The U.S. Supreme Court recently issued a landmark decision in a case addressing the liability of housing providers under the Fair Housing Act (FHA). The FHA prohibits discriminatory housing decisions based on race, color, national origin, religion, sex, disability or family status. Combined with some news out of the U.S. Department of Housing and Urban Development (HUD), the Court's ruling puts real estate owners, developers and property management companies at greater risk of litigation over housing discrimination.

The Supreme Court Case

The case involved low-income housing tax credits distributed by a Texas governmental agency. A not-for-profit organization that assists low-income families in obtaining affordable housing sued the agency for "disparate impact" discrimination under the FHA. The not-for-profit alleged that the agency had caused continued segregated housing patterns by allocating too many tax credits to housing in predominantly black, inner-city areas and too few in predominantly white, suburban neighborhoods.

Disparate impact discrimination claims do not require intentional discrimination by the accused. Instead, they assert that facially neutral policies and practices have a disproportionate adverse effect on protected classes.

The major question for the Court was whether the FHA allowed disparate impact claims, or only disparate treatment claims based on allegations of intentional discrimination. HUD has issued a regulation interpreting the FHA to encompass disparate impact liability, and the Supreme Court agreed. It found that recognition of disparate impact claims under the FHA plays an important role in uncovering discriminatory intent by permitting claimants to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment.

The Court imposed some limits on the liability, however, including giving defendants leeway to state and explain the valid business interest their policies serve. Further, a disparate impact claim that relies on a statistical disparity will fail if the claimant cannot point to a policy or policies causing that disparity. And before rejecting a business justification for a policy, a court must find that the claimant has shown an available alternative practice that has less disparate impact and serves the defendant's legitimate needs. "Policies," the Court said, "aren't unlawful unless they are artificial, arbitrary and unnecessary barriers."

HUD's Announcement

About a month after the Supreme Court ruling came down, HUD announced that it was making almost $40 million available to fight housing discrimination as part of its Fair Housing Initiatives Program. Grants will be made to support organizations interested in the enforcement of fair housing laws and policies and educating the public, housing providers and local governments about their rights and responsibilities under the FHA.

Notably, about $30 million will be awarded to help local not-for-profit fair housing organizations carry out testing and enforcement activities to prevent or eliminate discriminatory housing practices. Plus, grants of up to $500,000 will be available to help organizations develop and support a national/regional testing program to help identify discrimination in rental and sales transactions.

Be Prepared

These developments are likely to lead to a jump in disparate impact discrimination claims by individuals, class action lawsuits and governmental enforcement actions. Now is the time to review your policies for potential discriminatory impact and see that your employees know how to avoid FHA violations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.