Fair Housing Litigation Update
What does Fair Housing Prohibit?
 In the sale or rental of housing, no one may take any of
the following actions based on race, color, national
original, religion, sex, familial status or handicap:
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Refuse to rent or sell housing;
Refuse to negotiate for housing;
Make housing unavailable;
Deny a dwelling;
Set different terms;
Provide different housing services or facilities;
Falsely deny that housing is available for inspection, sale or rental;
For profit, persuade owners to sell or rent (blockbusting); or
Deny anyone access to or membership in a facility or services related
to the sale or rental of housing.
Reasonable Accommodation
 If you or someone associated with you has a
disability, a landlord may not:
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Refuse to let you make reasonable modifications to your
dwelling or common use areas if necessary for the disabled
person to use the housing; or
Refuse to make reasonable accommodations in rules, policies,
practices or services if necessary for the disabled person to use
the housing.
Reasonable Accommodation
 Who is a “person with a disability?”
 A person with a disability includes an individual (1) with a physical or
mental impairment that substantially limits one or more major life
activities; (2) who is regarded as having such impairment; and (3) with
a record of such impairment.
Reasonable Accommodation
Examples…
 Parking spaces
 Transfer requests
 Live-in aides
 Assistance with
application process
 Assistance animals in
“no pet” buildings
Reasonable Accommodation
Assistance Animals
 In 2013 HUD ordered the
Castillo Condominium
Association in Puerto Rico
to pay $20,000 in
damages plus a $16,000
civil penalty for not
allowing a resident to
keep an emotional
support animal.
 Early 2015, HUD
charged a Brooklyn
Co-Op with
discriminating against
a disabled veteran by
not allowing his
emotional support
animal.
Not just dogs…
Reasonable Accommodation
Parking Spaces
 Edward Tirrell filed a
FHA complaint against
Avatar Properties, Inc.
after being denied
access to the visitor’s
parking lot
 Litigation is ongoing
 The company’s Board
explained they had
“spent a lot of money to
update and clarify
parking,” and did “not
want to start making
changes at this point.”
 Offered no alternative
What is
Disparate
Impact ?
 Policies, practices, rules or
other systems that while
neutral on their face may
result in a disproportionate
impact on a protected class.
Disparate Impact
Twp. of Mount Holly v. Mt. Holly Gardens Citizens in
Action
 About the Case – Mount
Holly Township
declared the Gardens
blighted and began
plans for redevelopment
 New homes would cost
in excess of $200,000
Disparate Impact
Magner v. Gallagher
 About the Case –
Gallagher sued the City
of St. Paul alleging the
City’s strict enforcement
of city housing codes
against rental units
reduced the availability
of low-income rentals,
having a disparate
impact on African
Americans and violating
the Fair Housing Act.
Disparate Impact
 HUD’s Final Rule – 24 CFR Part 100
 Formalizes the availability of “discriminatory effects” liability
under the Fair Housing Act, 42 U.S.C 3601 et seq.
 Actually or predictably results in a disparate impact on a group
of persons, increases, reinforces or perpetuates segregated
housing patterns because of race, color, religion, sex, handicap,
familial status or national origin.
 Established a three-part burden-shifting test:
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Prima facie case;
Challenged practice is necessary to achieve one or more
substantial, legitimate, nondiscriminatory interests;
Substantial, legitimate, nondiscriminatory interest could be
served by a practice that has a less discriminatory effect.
Disparate Impact
American Insurance Association, et al. v. HUD, et al.
 About the Case –two industry trade associations whose members sell
homeowner’s insurance sued the Agency in response to HUD’s final
rule indicating the provision and pricing of homeowner’s insurance as
potentially having a disparate impact.
 In 2014 the Federal District Court in Washington, D.C. vacated HUD’s
new disparate impact rule
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“This is yet another example of an Administrative Agency trying
desperately to write into law that which Congress never intended to
sanction.”
Court focused on language like “refuse” and “deny” and pointed out the
lack of any language involving the results or effect of conduct.
Pointing to the ADA and the Civil Rights Act the court noted that
Congress knows how to “explicitly provide for disparate impact claims
by using clear effects-based language.”
Disparate Impact
The Inclusive Communities Project, Inc. v. Texas
Department of Housing & Community Affairs, et al.
 About the Case – Inclusive
Communities alleges the Texas
Department of Housing &
Community Affairs allocated tax
credits in a racially segregated way
by disproportionately granting
housing credits in minority areas of
Dallas and disproportionately
denying them in the affluent
suburban areas.
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Arguments –
 Texas Department of Housing &
Community Affairs – Text of FHA is
different from other statutes that
explicitly allow disparate impact
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Specifically the wording “because of
race”
The Inclusive Communities –
deference to HUD’s interpretation,
look at the goal of the FHA
Solicitor General (for HUD) –
Defendants still have protection in
the burden-shifting test because
plaintiffs must point to a “specific
practice” and at the very least, it
isn’t clear (significant weight to
HUD’s regulations)
Disparate Impact
 The Court –
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Roberts – noted difficulty differentiating “good” impacts and “bad” ones (integration v. primary
benefit)
Scalia – “whole law” and figure out “what makes sense” but also noted that racial disparity is not
the same as discrimination
Ginsburg – noted “grand goal” of FHA
Kagan – 1988 Exemptions
Sotomayor – 1988 Exemptions
Breyer – “helpful to many people” in 30 plus years, why should SCOTUS step in now
Alito – suggested HUD’s regulations were only in response to the Court agreeing to decide the
disparate impact question
 Decision –
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Expected late June or early July 2015
Affirmatively Furthering Fair Housing
 Proposed Rulemaking on Affirmatively Furthering Fair
Housing
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HUD will provide data, guidance and an assessment template from
that there would be an assessment of fair housing (the AFH) which
would then be linked to the PHA Plans and Capital Fund Plans.
Data will include information on:
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Historic patterns of segregation;
Racial and ethnic concentrations of poverty;
Access to community assets;
Exposure to environmental hazards; and
Disproportionate housing needs by protected class.
Submitted to HUD on the same schedule as the Consolidated Plan (at
least 270 days before the state of the program year – shortened to 195
for subsequent AFHs). HUD will accept or provide reasons for its
rejection within 60 days.
Findings and plans should be incorporated into the Con Plan
Resources
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http://www.justice.gov/crt/about/hce/jointstatement_ra.php
http://portal.hud.gov/hudportal/HUD?src=/press/press_releases_media_advisories/2014/HUDNo_14-142
http://portal.hud.gov/hudportal/HUD?src=/press/press_releases_media_advisories/2015/HUDNo_15-002
http://www.huduser.org/portal/affht_pt.html
http://blog.hud.gov/index.php/2015/04/21/fair-housing-month-focus-on-disability-discrimination/
http://www.justice.gov/crt/about/hce/documents/avatarcomp.pdf
https://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2013-01.pdf
http://www.scotusblog.com/2015/01/will-the-third-time-be-the-charm-for-the-fair-housing-act-and-disparate-impact-claims-in-plainenglish/