On June 25, 2015, The Supreme Court ruled that housing policies and practices with discriminatory outcomes can be challenged under the Fair Housing Act, even when there is no intent to discriminate. The key issue in the case was the validity of the cause of action known as disparate impact under the Fair Housing Act of 1968. Disparate Impact permits lawsuits to be brought against policies and practices that disproportionately affect people based on race, color, sex, religion, and national origin, even without an overt racial motive.
The case is named Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, and originated in Dallas, Texas. The facts of the case are as follows. The Defendant is a non-profit organization that promotes racial and economic diversity. Between 1995 and 2009, the Plaintiff had been allocating most of its affordable housing tax credits to housing developments in poorer, urban, minority neighborhoods, while denying credits to housing developments in wealthier, suburban, white neighborhoods. The Defendant argued that this practice was preserving racial segregation by keeping poorer minorities from moving to white suburban areas. The Defendant filed suit against Plaintiff on the grounds that their practices were racially discriminatory, even if the Plaintiff did no intend for them to be.
After the filing of the lawsuit, Plaintiff was given the opportunity to to demonstrate that it’s practice of tax credit distribution served a nondiscriminatory business interest, which it could not achieve by less discriminatory means. Plaintiff was able to prove that its practice of distributing tax credits was a legitimate one, but it could not prove that the Department was pursuing its interest in the least discriminatory manner.
The Texas Department of Housing and Community Affairs lost in both district court and at the 5th Circuit Court of Appeals, with both courts holding that proper disparate impact standard had been used. Plaintiff decided to appeal the case to the Supreme Court, and argued that disparate impact claims should not be allowed altogether under the Fair Housing Act. This contention was struck down by the nation’s highest court. Associate Justice Anthony Kennedy summed up the Court’s stance neatly by stating: “Recognition of disparate impact liability under the Fair Housing Act also plays a role in uncovering discriminatory intent: it permits plaintiffs to counteract unconscious prejudices and disguised animus that escapes easy classification as disparate treatment.”
Citizens of West Virginia should have two basic takeaways from this important ruling. First, if you are renting or trying to buy a home, be aware of how you are being treated. If you are a member of one of the protected classes under the Fair Housing Act, be cognizant of any adverse impact that any real estate agency or community board might be subjecting you to. Second, if you believe you have been discriminated against, get in touch with the West Virginia Human Rights Commission. The WVHRC is a government agency that investigates and adjudicates housing discrimination complaints, and they are your first step towards justice.
Joshua T. Thompson