Eboni and Julius SternJohn

Eboni SternJohn and Julius SternJohn, an African-American couple, lived in a racially and culturally diverse apartment complex.  According to the complaint they filed in federal court, the defendants terminated the rental leases for the SternJohn family and other African-American residents shortly after the defendants bought the complex.  The residents targeted by the new landlord had lived in the complex for years.  The SternJohns and other African-American residents also alleged that the new landlord failed to perform needed repairs for them, such as fixing the heating system in their apartments during the winter.

The SternJohns charged that, after they reported this improper conduct to the landlord and enforcement authorities, the defendants pursued a campaign of harassment – including filing groundless eviction actions, physical intimidation, and other reprisals.

After over two years of litigation – and a day before trial – the defendants entered a confession of judgment for $1,050,000.  In connection with that judgment for the SternJohn family, the Court imposed a five-year Consent Decree that requires the defendants, among other things, to do the following at their own expense:

  • to use an independent management company to operate the many properties owned by the defendants;
  • to market affirmatively to persons other than White, non-Latinos;
  • to be tested periodically for fair housing violations; and
  • to submit quarterly reports and affidavits to the Court’s designated monitoring agency and to the SternJohns’ attorneys proving that the defendants are fully complying with the fair housing laws.

In the face of the defendants’ initial non-compliance with the Consent Decree, the SternJohn family obtained Court orders extending the Consent Decree for two additional years, imposing monetary sanctions, and awarding attorney’s fees and costs.

Based on the evidence developed in the SternJohns’ case, the U.S. Department of Justice subsequently prosecuted a pattern-and-practice case on behalf of other aggrieved residents and former residents of properties where racial discrimination reportedly occurred.

Justin Cummins and Brendan Cummins, of Miller O’Brien Cummins, PLLP, represented the SternJohns.

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V. Elaine Gross

The level of racial segregation on Long Island has been appallingly high, but it was a problem that was hiding in plain sight.  ERASE Racism decided to fight back.

I’m the President of ERASE Racism, and we first researched and published a report called Long Island Fair Housing: A State of Inequity.  The report identified both the persistence of structural racism and the complete inadequacy of enforcement efforts at all levels of government.

Using the report as a point of departure, we organized a coalition of civil rights advocates to push for comprehensive fair housing ordinances in both Nassau County and Suffolk County.  We helped improve Suffolk’s law, and help completely revamp Nassau’s law to have several provisions that go well beyond the provisions of the Fair Housing Act.

We continue to see towns and villages perpetuating segregation either by resisting affordable housing altogether, or by having housing and planning policies (such as preferences for existing residents) that, in practice, perpetuate racial segregation.

A new report called The Racial Equity Report Card: Fair Housing on Long Island documents the fact that we have a long way to go.

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Margo Borkin

Margo Borkin, an Associate Broker with the Real Estate One office in Farmington Hills, Michigan, faced this problem in the summer of 2007.

Ms. Borkin was helping an African-American family look for a home to purchase in Livonia, a nearby community.  Livonia, which has been called “the whitest city in America” (97% white in a city of more than 100,000 people) has been the site of numerous fair housing litigations.

While showing a home, she found a handwritten note that read: “You sell to those Niggers and you’ll regret it!  You move to an all white area and dump those coon on us, we’ll track you down.  Don’t betray us.”

Instead of destroying the note, or attempting to steer the family to another neighborhood, Ms. Borkin chose to do the right thing. She informed her office manager who in turn informed counsel.   Subsequently, the incident was reported to John Obee, a Cooperating Attorney with the Fair Housing Center of Metropolitan Detroit.

In view of the threats, the FBI was also contacted.  The FBI investigation revealed that the author of the note had made similar threats to other agents and African American families.  He was charged with three counts of violating 42 U.S.C. § 3631.

The defendant ultimately pleaded guilty, and was sentenced to one year and a day imprisonment.

None of this would have been possible had it not been for the actions of Ms. Borkin, and the support she received.

The African-American families who were victimized by the threats have moved into Livonia.

[Thanks to Michael Olshan, Legal Services Coordination for the Fair Housing Center of Metropolitan Detroit for bringing this story to our attention.]

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Private attorney general standing

Fair Housing organizations have long relied on the standing rules set forth in Havens Realty Corp. v. Coleman, but the Havens rules have actually created unexpected difficulties in the application of the “diversion of resources” and “frustration of mission.”  In addition, organizations have generally failed to take advantage on their own behalf of the right not to be denied truthful information about housing availabilities because of protected class.

Unless and until the composition of the Supreme Court becomes friendlier to fair housing,  there is ample reason to fear that the Supreme Court would undercut Havens entirely when it next faces a fair housing standing case.

Thus, there is a pressing need to explore state and local legislative means by which to codify even more expansive standing rules.

The best way to proceed is for states and localities to adopt a simplified “private attorney general” model.  Draft language to achieve this goal can be linked to below, as can an article describing the need for such legislation, and the successful effort to pass such legislation in Nassau County.  That County’s Human Rights Law is also found as a “related resource” to the right. [You need to tunnel down to § 21-9.7(d)(3)(vi).]

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Banning sexual orientation/gender identity bias in fed-assisted housing

For millions of gay and lesbian Americans, the federal Fair Housing Act may provide protection against discrimination based on race or national origin, but no protection from discrimination on the basis of sexual orientation or gender identity.

Even more remarkable, federal regulation still does not bar discrimination on the basis of sexual orientation or gender identity even in federally assisted housing.

There are more than four million units of federally assisted housing in the United States, and the federal government must no longer be a silent partner in discrimination against the LGBT community.

There is a long tradition of taking the initial step of prohibiting discrimination on the federal level by means of an Executive Order.  That is exactly what President Kennedy did when he signed Executive Order 11063 in November, 1962.

That Executive Order prohibited discrimination in federally assisted housing on the basis of race, color, creed, or national origin. As subsequently amended by Executive  Orders 12259 and 12892, discrimination in federally assisted housing is now prohibited on the basis of race, color, religion (creed), sex, disability, familial status or national origin.

President Kennedy told the news conference at which he announced his Executive Order that it was “neither proper nor equitable that Americans should be denied the benefits of housing owned by the Federal Government or financed through Federal assistance on the basis of their race, color, creed, or national orgin.”

He continued: “Our national policy is equal opportunity for all…”

Today, 46 years after President Kennedy acted, is surely is “neither proper nor equitable” for Americans to be denied this housing on the basis of sexual orientation or gender identity.

We urge President Obama to issue an Executive Order extending the principle of equal opportunity in federally assisted housing to the LBGT community; we ask other organizations to join with us in demanding this down payment on basic fairness; and we ask localities to pass resolutions of support.

Our thanks to the Housing Rights Center in Los Angeles for providing the impetus for this effort.

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Take a fresh look at the utility of a Fair Housing Restoration Act

Congress has explicitly overruled the Supreme Court’s narrow interpretations of Title VII in areas including mixed motive analysis and disparate impact. Advocates are celebrating the recent success of the ADA Restoration Act, the repudiation of the Supreme Court’s assault on people with disabilities in cases like Sutton, Murphy, and Toyota. The Fair Housing Act is under as much pressure from regressive forces as other civil rights statutes have been. How do we best respond?

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Open the courthouse door to victims of harassment

The problem is most well known from the employment discrimination context, but it has had an impact on housing rights as well.  Victims of harassment are effectively told by courts, “Go away, you have been harassed enough.”  Judicial trivializing of harassment on the employment side is detailed in Judith J. Johnson’s License to Harass Women: Requiring Hostile Environment Sexual Harassment to be “Severe or Pervasive” Discriminates Among “Terms and Conditions” of Employment, 62 Md. L. Rev., 85 (2003).

Among the judicial techniques used are requiring that conduct be severe and pervasive (instead of severe or pervasive), and including the phenomenon of courts “tolerating conduct that would be considered sexual assault or attempted sexual assault under the criminatl law” and requiring “proof that the conduct tangibly affected the plaintiff’s job performance.”  Other techniques include parsing evidence to avoid a finding of severe or pervasive; and rejecting “evidence of harassment that occurred before the employer took some remedial action even though [that action did] not stop the harassment.”  [quotations from pages 111, 115, and 131-33 of article]

If anything, the privacy of one’s home is a zone that calls even more strongly for a “zero tolerance for harassment” rule.

The solution is first to recognize how courts treat non-harassment terms and conditions cases: they disaggregate the question of liability from the question of damages.  Second, we should recognize that the “severe or pervasive” rule judicially legitimizes a very wide range of conduct — even if the political reality is such that the “lowest” level of harassment is going to be tolerated, there is still room to proscribe a substantial portion of what is now considered legal.

Draft legislative language that would make all harassment actionable except that which the covered entity proves as an affirmative defense is nothing more than petty slights or trivial annoyances can be linked to below.

The question for opponents is: “Just how much harassment do you think that tenants should be required to endure?”

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