Disparate-impact claims under the federal Fair Housing Act (“FHA”) are now a well-established part of housing discrimination law, having been recognized for decades by the lower courts and recently endorsed by the Supreme Court in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc. The Court in Inclusive Communities saw the impact theory as a way of bolstering the FHA’s “role in moving the Nation toward a more integrated society,” but it also set forth certain “cautionary standards” to guard against “abusive” impact claims. Under these standards, which are similar to those adopted in a 2013 HUD regulation and those long used in Title VII employment discrimination cases, a FHA-impact plaintiff must prove that a defendant’s challenged policy causes a disparate impact on a racial minority or other FHA-protected group, and then, if the defendant establishes a legitimate interest for its policy, the plaintiff may still prevail by showing that a less discriminatory alternative would serve this interest.
In the first stage, Inclusive Communities instructs courts to “examine with care” the plaintiff’s proof in order to facilitate the “prompt resolution” of FHA-impact claims before trial. But, apart from the analogy to Title VII, neither Inclusive Communities nor HUD has provided any guidance for determining what such evidence should entail. Furthermore, lower-court decisions in FHA-impact cases before Inclusive Communities rarely followed the Title VII methodology and often used inconsistent techniques in evaluating the relevant data. This Article provides the guidance needed for evaluating a plaintiff’s proof in this crucial prima-facie-case stage of a FHA-impact claim.
The Article first reviews the law governing proof in disparate-impact cases and identifies the data sets available to establish disparate impact in FHA cases. It then shows how these legal principles and available data should be used in the most frequently pursued types of FHA-impact claims, i.e., those involving a landlord’s screening devices and those challenging a municipality’s restrictions on affordable housing.
Implicit throughout the discussion are two themes: (1) that certain approaches to proving disparate impact in FHA cases are problematic; and (2) that, given the correct legal and statistical principles and the data available, certain types of housing-impact claims may be harder to prove than others. Based on these insights, the Article shows that the promise of Inclusive Communities—that FHA-based impact claims may help break down arbitrary barriers to a more integrated society—will take some serious effort to fulfill.
Schwemm, Robert G. and Bradford, Calvin, "Proving Disparate Impact in Fair Housing Cases After Inclusive Communities" (2016). Law Faculty Scholarly Articles. 594.