Standing And Fair Housing Testers

As has been written in this space more than once, our Fair Housing Act (FHA) prohibits a variety of discriminatory conduct concerning the sale, rental or financing of residential housing. While lawsuits often are brought by individuals who have directly suffered from housing discrimination, it is also common for cases to be filed by what are known as “testers” or by the organizations that employ such testers. What is a tester and how is it that they have standing to bring suit under the FHA? And why is the use of tester evidence potentially problematic?

The issue of “tester standing” was first addressed by the Supreme Court in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1981). The Supreme Court defined testers as “individuals who, without an intent to rent or purchase a home or apartment, pose as renters or purchasers for the purpose of collecting evidence of unlawful steering practices.” While some would argue that any evidence presented by someone who admits he