Disparate Impact and AFFH: Two Powerful Fair Housing Tools

This past summer has been a very positive one for fair housing. Two major rulings have upheld what has already been in place for decades; disparate impact and affirmatively furthering fair housing or AFFH. Although some people are reacting as if the world is coming to the end with the enactment of these two “new” pieces of “social engineering,” the reality is that they have both been in place for decades. The actions taken this summer only serve to strengthen and further legitimize them.

Disparate Impact

Disparate Impact may be defined as a legal doctrine under the Fair Housing Act which states that a policy may be considered discriminatory if it has a “disproportionately adverse impact” against any group based on protected class including race, national origin, color, religion, sex, familial status, or disability when there is no legitimate, non-discriminatory business need for the policy.

Federal courts, and specifically 11 appellate courts, have consistently upheld disparate impact as legitimate practice under the Fair Housing Act. There have been several previous attempts to bring this doctrine before the Supreme Court in order to remove it as a tool for fair housing. The latest involved a case where the nonprofit Inclusive Communities Project said that the Texas Department of Housing and Community Affairs had contributed to "segregated housing patterns by allocating too many tax credits to housing in predominantly black inner-city areas and too few in predominantly white suburban neighborhoods."

The Supreme Court, in a 5-4 ruling on June 25, 2015 endorsed the notion of citing disparate impact in housing cases. This means that the practice of using statistics and other evidence can be used to show decisions and practices have discriminatory effects without having to prove discriminatory intentions. The Court decision stated:

“Much progress remains to be made in our Nation’s continuing struggle against racial isolation…The FHA must play an important part in avoiding the Kerner Commission’s grim prophecy that ‘[o]ur Nation is moving toward two societies, one black, one white-separate and unequal.’…The Court acknowledges the Fair Housing Act’s continuing role in moving the Nation toward a more integrated society.”

The Supreme Court’s decision also upheld the US Department of Housing and Urban Development’s disparate impact rule, which was released in February 2013, establishing a framework and standard for addressing disparate impact claims.

The Supreme Court, in its decision, recognized that discrimination is not always overt and that disparate impact is an important tool to permit “plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment.” It further recognized that disparate impact is not new but a long-established protection that citizens have come to rely upon in order to access housing opportunities. The Court did not have any desire to go against the “longstanding judicial interpretation of the FHA to encompass disparate-impact claims and congressional reaffirmation of that result” stating that the disparate impact protection has been in place for over 4 decades with no “dire consequences.”

Affirmatively Furthering Fair Housing

On the heels of the Supreme Court’s Disparate Impact decision, HUD released its long awaited final AFFH rule on July 8, 2015. Like Disparate Impact, AFFH has existed for more than 40 years obligating HUD recipients to reduce barriers to fair housing. The goal of the final rule is to provide all HUD program participants with clear guidelines and data they can use to achieve those goals.

For purposes of the rule, HUD states that affirmatively furthering fair housing “means taking meaningful actions, in addition to combating discrimination, that overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity based on protected characteristics. Specifically, affirmatively furthering fair housing means taking meaningful actions that, taken together, address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, transforming racially and ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws. The duty to affirmatively further fair housing extends to all of a program participant’s activities and programs relating to housing and urban development.”

For purposes of the rule, meaningful actions “means significant actions that are designed and can be reasonably expected to achieve a material positive change that affirmatively furthers fair housing by, for example, increasing fair housing choice or decreasing disparities in access to opportunity.”

To aid communities in this work, HUD commits to providing data to grantees and the public on patterns of integration and segregation, racially and ethnically concentrated areas of poverty, disproportionate housing needs, and disparities in access to opportunity. The goal of this approach is for communities to be better able to build fair housing goals into their existing community development and comprehensive planning processes.

Key features of this final rule include:
• Clarifying existing fair housing obligations;
• Providing publicly open data on fair housing and mapping tools;
• Promoting a balanced approach to fair housing. The final rule helps to facilitate communities relying on local knowledge and decision-making to determine best strategies for meeting their fair housing obligations at the local level – including making place-based investments to revitalize distressed areas, or expanding access to quality affordable housing throughout a community;
• Expanding access to opportunity;
• Valuing local data and knowledge. Although HUD will be providing data, grantees will also be encouraged to use local data and knowledge to inform local decision-making, including information obtained through the community participation process;
• Customizing tools for local leaders. Recognizing that one size does not fit all grantees, given their differing responsibilities and geographic areas served, HUD will be providing fair housing assessment tools specific to local jurisdictions, public housing authorities (PHAs), and states and Insular Areas.;
• Encouraging collaboration. Many fair housing priorities transcend a grantee’s boundaries. Actions to advance these priorities often involve coordination by multiple jurisdictions. The final rule encourages grantees to collaborate on fair housing assessments to advance regional fair housing priorities and goals;
• Promoting more robust community participation. The rule facilitates community participation in the local process to analyze fair housing conditions and set local priorities and goals;
• Specifying a phased-in approach. The final rule provides for additional time for communities to adopt this improved process for setting local fair housing priorities than originally proposed; and,
• Providing additional time for small grantees and recent regional collaborations. Local jurisdictions receiving a CDBG grant of $500,000 or less and qualified PHAs will have more time to submit their first Assessment of Fair Housing.

FHCO and AFFH

The Fair Housing Council of Oregon provides training workshops for Planning Commissions, Elected Officials and staff and Housing/Community Development Commissions regarding jurisdictional obligations to affirmatively further fair housing. The training is generally an hour to ninety minutes and provides suggestions on how non-entitlement and entitlement jurisdictions can meet their AFFH obligations. Please contact Louise Dix, the AFFH specialist for FHCO, to schedule a training at This email address is being protected from spambots. You need JavaScript enabled to view it. or 503-223-8197 Ext. 115.