Two types of discriminatory-effect claims have been recognized under the federal Fair Housing Act (FHA): (1) disparate impact; and (2) segregative effect. Neither requires a showing of illegal intent, and both, according to a 2013 regulation promulgated by the U.S. Department of Housing and Urban Development (HUD), are subject to the same three-step burden-shifting proof scheme, which assigns the plaintiff the initial burden of proving that the defendant’s challenged practice causes a discriminatory effect. Both the disparate-impact and segregative-effect theories date back to appellate decisions from the 1970s, although the Supreme Court’s endorsement of the former in 2015 in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc. means that disparate impact has received more attention lately.

Last year, in an article co-authored with Calvin Bradford, I addressed disparate-impact claims. This Article examines the FHA’s segregative-effect theory, which is far more elusive, in part because it, unlike the disparate-impact theory, has no clear analog in Title VII claims challenging employment discrimination. The goal of this Article is to provide guidance for evaluating segregative-effect claims, particularly in the crucial first step or “prima facie case” stage.

Part I of this Article reviews the law governing segregative-effect claims as set forth in HUD’s 2013 regulation—and in cases decided both before and after that regulation—noting how the elements of such a claim differ from that of disparate-impact claims. Part II explores situations in which the segregative-effect theory may make a unique contribution, apart from impact claims, in the FHA’s coverage. These include the classic example—exclusionary zoning, which Inclusive Communities labeled “heartland” cases—and other likely scenarios, including those based on prohibited forms of discrimination other than race and national origin. The Article concludes that the segregative-effect theory holds great promise for advancing the FHA’s goal of reducing arbitrary barriers to minorities’ housing choices, but it needs more refinement before that promise can be fulfilled.

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Notes/Citation Information

Robert G. Schwemm, Segregative-Effect Claims Under the Fair Housing Act, 20 N.Y.U. J. Legis. & Pub. Pol'y 709 (2017).

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