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Try to imagine going into an apartment complex rental office and getting the nagging suspicion that you're being discriminated against by the person behind the desk. Short of that person telling you flat out that they don't like the color of your skin, your disability, your sexual orientation, the fact that you have children, or the cut of your jib, how hard would it be to prove that you'd been subject to willful bias instead of the victim of just another clerk having a bad day?
A private organization is at work in Central Arkansas doing housing discrimination testing to try and prove what would normally seem like the unprovable: patterns of ongoing rental discrimination that can be so subtle that most renters might miss them. They've already made complaints against two apartment owners — one on an allegation of discrimination against Latinos, another for allegedly discriminating against the deaf or hard of hearing — and say there are more in the works.
Morgan Williams is with the National Fair Housing Alliance, a private non-profit that does housing and mortgage-lending discrimination testing all over the country. Williams said that the NFHA decided to do discrimination testing in Little Rock because it's one of the major metropolitan areas in the U.S. that has no full-service private fair housing organization. The investigation in Little Rock is being funded by a three-year private enforcement initiative grant from the U.S. Department of Housing and Urban Development. The grant, funded February 2012 through January 2015, allows the NFHA to do housing and bank-lending bias investigations in Greater Little Rock, Charleston, S.C., and three other cities across the United States.
Williams said that at the start of the process, NFHA reached out to Central Arkansas nonprofits, faith-based groups and educational institutions to confer with them about alleged housing and banking discrimination in the Little Rock area. They also recruited testers from those groups. The discussions led to the development of a series of ongoing investigations in the Little Rock area, as well as attempts to identify apartment complexes that may violate the disabled-access requirements of the Fair Housing Act.
"Generally speaking, our investigations in Little Rock have identified national origin, disability, familial status and sex-based discrimination that appears to violate the Fair Housing Act," Williams said. "We are also aware of anecdotal evidence about racial discrimination." Other NFHA investigations of alleged discrimination on the basis of national origin, disability, and race are ongoing in the area, Williams said.
To date, NFHA has filed two complaints with HUD and the Arkansas Fair Housing Commission against apartment complex owners in Little Rock and North Little Rock. The first, filed in October 2013, alleges discrimination against Latinos by the Waterford Apartments on Green Mountain Drive in Little Rock. The second, filed in January of this year, alleges discrimination on the basis of testers being deaf or hard-of-hearing at Lakewood Hills Apartment Homes on McCain Boulevard in North Little Rock. Both of those investigations were conducted by phone, with the NFHA having testers call in over the course of several months to try and receive a rental application or to inquire about specials or apartment availability.
"In the case of the Waterford," Williams said, "it was a pattern in which the Latino tester was not getting a returned phone call or not getting an application. If you're a renter in Little Rock, and you're Latino, you don't know. You don't know if that's just bad service, or if it's an instance of discrimination. What the testing bears out is that time and time again, the Latino didn't get the application, and the white [tester] got the application immediately after calling."
In the case at Lakewood Hills, the NFHA complaint alleges, deaf testers who called in with the help of a device that converts typed words into speech were quoted higher rental rates than hearing testers for the same apartments, with rental agents allegedly neglecting to tell deaf testers about specials that had been offered to hearing testers. Williams said that such treatment sets up a situation where a person without a disability is able to get housing at a lower price.
"The differential treatment that we uncover is pretty subtle," Williams said. "It's often described as 'revolving door' discrimination, or 'discrimination with a smile.' Testers aren't really aware of how they were treated differently. They don't know if they experience discrimination, because they may have received some [rental] information, or enough that they think they have a fair shot at that housing opportunity."
The Lakewood Hills case was referred to HUD as part of an investigation that identified alleged discrimination against the deaf and hard of hearing renters in six states. The allegations of Latino rental discrimination are being investigated by the Arkansas Fair Housing Commission.
Carol Johnson, director of the AFHC, said that the investigation into the complaint against the Waterford Apartments is in its final stages and should be completed "within the next week or so." While Johnson said she can't talk about on ongoing investigation, she said that the complaint alleges "linguistic profiling," in which testers who speak with an accent or who have Latino surnames are given different treatment.
Speaking generally, Johnson said that rental agencies that are found to have engaged in discriminatory behavior can be subject to a number of penalties, including having to pay compensatory damages, and punitive damages if the complainant takes the case to court. Fines levied can be up to $11,000 per instance for a first offense, $27,500 for a second offense, and $55,000 for any further offenses. The AFHC refers complaints to the Arkansas Attorney General's Office if the allegations are found to be valid.
Johnson said that with the influx of Latinos into Arkansas over the past few years, they've seen an increase in the number of complaints filed by Latinos alleging housing discrimination, but not as many as she would expect. She said that one issue is that the Latino population is historically reluctant to file complaints with state or government agencies. If not for the NFHA investigation using Latino testers, she said, the agency would have likely never gotten a case like that.
Last year, Johnson said, the AFHC received over 360 housing discrimination complaints, and closed around 200 cases. Most of the complaints, Johnson said, were eventually dismissed because the evidence wasn't strong enough.
"Discrimination is very hard to prove," Johnson said. "Discrimination is not as blatant as it used to be. A lot of times, you might have a landlord who'd say: 'I'm just not going to rent to [people with] children, or 'I'm not going to rent to African Americans, or I'm not going to do this or that. Now, you don't see that as much. ... So when we're looking at whether someone meant to discriminate, what we look at is not whether they're racist. We look at whether they meant to do whatever it is they did. There's a fine line there."
Daniel Oberste is executive vice president of investments and general counsel with BSR Trust, the owner of Bailey Properties, which owns the Waterford Apartments. Oberste referred all specific questions about the complaint to the attorney for BSR Trust, who didn't return a call at press time.
Oberste said employees at Waterford and other properties owned by Bailey Properties undergo training on fair housing issues when they are hired, and then do annual training on the issue as well. He said it was frustrating to have the complex singled out as discriminatory.
"When you read the [NFHA] press release, it's more than an indictment," he said. "It's kind of like 'National Fair Housing Alliance Catches Bailey Properties Being Discriminatory.' ... They're doing a great job investigating, but they kind of start from a 'guilty until proven innocent' mentality."
Asked if the complaint will change the way Bailey Properties trains its employees, Obserste said that if the Arkansas Fair Housing Commission investigation into the complaint identifies a problem, the firm will work to fix it. "Our company has been around for several decades, and we've tended to pride ourselves on our continuous training and how we keep up with best practices in the industry," he said. "I don't think it's 'if we're in violation.' I think it's 'if we aren't meeting or exceeding expectations, beyond just complying with the law.' If we aren't beating our competitors as far as compliance or doing the right thing all the time, then yeah, we want to train and get our people the best information."