region 6).

Complaint investigations that resulted in a determination of reasonable cause generally proceeded to the adjudication stage. Because of TEAPOTS data limitations, we were not able to determine the final resolutions (that is, the reasons for closing the cases, including decisions on whether or not an actual violation of the Act had occurred) of all complaints that reached the adjudication stage. Specifically, as table 3 shows, for 8 percent of investigations in which FHEO made a determination of reasonable cause and 30 percent of investigations in which a FHAP agency made a similar determination, information on the reason for closure was missing in TEAPOTS. For the remaining FHEO and FHAP agency investigations (those for which the reason for closure was available), we identified the following: The independent fact finder found that discrimination had occurred in about 3 percent of the FHEO cases and 7 percent of the FHAP agency cases.

About one-third of all cases (FHEO and FHAP agency) resulted in a judicial consent order—that is, the parties negotiated a settlement, either alone or through an appointed settlement judge, which was submitted to the independent fact finder as a voluntary agreement to resolve the case.

Of the FHEO cases, 46 percent were closed when the parties elected to go to court, about 6 percent resulted in conciliation or settlement, 2 percent resulted in administrative closure, about 1 percent resulted in judicial dismissal, and in less than 1 percent the independent fact finder found that no discrimination occurred.

Of the FHAP agency cases, the independent fact finder dismissed 16 percent, 9 percent resulted in conciliation or settlement, 4 percent were closed administratively, and 4 percent resulted in a finding that no discrimination occurred.

The Number of Investigations Completed within 100 Days Increased in 2001—2003

The numbers of investigations completed within 100 days by both FHEO and the FHAP agencies increased significantly after 2001 (fig. 9). Some of the improvement in the number of FHEO investigations completed in 100 days may have been the result of an initiative aimed at reducing the number of aged cases in FHEO’s inventory. FHEO undertook the initiative in 2001 after completing only 14 percent of its investigations within the 100-day timeframe in 2000. The number completed in 100 days rose in 2002, to 41 percent of all investigations. At the same time, the number of FHAP agency investigations meeting the 100-day benchmark remained fairly stable (23 to 33 percent) over the period 1996 to 2003, rising most markedly from 2002 to 2003 by more than 30 percent. In January 2004, FHEO established monthly efficiency goals aimed at monitoring the progress of the hubs in meeting both the 20-day intake and 100-day investigative timeliness benchmarks. It is too soon to determine what effect this initiative might have on the timeliness of investigations.

Data Limitations Preclude Comprehensive Measurement of Time Taken by Each Stage of the Enforcement Process

While data were generally available to measure the length of both FHEO’s and FHAP agencies’ investigations, we found that reliable data were lacking on the intake and adjudication stages handled by FHAP agencies. First, HUD does not require FHAP agencies to report on intake activities, and FHAP agencies accounted for intake on 42 percent of all complaints filed in fiscal years 1996 through 2003. Second, while TEAPOTS contained data on the dates that inquiries were received for investigations completed by FHAP agencies, we question the reliability of these data. According to a FHEO official responsible for TEAPOTS, FHEO staff may have routinely used the date on which cases were transferred to FHAP agencies as the “initial inquiry” date. In addition, TEAPOTS data show that 20,226 (54 percent) of complaints investigated by FHAP agencies were filed the same day that the inquiries were received—that is, the intake stage began and ended on the same date. Third, HUD does not require FHAP agencies to report the results of the adjudication of closed investigations. Accordingly, for many complaints investigated by FHAP agencies that reached the adjudication stage, TEAPOTS did not show an end date for adjudication. Finally, TEAPOTS was missing these dates for some complaints investigated by FHEO as well. Using the data that were available, we measured the typical length of each stage using medians—that is, the number at the exact midpoint of the range of days required to complete each stage (or where there was an even number of observations, the mean or average of two at the midpoint).

TEAPOTS data indicate a median of 12 days for the intake stage (from the date of the initial inquiry to the date the complaint was filed) for cases handled by FHEO in 1996 through 2003. The data showed that 35 percent of complaints investigated by FHEO were filed the same day that the claims or inquiries were received (that is, the intake stage began and ended on the same date), 28 percent within 20 days, and 31 percent within 21 days to 3 months of the date that the claim or inquiry was received. FHEO’s new monthly efficiency reports aim to, among other things, monitor the hubs’ progress in completing the intake process within 20 days.

The median number of days for investigations (from the date the complaint was filed to the date the investigation was completed) was 259 for complaints investigated by FHEO (fig. 10).The median number of days varied somewhat, depending on the outcome of the investigations (e.g., administrative closure, finding of reasonable cause, finding of no cause, etc.). FHEO completed 61 percent of its investigations within a year of the date the complaint was filed.

We could not measure the time required to adjudicate all cases for which FHEO found cause. Specifically, of the 719 investigations for which FHEO determined that reasonable cause existed to believe that discrimination had occurred, TEAPOTS included data on 339 cases that were adjudicated within HUD. In these cases, the median time required to complete the adjudication process was 203 days. In an additional 330 cases, one or both parties elected to have their complaints heard in district court at the cause date, or shortly thereafter. For these individuals the enforcement process continued, but FHEO did not record the length of the judicial process. TEAPOTS also did not have information on adjudication for 50 cases for which FHEO found cause.

Many Factors Can Influence the Length and Thoroughness of the Title VIII Enforcement Process

We found that numerous factors affected the length and thoroughness of the enforcement process. First, hub directors we surveyed said that the characteristics of complaints—certain issues, for example, and the presence of multiple bases—could increase the time needed for investigations, reduce thoroughness, or both. Second, both hub directors and FHEO and FHAP agency officials said that specific practices could make investigations shorter and more thorough. Third, hub directors and other officials pointed to human capital issues as potentially increasing the length and decreasing the thoroughness of investigations, including staff shortages, low skill levels, lack of training and guidance, and inadequate travel resources. Finally, hub directors noted that national performance goals could reduce the number of aged cases but had little effect on timeliness or thoroughness.

The Characteristics and Volume of Complaints May Affect Timeliness of the Enforcement Process

Most hub directors stated that the issue of a complaint had a great or very great effect on the amount of time required to complete the enforcement process. Complex issues such as refusing to provide insurance or credit could add time to investigations. For example, investigators might have to analyze statistics to determine if the complainant was treated differently from the norm. According to one director, some issues, such as failure to make reasonable accommodation, could require time for staff to conduct time-consuming on-site visits. In addition, some directors thought that complaints involving multiple issues could take longer to investigate.

Agency data tend to support some of the directors’ observations (fig. 11). While investigations took a median of 211 days to complete during the period, the median for investigations involving discriminatory lending was 295 days; and for noncompliance with design and construction issues, it took 284 days. However, the median for investigations involving reasonable accommodation or modification was just 162 days.

Although directors generally did not believe that any particular prohibited basis had an effect on the length of investigations and thus on the enforcement process, one director did note that complaints involving multiple bases would likely increase the length of the enforcement process. We found that the median number of days required to complete investigations involving multiple bases was slightly higher than for single- issue investigations—217 days. The median number of days FHAP agencies needed to complete an investigation varied more across specific prohibited bases than it did for FHEO. For FHEO, the median length of investigations ranged from a low of 223 days (handicap) to 302 days (retaliation) (see fig. 12). For FHAP agencies, the median length of investigations ranged from a low of 175 days (handicap) to 211 (sex).

Most directors stated that the volume of complaints received in their region had a great or very great effect on the length of the enforcement process. According to one director, a large volume of complaints created competing demands on staff time. Another director noted that the volume of complaints could lengthen the enforcement process if staff resources were in short supply.

Half (5) of the hub directors also believed that the volume of inquiries and complaints had a great or very great effect on the thoroughness of the enforcement process. One respondent noted that complex issues in a complaint or large volumes of complaints in a region might decrease the thoroughness of the process if resources were strained, staff were not adequately skilled to accommodate the amount or level of difficulty of the work to be done, or both. Fewer directors (2 out of 10), said they believed that the basis of complaints had a great or very great effect on the thoroughness of the process. One director noted that, regardless of the factors involved, the thoroughness of the enforcement process should never be compromised.

Certain Practices Could Improve the Enforcement Process

As we have seen, some HUD and FHAP agency officials identified two intake practices that they believe shortened the enforcement process, increased its thoroughness, or both. The first—involving investigators in intake—was cited by 4 of the 10 HUD hub directors that responded to our survey. Further, officials at the FHAP agency that used the team intake and investigation approach noted that it had led to better investigations that were conducted in less time. The second practice—using CMS enforcement software—was credited by the FHAP agency that used it with facilitating both timeliness and thoroughness.

HUD and FHAP agency officials also cited several investigative practices that increased the thoroughness or decreased the length of the enforcement process or both. First, several HUD officials said that early and frequent OGC involvement was important to increasing the thoroughness of investigations. Second, some enforcement officials said that simultaneous conciliation and investigation might decrease the length of investigations. Third, some HUD hub directors said that using TEAPOTS affected the length and thoroughness of the process to a great or very great extent: specifically, 6 hub directors indicated that using the system increased the thoroughness of the enforcement process, decreased the length of the process, or both. Some officials, however, also told us that TEAPOTS could be improved, and one FHAP agency’s CMS software offered an alternative system that the FHAP agency credited with reducing the length of its process and improving its thoroughness. The CMS software provides investigators more sophisticated tools than TEAPOTS offered for planning and conducting investigations. Finally, one hub official said that alternative mediation at the outset of the complaint process could help decrease the length of some complaint investigations.

Human Capital Challenges Also Affect the Enforcement Process

FHEO officials and others we interviewed identified human capital management challenges that had negatively affected the fair housing enforcement process, including the number and skill levels of FHEO staff, the quality and effectiveness of training, and other issues.

Number of Staff

FHEO officials told us that hiring freezes had left a number of FHEO offices with chronic staffing shortages, especially among supervisors and clerical workers and that these shortages had never been fully resolved. The shortages affected not only enforcement of the Act, but also FHEO’s other responsibilities, forcing managers to assume heavier caseloads and professional staff to perform administrative duties rather than concentrating on enforcement. Hub directors told us that hiring activity in the last 3 years had at least partially abated the chronic staffing shortages. However, they added that FHEO now faces the prospect of losing staff because a corrective action plan requires that FHEO, consistent with HUD’s key workforce planning effort, have fewer employees than it currently has.

As figure 13 shows, the total number of full-time equivalents (FTE) in FHEO has fluctuated over the last 10 years, falling from a high of 750 in fiscal year 1994 to a low of 579 in fiscal year 2000. In 2003, FHEO’s FTEs rose once more to 744 after a concerted hiring initiative, although the workforce effort mentioned above suggested a level of 640. Currently, FHEO faces the challenge of meeting a mandatory ceiling of 640. FHEO comprised about 6 percent of HUD’s total workforce until fiscal year 2002 and 7 percent in 2003, when FHEO directors received hiring authority for new staff. FHEO staff have other responsibilities beyond enforcing Title VIII, including monitoring program compliance by housing providers receiving federal funds, performing Fair Housing Initiatives Program (FHIP) grant management, monitoring FHAP agencies, providing technical assistance, and performing education and outreach activities.

FHEO hired 167 staff beginning in July 2002 as part of a departmental effort to reach its requested ceiling by September 30, 2002. That is, HUD was attempting to reach 9,100 FTEs at the end of fiscal year 2002, a number that would equal the approved fiscal year 2002 FTE level and the requested fiscal year 2003 level. FHEO’s hiring initiative, like HUD’s overall, was not in line with the department’s workforce planning efforts. The most important of these, the Resource Estimation and Allocation Process (REAP), a series of department studies conducted from 2000 through 2002, to assess HUD’s staffing requirements, recommended a total FTE ceiling for FHEO of 640. As a result of HUD’s hiring initiative, HUD had a staffing level of 9,395 at the beginning of fiscal year 2003—295 above the approved fiscal year 2002 and requested fiscal year 2003 levels. Therefore, HUD was forced both to reprogram more than $25 million to cover the costs of the newly hired excess staff and to submit to Congress a corrective action plan consistent with REAP. HUD’s Strategic Placement Plan, issued in January 2004, would reduce FHEO’s excess staff to the mandated level of 640 FTEs by the end of fiscal year 2004 through voluntary and, if necessary, involuntary reassignments. However, as of February 2004, FHEO remained at 727 FTEs, and FHEO officials told us they did not know how they would meet the mandated level on schedule. The officials also expressed concern that they would lose many of their best staff through the voluntary reassignment plan.

Officials expressed concern not only with the insufficient number of staff but also the lack of staff at key positions. Some HUD managers said that due to unfilled supervisor positions in their regions, existing supervisors were not able to review materials as carefully as they could have with those positions filled. For example, one center director told us that investigators did not get supervisory input on initial investigative plans due to a vacant supervisory post. This center director said that the gap in supervision decreased the thoroughness and sometimes increased the length of investigations, as existing supervisors were unable to complete work in a timely manner.

Staff Skills and Experience

Some hub directors and other officials we spoke with cited concerns about the noncompetitive reassignment of staff into FHEO. They noted that the level of staff skills could influence the length and thoroughness of the enforcement process and that the reassignment process had a generally negative impact on FHEO’s overall skill levels. According to these officials, while many of the reassigned staff had worked at HUD for years, their skills were often not transferable to FHEO activities, which require specific analytical, investigative, and writing skills. Some directors cited the skills issue as a greater problem for FHEO than the actual numbers of personnel. FHEO’s own internal review also cites concerns about reassigned employees’ qualifications, skills, and work products and about the amount of time and supervision these employees require. FHEO documentation shows that 106 staff were reassigned to the program under various HUD realignments from 1998 to 2002. Figure 14 shows the numbers of staff in the three hubs we visited by their years of experience with FHEO and reassignment status. Although FHEO has brought many new staff on board recently through competitive hiring, many staff in the hubs we reviewed came to the organization via noncompetitive reassignment.

Although figure 14 shows that more than half of the FHEO staff currently located in the three sites we visited had fewer than 10 years of experience with FHEO, many have a significant number of years of federal service. Figure 15 shows a snapshot of the same FHEO employees in the three sites we visited by their years of federal service. The figure demonstrates that half of the FHEO employees in the three sites we visited have 20 or more years of federal service, and 14 percent have 30 or more years of federal service.

Retirement eligibility was an issue not only for the three sites we visited, but also for FHEO as a whole. Officials expressed concern about the loss of skilled and experienced staff to retirement, and personnel data provided by the HUD human resources staff show that 40 percent of FHEO employees overall were eligible for either early or immediate retirement in February 2004 (see fig. 16). Moreover, as we have noted previously, officials that we spoke with also expressed concern that current plans to eliminate a significant number of FHEO staff by voluntary reassignment could cause skilled workers to leave FHEO and seek opportunities elsewhere.

Providing effective training is another human capital challenge that FHEO faces. Half of the directors told us that the quality and effectiveness of training helped reduce the length of the fair housing enforcement process, and six said that it improved thoroughness. For example, some directors said that training serves to expedite investigations as staff gain more technical skills. Other directors said that training improves thoroughness because staff can recognize issues of discrimination and decide what evidence is needed to support complaints.

We heard concerns from FHEO staff, an ALJ, and others outside of HUD about the quality or availability of training for FHEO employees. Most staff we spoke with reported that they had received initial formal training for their positions, though not always in a timely fashion. A list of courses supplied by the HUD Training Academy, which provides the majority of formal training for FHEO, showed that the basic course in investigation had been offered annually in all but 1 of the last 5 years. However, depending on the hiring date, a new staff member might have to wait 1 year or more to attend the basic course. Potentially compounding this problem, hub directors told us that although training was available in fiscal year 2003, lack of travel funds sometimes prevented them from sending staff to training out of the area. Finally, budget data show that although FHEO had initial approval from the HUD Training Academy to spend $416,000 for training in fiscal year 2003, the HUD Training Academy reduced FHEO’s training funds to $200,000 as part of the department’s overall efforts to reduce expenditures to cover the cost of excess staff hiring.

FHEO recognized the need for additional training by establishing the HUD Fair Housing Training Academy, which is slated to open in the summer of 2004. FHEO officials told us that they hope to standardize what the agency believes are uneven fair housing processes and practices implemented around the nation by FHEO and its FHAP agency partners, create a more professional group, and possibly reduce turnover rates at FHAP agencies by certifying attendees. Initially, however, the academy will serve staff from only FHAP agencies, not FHEO employees. Officials explained that FHAP agency funds would cover the costs of this initial training.

FHEO’s human capital challenges are symptomatic of those facing HUD as a whole. FHEO, like the department and other federal agencies, is experiencing significant challenges in deploying the right skills in the right places at the right time, is facing a growing number of employees who are eligible for retirement, and is finding it difficult to fill certain mission- critical jobs—a situation that could significantly drain its institutional knowledge.

We have observed that federal agencies need effective strategic workforce planning to identify and focus on the long-term human capital issues that most affect their ability to attain mission results. We identified five key principles that strategic workforce planning should address, which include (1) involving top management, employees, and other stakeholders in developing, communicating, and implementing the strategic workforce plan; (2) determining the critical skills and competencies that will be needed to achieve current and future programmatic results; (3) developing strategies that are tailored to address gaps in number, deployment, and alignment of human capital approaches for enabling and sustaining the contributions of all critical skills and competencies; (4) building the capability needed to address administrative, educational, and other requirements important to support workforce strategies; and (5) monitoring and evaluating the agency’s progress toward its human capital goals and the contribution that human capital results have made toward achieving programmatic goals. In developing strategies to address workforce gaps, we reported that agencies should, among other things, consider hiring, training, staff development, succession planning, performance management, use of flexibilities, and other human capital strategies and tools that can be implemented with resources that can reasonably be expected to be available.

We have reported in the past that HUD had not done the strategic workforce planning necessary to address its human capital challenges. Like HUD, FHEO does not have a comprehensive strategic workforce plan to help it meet key human capital challenges. REAP, which estimates the staff needed to handle HUD’s workload in each of its offices, does not include the extensive analysis involved in a comprehensive assessment. However, since we last reported, HUD contracted a technical adviser to conduct a comprehensive workforce analysis. Such an assessment would cover current workforce skills, anticipated skill needs, current and future skill gaps, and needed training and development that will be used to develop a comprehensive 5-year departmental workforce plan. Additionally, HUD plans to rollout over the next 3 years a customized human resources and training information system known as the HUD Integrated Human Resources and Training System (HIHRTS). HUD documentation says that the system will replace several legacy systems; will integrate all human resource information into one platform, making information available to managers for strategic planning and employee development; and helping ensure that HUD employees are used effectively.

Lack of Travel Funds Can Affect How Thoroughly Cases Are Investigated

Officials from headquarters and the sites we visited also told us that inconsistencies in the amount and availability of travel funds impaired the length and thoroughness of the fair housing enforcement process. As mentioned previously, in May 2003, Congress approved the reprogramming of funds within HUD to cover the cost of excess staff hiring, including a $7.7 million reduction in travel funds. FHEO officials told us that following this reprogramming, they had no travel funds for up to 6 months, preventing investigators from making timely visits to the sites of complaints. Budget data show that FHEO has experienced larger decreases in travel funds than HUD as a whole. From fiscal year 2002 to 2003, HUD’s allotment for travel decreased by 12 percent. FHEO’s travel allotment, however, decreased by 17 percent over the same period. Directors reported that interruptions in travel funds in fiscal year 2003 had impeded efforts to plan and manage investigations. Directors also told us that uncertainties regarding the department’s ultimate annual appropriations amount had forced headquarters to limit travel funds at the beginning of fiscal years and prevented them from establishing a firm annual travel budget. Without this budget, directors said, they could not plan for the travel that would have helped reduce the length of investigations.

Directors reported using several methods to stretch their travel funds, including curtailing and delaying travel, limiting the time investigators could spend in the field, catching up on needed travel when funds became available at the end of the fiscal year, reducing travel for FHEO’s other responsibilities outside of fair housing enforcement, and asking investigators from offices closer to the site of the complaint to assist with the investigation. Some investigators told us that they had used their own vehicles or funds for site visits and conducted desk investigations. At the same time, budget data show that hub directors’ routine meetings consumed an increasing share of FHEO’s travel budget from fiscal year 2001 to 2003. Director’s meetings utilized 13 percent of FHEO’s travel expenditures of approximately $900,000 in fiscal year 2003.

Performance Goals May Affect the Length of Investigations

Hub directors we visited told us that while FHEO’s national performance goals have helped reduce the number of aged cases, these goals have had a negligible impact on the thoroughness of the fair housing enforcement process and could create competing demands for staff time. Performance reports show that the percentage of aged fair housing complaints for HUD nationwide has declined steadily since fiscal year 2000, exceeding the national goals in fiscal year 2001 through 2003. For example, in fiscal year 2003, the national goal was a 25 percent maximum for aged cases and FHEO achieved 23 percent. However, there are no national goals that directly relate to the thoroughness of investigations or the fair housing enforcement process. Regardless, some directors told us that although they strive to meet performance goals, they are more motivated by the statute’s 100-day benchmark and the need to provide good customer service.

Directors also cited a tension between the need to meet the 100-day benchmark and the simultaneous need to conduct a thorough investigation and said that at times one goal cannot be achieved without some cost to the other. One director stated that while mindful of the 100-day benchmark, she would not close a case to meet the time limit unless she felt that the investigation had been thorough. Directors told us that the existence of overall performance goals for FHEO could exacerbate the problem of competing demands. For example, annual goals routinely set achievement targets in FHEO’s area of responsibility outside of Title VIII enforcement, including program compliance review, monitoring FHIP and FHAP agencies grantees, increasing the number of substantially equivalent agencies, and providing training on accessibility and handicap rights. The time and resources needed to meet these targets could increase the challenges involved in meeting Title VIII commitments in a timely and thorough manner.

Conclusions

The fair housing enforcement process provides a framework for considering complaints of housing discrimination. However, persons who have experienced alleged discrimination in housing can sometimes face a lengthy wait before their complaint is resolved. Because flexibility is built into the process, enforcement practitioners have devised a variety of practices for processing inquiries and complaints, some of which could improve the timeliness and thoroughness of investigations. Our limited look at enforcement operations at FHAP agencies and FHEO centers within 3 of FHEO’s 10 regions revealed practices that could potentially expedite cases if they were adopted elsewhere. Further, many FHEO hub directors told us they believed that every stage of the fair housing enforcement process could be improved. However, practitioners may be unaware of such practices because FHEO has not taken steps to identify those practices that hold the promise of improving the fair housing enforcement process.

Because of data limitations—specifically, data that are of questionable reliability, missing, or not currently collected—FHEO does not know how much time individuals face from the day they make an inquiry to the day they learn the outcome of their cases, particularly when FHAP agencies handle the investigation. Without comprehensive, reliable data on the dates when individuals make inquiries, FHEO cannot judge how long complainants must wait before a FHAP agency undertakes an investigation. Similarly, without comprehensive, consistent, and reliable data concerning the dates that complaints are finally decided, HUD cannot determine how long the intended beneficiaries of the Act typically wait for a decision. Data that provide a comprehensive view of the enforcement process from start to finish for both FHEO and FHAP agencies could help HUD target problem areas and improve management of the enforcement process. TEAPOTS provides a platform that FHEO and FHAP agencies may use for recording these key enforcement data.

FHEO’s human capital challenges serve to exacerbate the challenge of improving enforcement practices. Human capital management issues at both HUD and FHEO are an immediate concern. FHEO’s planned reduction in staff and other human capital factors may affect its ability to enforce fair housing laws. To meet such challenges, HUD managers will need to continue their efforts to analyze workforce needs and to develop a workforce planning process that makes the best use of the department’s most important resource—the people that it employs now and in the future. A comprehensive strategic workforce planning process that builds on the five principles that we have observed at other federal agencies will help FHEO and other departmental programs identify and focus their investments on the long-term human capital issues that most affect the agency’s ability to achieve its mission.

Recommendations

To improve the management and oversight of the fair housing enforcement process, we recommend that the HUD Secretary direct the Assistant Secretary of FHEO to take the following 4 actions: establish a way to identify and share information on effective practices among its regional fair housing offices and FHAP agencies; ensure that the automated case-tracking system includes complete, reliable data on key dates in the intake stage of the fair housing enforcement process for FHAP agencies; ensure that the automated case-tracking system includes complete, reliable data on key dates in the adjudication stage of the fair housing enforcement process for both FHEO and FHAP agencies; ensure that the automated case-tracking system includes complete, reliable data on the outcomes of the adjudication stage of the fair housing enforcement process for FHEO and FHAP agencies; and ensure that hubs enter cause dates into the automated case-tracking system in a consistent manner.

Further, we recommend that the Secretary take the following action: In developing HUD’s 5-year Departmental Workforce Plan, follow the five key principles discussed in this report. As part of the comprehensive workforce analysis, ensure that HUD fully considers a wide range of strategies to make certain that FHEO obtains and maximizes the necessary skills and competencies needed to achieve its current and emerging mission and strategic goals with the resources it can reasonably expect to be available.

Agency Comments and Our Evaluation

We provided a draft of this report to HUD for its review and comment. We received written comments from the department’s Assistant Secretary for Fair Housing and Equal Opportunity. These comments, which are included in appendix IV, indicated general agreement with our conclusions and recommendations. The Assistant Secretary noted that FHEO has already begun to take steps to improve the quality and timeliness of the fair housing enforcement process. Specific planned actions that are consistent with our recommendations include (1) implementing a new Business Process Redesign review; (2) establishing a reporting requirement addressing post- cause results; and (3) enhancing, in conjunction with the department, FHEO’s efforts at workforce analysis. The Assistant Secretary commented that FHEO would take a close look at all of the report’s recommendations. HUD’s comments also included several suggestions to enhance clarity or technical accuracy. We revised the report to incorporate these suggestions and have included them in this report where appropriate.

As agreed with your offices, unless you publicly release its contents earlier, we plan no further distribution of this report until 30 days after its issuance date. At that time, we will send copies of this report to the Chair of the Senate Committee on Banking, Housing and Urban Affairs; the HUD Secretary; and other interested congressional members and committees. We will make copies available to others upon request. In addition, this report will also be available at no charge on our Web site at http://www.gao.gov.

Please contact me or Mathew J. Scirè at (202) 512-6794 if you or your staff have any questions concerning this report. Key contributors to this report were Emily Chalmers, Rachel DeMarcus, Tiffani Green, M. Grace Haskins, Marc Molino, Andrew Nelson, Carl Ramirez, Beverly Ross, and Anita Visser.

Scope and Methodology

Our engagement scope was limited to fair housing investigations conducted under Title VIII of the Civil Rights Act of 1968, as amended, rather than fair housing activities under Section 504 of the Rehabilitation Act of 1973 or Title VI of the Civil Rights Act of 1964.

To describe the fair housing enforcement process, we reviewed the legislation, regulations, and the Office of Fair Housing and Equal Opportunity’s (FHEO) guidance for intake, investigation and adjudication of fair housing complaints. We also interviewed officials at FHEO headquarters who are responsible for oversight and policymaking. In addition, we conducted site visits and structured interviews with key FHEO and Fair Housing Assistance Program (FHAP) agency officials, including FHEO hub, FHAP agency, and center directors; intake staff; investigators and attorneys. We selected 3 of the 10 FHEO hubs and 8 of the 18 centers for site visits (table 4). We selected the hub sites on the basis of (1) the number of “aged” cases within the region, (2) the total number of complaints received, (3) the ratio of FHEO investigations to all investigations, and (4) the number of organizational components—that is the number of centers and offices within the hub. We ranked each hub on the basis of whether they were among the 3 hubs with the highest values, the 3 with the lowest values or the 4 hubs with the middle values for the dimensions we measured. We also visited at least one FHAP agency in each of the selected hub regions.

To describe the trends in FHEO data on the numbers, characteristics, outcomes, and length of fair housing investigations, we used data from FHEO’s automated case-tracking system (TEAPOTS). Specifically, we obtained data on inquiries and claims made and investigations completed as of September 2003, for each fiscal year from 1996 through 2003. Using these data, we computed the following: number of inquiries and claims made, number of complaints filed, number and outcome of investigations completed, percentage of investigations completed within 100 days, and median length of each enforcement stage.

For the purposes of measuring the percentage of investigations completed within 100 days, we measured the time elapsed between the most recent of the date filed, date reopened, or date reentered and the date the investigations were either transferred to the Department of Justice, closed administratively, conciliated or settled, found to have reasonable cause, or found not to have reasonable cause.

To assess the reliability of TEAPOTS data we used, we examined (1) the process FHEO and FHAP agencies use to capture and process inquiry and complaint information and (2) the internal controls over the TEAPOTS database that store and retrieve this information. We interviewed the system’s managers, reviewed documentation of and reports produced by the system, compared some of our results to summary reports previously produced by FHEO, and performed basic reasonableness checks on TEAPOTS data. Missing values and fields, inconsistencies between fields, and out-of-range values in fields were infrequent and did not pose a material risk of error in our analysis. We concluded that the data we analyzed were sufficiently reliable for the purposes of this report. However, we encountered several limitations in the TEAPOTS data that prevented us from using them to fully describe the trends in the numbers, characteristics, and outcomes of fair housing investigations. Because of indications that TEAPOTS data may either be incomplete or inconsistent regarding the dates that inquiries were made, and the dates that an independent fact finder ultimately determined that discrimination did or did not occur, we were unable to provide complete information on one of our report objectives. Specifically, we were unable to report on the average time taken by two phases of the enforcement process for cases handled by FHAP agencies.

In attempting to determine the average time needed to complete each stage of the fair housing enforcement process, we relied on data from TEAPOTS. Specifically, we obtained TEAPOTS data on complaint investigations completed from 1996 through 2003 by FHEO and FHAP agencies and attempted to measure (1) the time elapsed between a complainants’ first contact with either the FHEO or a FHAP agency and the date that the complaint was filed; (2) the time elapsed between filing a complaint and completing an investigation; and (3) the time elapsed between completing an investigation and the final disposition, the end of the adjudication process. Because of inconsistent intake data and missing adjudication data, we were unable to determine the average time that had been required to complete the first and last stages of the complaint process for cases handled by FHAP agencies.

Hub Directors’ Survey Questions and Responses

Introduction

(p. 3-44), this term covers race, color, religion, sex, national origin, familial status, and handicap.

The U.S. General Accounting Office (GAO) is currently reviewing HUD’s Fair Housing Enforcement efforts. As part of this review, we have visited a number of Fair Housing and Equal Opportunity (FHEO) offices to talk with enforcement management and staff.

For all questions, please consider the conditions in your entire HUB region, including centers and sites.

To ensure the broadest coverage, GAO is now conducting this survey of all 10 regional FHEO HUB Managers.

The purpose of this survey is to identify the factors that HUD fair housing enforcement practitioners believe impact the length and thoroughness of the Title VIII fair housing enforcement process including intake, investigation, and adjudication.

In the survey, we use the following terms: Length: The amount of time that elapses between the date a Title VIII complaint is received at HUD as an inquiry and the date that the complaint is resolved (e.g., administrative closure, conciliation, adjudication through ALJ hearing, or other means).

During the interview, we will ask you to read and discuss your answers, providing examples to the extent possible.

Thoroughness: The extent to which accurate and complete evidence is collected and analyzed to enable staff (investigators, attorneys, etc.) to recommend and make the appropriate resolution.

If you have any questions about this survey or the GAO study, please contact _____________ at ____________ or e-mail her at: _______________ Thank you for your participation.

Subject matter/issue: As used in the HUD Title VIII Investigations Handbook (p. 3-24), subject matters and issues include items such as rentals, sales, lending, and redlining.

Prohibited basis of discrimination: As used in the HUD Title VIII Investigations Handbook 1. To what extent do the following factors influence the amount of time it takes to complete the Title VIII fair housing enforcement process? We understand that many things can affect the length of the process. However, we ask that when responding to each specific factor, you hold all others constant and check the box that comes closest to your “best answer.” Check one box for each row.

Human Capital Management & Planning performance management goals set for your Region Director’s Elements set for you as a HUB Director L. Workforce analysis (Alignment of staff skill with mission accomplishment)

N. Please specify. (Type in the shaded blank below.) 2. To what extent do the following factors influence the ability of your staff to thoroughly complete the Title VIII fair housing enforcement process? We understand that many things can affect the thoroughness of the process. However, we ask that when responding to each specific factor, you hold all others constant and check the box that comes closest to your “best answer.” Check one box for each row.

L. Workforce analysis (Alignment of staff skill with mission accomplishment)

N. Please specify. (Type in the shaded blank below.) 3. To what extent do the following enforcement practices impact the overall length of the Title VIII fair housing enforcement process (or to what extent would they impact the length of the process, if your office does not practice them)? We understand that many things can affect the length of the process. However, we ask that when responding to each specific practice, you hold all others constant and check the box that comes closest to your “best answer.” Check one box for each row.

Page 5 of 8 conduct investigations while in conciliation 4. To what extent do the following enforcement practices impact the overall thoroughness of the Title VIII fair housing enforcement process (or to what extent would they impact the thoroughness of the process, if your office does not practice them)? We understand that many things can affect the thoroughness of the process. However, we ask that when responding to each specific practice, you hold all others constant and check the box that comes closest to your “best answer.” Check one box for each row.

Page 6 of 8 5. To what extent could practical improvements be made to each of the following Title VIII activities that would reduce the amount of time required to complete the entire process? Please consider any ideas or practices that differ from HUD's current enforcement process and that, with proper funding and training, would improve the overall length of the process. You will have an opportunity to share these ideas and practices during our follow-up interview. Check one box for each row.

B. Investigation stage (including the conciliation process)6. To what extent could practical improvements be made to each of the following Title VIII activities that would improve the overall thoroughness of the entire process? Please consider any ideas or practices that differ from HUD's current enforcement process, and that, with proper funding and training, would improve the overall thoroughness of the process. You will have an opportunity to share these ideas and practices during our follow-up interview. Check one box for each row.

B. Investigation stage (including the conciliation process)7. Please describe any noteworthy practices that your office uses in each stage of the Title VIII fair housing enforcement process. (If you are using the Word version of this survey, please type your answers in the shaded blanks.)

Investigation Stage (including the conciliation process)

Some hub directors may have defined the investigation and adjudication stages differently than other directors.

Comments from the Department of Housing and Urban Development

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