October 07 2019

Disparate Impact: A Key Tool We Must Preserve

On our bus tours of historical housing discrimination, segregation, and displacement, we introduce our work by telling riders that housing discrimination no longer looks like it did more than 51 years ago when the Fair Housing Act was passed. It is much more subtle today.

We talk about how we may no longer see signs that say “Whites Only” or “No Kids Allowed.” We know housing discrimination still exists, but intentional discrimination is even harder to identify and root out today. The disparate impact theory, upheld by the U.S. Supreme Court in in 2015, has been an important legal concept that serves as a tool for combating discrimination without having to prove discriminatory intent.

Disparate impact in civil rights law holds that a “neutral” policy or practice still could be illegal if it has an adverse negative outcome on a protected class group regardless of whether the original intent of the policy was discriminatory. Under the disparate impact standard, unequal outcomes matter – even if they aren’t intentional – and that is what makes the legal concept so important to the Fair Housing movement. Disparate impact, which was has its origins in employment law, has been a vital pathway for enforcing the Fair Housing Act. The positive ramifications include anything from potentially providing additional protections for survivors of domestic violence to possibly ensuring zoning laws in local communities are inclusive.

Last month, the Department of Housing and Urban Development (HUD) proposed a change to the disparate impact rule. Advocates in the Fair Housing movement and other civil rights fields believe the proposed changes would make it even harder to hold parties accountable for discrimination. These groups, including the National Fair Housing Alliance, of which FHCO is a member, have a website where you can help #defendcivilrights by submitting a comment in support of preserving the disparate impact standard by the October 18th deadline.

We know housing discrimination and access to equal housing opportunity continues to be a problem today – whether through intentional acts or unintentional but unequal outcomes. We must employ every tool possible to fight for the civil rights of all members of our communities. We are hopeful you will join us and our many partners in helping to preserve the disparate impact standard as one of our key tools for fighting housing discrimination and ensuring equal housing opportunity for all.