Actions under the Fair Housing Act (FHA) may be initiated by: 1.) a resident or prospective resident who files a complaint with HUD (known as an administrative complaint); 2.) a private party who brings a court action without having filed an administrative complaint, or; 3.) the Justice Department. Each of these enforcement mechanisms is separate and independent of one another, such that an owner or operator could face a claim under one or any combination of the three mechanisms for the alleged conduct. (Learn About the FHEO Complaint and Investigation Process.)

A.)  Complaints To HUD

If a complaint is filed with HUD, it must be filed within the first year after the alleged discriminatory housing practice has occurred. HUD will interview the complaining party and, if HUD determines that the allegations fall under the FHA, it will file a complaint (see next paragraph). HUD will refer the complaint to the corresponding agency if the alleged discrimination occurred within a state or locality in HUD’s Fair Housing Assistance Program. HUD can take the complaint back if the agency does not begin to work with the complaining party within 30 days.

If HUD accepts the complaint for investigation, the investigator will draft a formal complaint. Within ten days of obtaining the complaining party’s signature, HUD must send the owner or operator notice of the complaint and a copy of it. Within ten days of receiving the notice from HUD, the owner or operator must transmit to HUD an answer to the complaint. The investigator will interview the parties and relevant witnesses, collect relevant documents, and/or conduct onsite visits. HUD has the authority to take depositions, issue subpoenas and interrogatories, and compel testimony or documents. HUD must bring the parties together in an effort to reach an agreement. Any conciliation agreement is voluntary for both parties.

If the parties reach an agreement, which must also satisfy HUD, HUD will prepare an agreement for signature. After signatures are obtained, HUD will close the investigation and monitor compliance with the agreement.

If the parties do not reach an agreement and HUD has completed its investigation, HUD will issue a determination as to whether reasonable cause exists to believe discrimination occurred. HUD has 100 days to complete its investigation and determine whether reasonable cause exists.  If HUD is unable to adhere to this timeframe, it must provide the reasons for the delay in writing to the parties and the Secretary. If HUD does not find reasonable cause, it will dismiss the complaint and notify the parties of the dismissal. A complaining party may request reconsideration if HUD finds no discrimination.

If HUD finds reasonable cause, it will issue a charge of discrimination, after which both parties have 20 days to determine whether to have the case tried before a federal district court. If neither party elects to move the matter to federal court, the case is heard by a HUD Administrative Law Judge (ALJ). The ALJ must hear the case no later than 120 days after the complaint has been filed.  If the ALJ cannot adhere to this timeframe, the ALJ must provide the reasons for the departure in writing to the parties and the Secretary. At the hearing, the parties have the right to appear in person, be represented by legal counsel, present evidence, cross-examine witnesses, and discover evidence. Following the hearing, the ALJ will issue a decision. The ALJ must issue their decision within 60 days of the hearing.  If the ALJ is unable to do so within 60 days, the ALJ must provide the reasons for the departure in writing to the parties and the Secretary. If the ALJ finds a violation of the FHA, it can order (1) compensation for actual damages, including out-of-pocket expenses and emotional distress damages; (2) permanent injunctive relief, such as an order not to discriminate; (3) equitable relief, such as making housing available to the complaining party; (4) payment of reasonable attorney fees (if the complaining party hired an attorney); and (5) payment of a civil penalty to vindicate the public interest.

As of February 15, 2023, an ALJ’s authority permitted him/her to impose a maximum civil penalty of $24,793 if the not adjudged in an any administrative hearing or civil action permitted under the FHA; $61,982 if adjudged in a hearing or civil action under the FHA if one discriminatory housing practice was adjudicated during the 5-year period proceeding the date of the filing of the charge; and $123,965 if adjudged in a hearing or civil action under the FHA if two or more discriminatory housing practices were made during the 7-year period proceeding the date of the filing the charge.24 C.F.R. § 180.671

If either party elects to go to federal court, HUD must refer the case to the U.S. Department of Justice.  The Department of Justice will then file a lawsuit on behalf of the complaining party in the U.S. District Court in the district where the discrimination allegedly occurred. Either party may request a jury trial. Both parties have the right to appear in person, be represented by legal counsel, present evidence, cross-examine witnesses, and participate in discovering evidence. If discrimination is found, the judge or jury may order:

1. compensation for actual damages, including out-of-pocket expenses and emotional distress damages;
2. permanent injunctive relief, such as an order not to discriminate;
3. equitable relief, such as making housing available to the complaining party;
4. payment of reasonable attorney fees (if the complaining party hired an attorney), and/or;
5. payment of punitive damages.
    

ALJ decisions are subject to review by the Secretary of HUD and ultimately by the courts.

It should be noted that two types of complaints to HUD are provided special treatment. First, if HUD determines that a particular case requires prompt judicial action, HUD may refer that case to the Justice Department, which is then required to file a lawsuit seeking appropriate temporary or preliminary relief. Second, all complaints involving challenges to zoning and other land-use laws must be referred to the Justice Department for prosecution.

If the complaint is referred to a local or state agency, the process thereafter undertaken largely mirrors the HUD review process, as outlined above in the text.  The Indiana Civil Rights Commission is certified as an enforcement agency, and many local human rights commissions in Indiana have become involved in processing claims of FHA violations.

B.)  Private Actions

A complaining party may bring a private lawsuit for a discriminatory housing practice or breach of a conciliation agreement in federal or state court without first processing a complaint through HUD. The plaintiff must file his/her action within two years of the most recent date of alleged discrimination. If the plaintiff has already filed a complaint with HUD, the time during which HUD was processing the complaint is not counted in the two-year filing period. The relief available in a private action includes actual and punitive damages, appropriate injunctive relief, and attorney fees.

Moreover, a private action is independent of but may relate to the FHA’s third enforcement mechanism, which authorizes the Justice Department to sue in “pattern or practice” or “general public importance” cases. A complaining party in a private action may allege either individual or “pattern or practice” violations, regardless of the fact that the Justice Department also is authorized to sue in “pattern or practice.”

An aggrieved person may file both a HUD complaint and a private suit. However, two limitations on this right to initiate dual complaints exist. First, if the HUD proceeding resulted in a conciliation agreement, the aggrieved party may not bring a private action with respect to the same discriminatory housing practice, except to enforce the terms of the agreement. Second, if the HUD proceeding reached the hearing stage, a private action may not be brought. Similarly, only one adjudication is allowed even if a private action has been properly filed along with a HUD complaint. Under this scenario, the two proceedings will be conducted simultaneously, but only for a period of time. If the trial of the civil action begins, the HUD proceeding must be discontinued. However, if the HUD proceeding results in a final judgment, that judgment will preclude further judicial action.

C.)  Department of Justice Actions

In addition to a complaining party filing a complaint with HUD and/or a private lawsuit, the U.S. Attorney General may initiate a civil action to enforce the FHA. The Justice Department may act in three distinct situations. First, the Attorney General may sue in “pattern or practice” and “general public importance” cases. Second, the Attorney General may bring a civil action based on a referral from HUD in two types of HUD complaint cases: cases involving challenges to zoning and other land-use ordinances referred to the Justice Department by HUD, and conciliated cases when HUD believes that the housing provider has breached the conciliation agreement. Third, the Attorney General may bring an action to enforce a subpoena issued in a HUD administrative proceeding.

The Department of Justice may seek monetary damages for an aggrieved person and civil penalties against owners and operators. When the Department of Justice initiates an action based on a pattern or practice of housing discrimination or action involving the legality of a state or local zoning law or other land use ordinance, it may seek up to $75,000 in civil penalties for a first violation and up to $150,000 for subsequent violations (as of 2019). (Civil Monetary Penalties Inflation Adjustment – Civil Rights Division.) The Department also may seek equitable relief in pattern or practice, general public importance, and HUD-referred cases. In the context of private lawsuits, the Justice Department may intervene and seek appropriate relief if the Attorney General certifies that the case is “of general public importance.” However, the failure of the U.S. government to intervene in a private suit will not preclude the government from bringing its own action against the same owner or operator at a later date.