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<\/a>What is disparate impact?<\/h2>\n
Disparate impact, otherwise known as adverse impact, refers to a policy or practice that seems neutral on the surface but in practice has a disproportionately negative effect on a certain group of people. It\u2019s tied to discriminatory practices that may hinder equal access.<\/p>\n
Disparate impact is usually unintentional in nature; disparate treatment is the term for outright and willful discrimination<\/a>. Even though it might be accidental on the part of the offender, it\u2019s nonetheless considered a violation of the Civil Rights Act and is therefore subject to legal intervention.<\/p>\n In the United States, when you hear someone talking about disparate impact, they\u2019re usually referring to employment \u2014 or, more recently, housing \u2014 practices that adversely affect one group of people more than another<\/a>. This practice is subtle, because it can emerge in the form of a requirement that applies to everyone equally, but which only harms or limits certain groups of people.<\/p>\n Proving that disparate impact exists and making a legal claim usually involves statistical data, at least in part. For example, if a plaintiff can show statistically that a certain employment requirement caused hiring managers to prefer male job applicants to female job applicants, there may be a case for disparate impact.<\/p>\n However, statistics are not the only thing courts consider when evaluating claims. If an entity can prove that there is a business necessity for a job\u2019s seemingly discriminatory qualifications, disparate impact can be considered legal. For example, let\u2019s say a waste management company might require applicants to perform strength tests for a position that requires lifting heavy trash cans. This type of test may end up having a disparate impact that adversely affects women, but the company would likely be able to claim \u201cbusiness necessity\u201d and keep the strength test requirement.<\/p>\n Disparate impact has developed more of a track record in employment situations, but housing practices have come under scrutiny for disparate impact in recent years as well.<\/p>\n Some examples of disparate impact in the housing market could include:<\/p>\n Thanks to rule changes enacted by HUD over the years, some of these examples have been dealt with on an official level, which sets a precedent for future disputes. Disparate impact in the housing sector has been dealt with to a certain degree, but there\u2019s still progress to be made.<\/p>\n Title VIII of the Civil Rights Act of 1968, also known as the Fair Housing Act (FHA)<\/a>, prohibits discrimination in the housing sector (rentals, home sales, and financing) on the basis of race, color, religion, sex, familial status, national origin, and disability. The Fair Housing Act<\/a> followed \u00a0 and further specified the more general Civil Rights Act of 1964 and was signed into law in the immediate wake of Dr. Martin Luther King Jr.\u2019s assassination. The Fair Housing Act now forms the basis of nearly all housing-related discrimination cases.<\/p>\n In a memorandum dated February 9, 2011<\/a>, the Department of Housing and Urban Development (HUD) sought to rectify disparate impact being experienced by victims of domestic violence.<\/p>\n HUD found that domestic violence survivors were being evicted and\/or denied access to housing based on zero-tolerance violence policies, without taking into account the victimization of abuse. Twenty-five percent of women experience domestic assault, and Black, Native American, and immigrant women suffer domestic violence at a disproportionately high rate. Therefore, zero-tolerance violence policies had a disparate impact on those groups.<\/p>\n In a proposed rule initiated in November of 2011<\/a>, HUD drew a direct connection between disparate impact and the Fair Housing Act, saying that the Fair Housing Act prohibited discriminatory housing practices with or without intent. In an effort to establish consistency in legal application, HUD proposed a \u201cshifting\u201d standard regarding the burden of proof, which fell first to the plaintiff, then to the defendant, then back to the plaintiff. (A little more on what that means below.)<\/p>\n Following the proposal, HUD released an official rule<\/a> as a guideline for practices that had a discriminatory effect but were not intended to be discriminatory \u2014\u00a0 disparate impact.<\/p>\n The rule stated that HUD or a private party could bring disparate impact cases to court, where they would then attempt to prove that the practice in question was effectively discriminatory, many times through statistical analysis. They did not have to prove that the discrimination was intentional, simply that it was taking place.<\/p>\n The defendant had the opportunity to then prove that such a practice was necessary to create a \u201csubstantial and legitimate interest\u201d (basically, the practice was needed for some legitimate business purpose).<\/p>\n At that time, the burden then fell to the plaintiff to prove that there was an alternative, less-discriminatory means to the same ends.<\/p>\n In 2015, the Supreme Court set a new legal precedent, which mostly agreed with the previous HUD rule.<\/p>\n In Texas Department of\u00a0 Housing and Community Affairs v. Inclusive Communities Project<\/i><\/a>, <\/i>the Court ruled that the intent of the Fair Housing Act included disparate impact.<\/p>\n Basically, Texas argued that disparate impact cases were discriminatory against white residents under the Equal Protection Clause. But the Supreme Court ruled against Texas and upheld that disparate impact was clearly identifiable within the scope of the Fair Housing Act.<\/p>\n However, during this trial, the Supreme Court deviated from HUD\u2019s 2013 rule to diminish the likelihood of \u201cabusive disparate impact claims.\u201d<\/p>\n New standards, including a \u201crobust causality\u201d burden, protected defendants against potentially arbitrary claims. Instead of relying on statistical data, plaintiffs were expected to prove that the defendant\u2019s policy directly caused<\/i> a disparity.<\/p>\n In what seemed to be an effort to clarify how disparate impact cases were brought to court, HUD issued proposed guidelines<\/a> that would change the burden of proof in disparate impact cases to more closely align with the Supreme Court ruling of 2015.<\/p>\n The proposed rule would force the plaintiff to anticipate the defendant\u2019s case and preemptively fight against it. The plaintiff would also need to show that a different, non-discriminating policy would be just as profitable for the defendant.<\/p>\n The guidelines also provided protections for businesses that used algorithms to make decisions that had discriminatory effects, and also disincentivized businesses from collecting data that could ultimately prove discrimination.<\/p>\n This proposed regulation was considered a blow for equal rights<\/a>, as it would make disparate impact cases more difficult to bring to court.<\/p>\n The finalized HUD rule<\/a> just recently took effect in October of 2020. With little deviation from the 2019 proposal, this new rule adds a layer of complexity to the burden of proof required of the plaintiff in disparate impact cases.<\/p>\n Under this new rule, plaintiffs are required to show significant evidence in order for their claim to be sustained. The evidence includes proof that the policy in question is both arbitrary and unnecessary for doing business.<\/p>\n In addition to the previous (2013) standard that a disparity exists and is statistically significant, the new rule also requires proof that the discrimination was both directly connected to and directly caused by the policy in question.<\/p>\n The National Low Income Housing Coalition<\/a> (NLIHC) recognizes several problems with this new rule, stating that a \u201cpreponderance\u201d of evidence requires unnecessary guesswork on the part of the plaintiff and that language surrounding alternative policies proposed by the plaintiff seems to prioritize the defendant\u2019s profits over eliminating discrimination.<\/p>\n Though this newest HUD rule makes it difficult to bring a disparate impact case to court, equality in housing is never a lost cause.<\/p>\n If you experience disparate impact in the housing sector, your first step could be to file a complaint with HUD<\/a>, either by phone, mail, or online form.<\/p>\n This complaint could cover claims felt during the practice of:<\/p>\n And disparate impact might be caused by a:<\/p>\n If you need legal assistance to determine whether your disparate impact case can be brought to trial, consider contacting your local (statewide) housing coalition or housing advocacy group, which should be able to connect you with legal counsel. These groups may also sometimes file class-action suits on behalf of a group of people who have experienced disparate impact.<\/p>\nWhat are some original examples of disparate impact in housing?<\/h2>\n
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<\/a>What\u2019s the legal history of disparate impact in housing?<\/h2>\n
1968: Fair Housing Act (Title VIII of the Civil Rights Act)<\/h4>\n
2011: HUD acknowledges disparate impact in domestic violence<\/h4>\n
2011: HUD proposes a rule in regards to disparate impact under the FHA<\/h4>\n
2013: Final HUD rule released<\/h4>\n
2015: Supreme Court ruling regarding disparate impact<\/h4>\n
2019: HUD issues proposed regulation shifting the burden of proof<\/h4>\n
2020: New HUD rule is enacted<\/h4>\n
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<\/a>How can you report a claim for disparate impact in housing?<\/h2>\n
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