Legal Analysts

Showing posts with label disparate impact. Show all posts
Showing posts with label disparate impact. Show all posts

Monday, April 03, 2023

Disparate Impact Discrimination Rule Adopted by HUD for Housing Discrimination

Unintentional discrimination is still discrimination and can result in serious penalties in a lawsuit so long as the effects of actions cause a discriminatory result. 

In the sale, rental, or financing of dwellings and in other housing-related activities, HUD has clarified, by 24 CFR 100, its Rule to evaluate a case, which is effective on May 1, 2023. 

The Rule sets forth how our government analyzes a Title VIII Fair Housing Act case and looks back to reinstate HUD's 2013 rule, titled "Implementation of the Fair Housing Act's Discriminatory Effects Standard." Under the rule, discrimination occurs through "facially neutral practices with an unjustified discriminatory effect." To understand whether there is an unjustified discriminatory effect, the Rule requires "a burden-shifting test," as follows:
  1. The plaintiff or charging party is first required to prove as part of the prima facie showing that a challenged practice caused or predictably will cause a discriminatory effect;
  2. if the plaintiff or charging party makes this prima facie showing, the defendant or respondent must then prove that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the defendant or respondent; and 
  3. if the defendant or respondent meets its burden at step two, the plaintiff or charging party may still prevail by proving that the substantial, legitimate, nondiscriminatory interests supporting the challenged practice could be served by another practice that has a less discriminatory effect.

As a result, defendants now have much greater exposure to liability than they had under the 2020 Rule, which has been revoked by this new Final Rule even though it was never enforced or went into effect during the Trump era. 

Thursday, September 16, 2021

Are Minimum Income-to-Rent Policies Discriminatory?

Landlords and brokers should pay close attention to Long Island Housing Servs. Inc. v. NPS Holiday Square LLC in the Eastern District of New York

This case addressed whether minimum income requirements for rentals are discriminatory. 

What do you think?

Should a landlord be able to screen tenants based on their income?

The landlords in this case utilize "a two-to-one income requirement, which generally requires applicants without housing vouchers to have an income double the monthly rent." If they have vouchers, the vouchers are credited "as one month's rent and [the] applicants [] have [to have] an income equal to between 80 percent and 100 percent of one month's rent." 

To be discriminatory, this policy would have to have "'a significantly adverse or disproportionate impact' on housing voucher users." 

Currently the plaintiffs and defendants are battling over experts, but this case is going to teach landlords, brokers, property managers, and the like how to frame their policies moving forward. 

So, keep a close eye on this one. 

Tuesday, January 26, 2021

New Rules Coming on Housing Discrimination - Disparate Impact Discrimination is Changing Again

In housing discrimination, you can't treat people differently in the terms, conditions, privileges, and/or availability of housing. 

Yet, you aren't just responsible for your intended acts of discrimination, known as disparate treatment discrimination. Instead, you are also responsible for your unintended acts that impact groups of people as a secondary effect, which is known as disparate impact discrimination.

Think about it this way, if you don't rent to women, as a policy, that is clearly an act of disparate treatment sex discrimination. However, if you don't rent to long-haired people, aren't you still impacting women in sex discrimination under a different name? That is called disparate impact discrimination.

As to disparate impact discrimination, President Biden just ordered HUD to make sure that the regulations on disparate impact discrimination is preventing practices with an unjustified discriminatory effect. 

Do you think that there should be disparate impact discrimination laws? If so, what do you think they should be? 

Monday, November 02, 2020

New Discrimination Standard Under the Fair Housing Act is Effective

Effective October 26, 2020, HUD implemented a new disparate impact fair housing standard.


Disparate impact discrimination occurs when housing practices have an unjustified discriminatory effect even though they were not motivated by a discriminatory intent. 

The new standard exists at 24 CFR 100.500 and it makes a claim of disparate impact discrimination far harder to bring and even harder to prove as compared to the prior HUD standard.

Previously, the regulation did not contain an express pleading standard and instead, only required the plaintiff to prove "that a challenged practice caused or predictably will cause a discriminatory effect." 

Now a plaintiff must "sufficiently plead facts to support each of the following elements: (1) That the challenged policy or practice is arbitrary, artificial, and unnecessary to achieve a valid interest or legitimate objective such as a practical business, profit, policy consideration, or requirement of law; (2) That the challenged policy or practice has a disproportionately adverse effect on members of a protected class; (3) That there is a robust causal link between the challenged policy or practice and the adverse effect on members of a protected class, meaning that the specific policy or practice is the direct cause of the discriminatory effect; (4) That the alleged disparity caused by the policy or practice is significant; and (5) That there is a direct relation between the injury asserted and the injurious conduct alleged."

With respect to the 3rd element, that is a very heavy burden for a plaintiff to satisfy at the pleading stage of litigation because the requisite evidence is often unavailable until the parties have engaged in the discovery process. 

Moreover, while the prior regulation provided that a defendant would then have to rebut the claim by "proving that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests[,]" a defendant now can just rebut the first element "by producing evidence showing that the challenged policy or practice advances a valid interest (or interests) and is therefore not arbitrary, artificial, and unnecessary." Changing the term from a "substantial" interest to "a valid interest" results in the defendant's burden seemingly being far lower.


Moreover, under the new standard, once the defendant rebuts the first element, "the plaintiff must prove by the preponderance of the evidence either that the interest (or interests) advanced by the defendant are not valid or that a less discriminatory policy or practice exists that would serve the defendant’s identified interest (or interests) in an equally effective manner without imposing materially greater costs on, or creating other material burdens for, the defendant." Previously, this was the defendant's burden. 

Regardless, there are now also 3 express defenses available, including that "(i) The policy or practice is intended to predict an occurrence of an outcome, the prediction represents a valid interest, and the outcome predicted by the policy or practice does not or would not have a disparate impact on protected classes compared to similarly situated individuals not part of the protected class, with respect to the allegations under paragraph (b). This is not an adequate defense, however, if the plaintiff demonstrates that an alternative, less discriminatory policy or practice would result in the same outcome of the policy or practice, without imposing materially greater costs on, or creating other material burdens for the defendant. (ii) The plaintiff has failed to establish that a policy or practice has a discriminatory effect under paragraph (c) of this section. (iii) The defendant’s policy or practice is reasonably necessary to comply with a third party requirement, such as a: (A) Federal, state, or local law; (B) Binding or controlling court, arbitral, administrative order or opinion; or (C) Binding or controlling regulatory, administrative, or government guidance or requirement."

Housing participants should be particularly interested in the third available defense in the form of a controlling administrative opinion or binding regulatory guidance. It is strenuously suggested that every housing industry participant seeks such opinion or guidance as a necessary incident of any business plan covering a new product or service. To fail to do so is just reckless in a world where such a defense exists. 

That being said, it is noted that this regulation only pertains to a federal housing discrimination claim and states and locales may offer increased protections to their citizens. So, these other laws must also be analyzed for housing participants to the extent that they afford disparate impact claims (e.g., NYC Admin. Code).