The federal fair housing laws became effective in 1968. Since then, courts have often awarded damages to victims of housing discrimination, but their decisions have provided little guidance for assessing the amount of such awards. There is a great range of awards, with some courts awarding only nominal damages of $1 and others setting awards of over $20,000. Compounding the problem is the difficulty of measuring the principal element of damages claimed by most plaintiffs in fair housing cases, noneconomic emotional harm or other forms of intangible injury.
Rarely is the basis for the amount of the court's award satisfactorily explained in the opinion. Moreover, the amount awarded often bears little relationship to any evidence of actual injury to a particular plaintiff in a given case. In one recent decision, for example, the court set its award not by reference to the facts of the case before it, but by noting the range of a number of other fair housing awards and awarding an amount somewhere in the middle. Of course, when the case is decided by a jury, the jury is not required to make findings or to explain its verdict. This uncertain situation has created a substantial problem for courts, for litigants, and for the proper enforcement of the federal fair housing laws, particularly as higher awards have been made in recent years. The problem of evaluating intangible injuries has also become important in other civil rights contexts, such as suits for employment discrimination and actions based on constitutional violations by governmental officials. The solutions suggested in the fair housing field may well have an influence on the judicial response to damage claims in these other types of cases.
This Article is an effort to address this problem and to determine if some systematic basis for evaluating compensatory awards in fair housing cases is possible. The legal basis for compensatory damage awards in housing discrimination cases is reviewed in Part I. That Part analyzes the provisions of federal fair housing laws and the construction of those provisions by the courts, as well as the legal arguments for application of the doctrine of presumed damages to housing cases. Part II surveys those factors which appear to have some influence on the amount of damages awarded. Based on a review of forty-six federal housing discrimination cases, that Part examines the relationship between the size of the award and such factors as the type of housing involved, the family and employment status of the plaintiff, and the wealth of the defendant. This analysis does not lead to a set formula that can predict award amounts, but it does suggest some elements that should be considered in determining the size of a fair housing award, and it gives some sense of what the approximate value of a given case might be.
Robert G. Schwemm, Compensatory Damages in Federal Fair Housing Cases, 16 Harv. C. R.-C. L. L. Rev. 83 (1981).