A case filed in U.S. District Court in Washington, D.C. will again test if the disparate impact theory of liability is cognizable under our federal Fair Housing Act (FHA).  A district court judge restated a case filed by two trade associations challenging HUD regulations issued in February 2013 specifically allowing disparate impact claims under the FHA.  Disparate impact cases are those in which a plaintiff (either the government or a private party) challenges a practice that impacts a certain minority group or groups without having to prove any intentional discrimination on the part of the defendant.  The Obama Administration believes that the claims are encompassed by current law and notes that it can be difficult to prove housing practices are based on intentional discrimination and that the disparate impact theory is needed to overcome “entrenched barriers to equal opportunity in housing.”  Groups challenging the law note that “disparate impact” does not appear in the statute and it is improper to essentially amend a statute by issuing a regulation as only Congress is empowered to amend a federal law.

Fair Housing Defense Blog readers know this is the third time the disparate impact issue has come up recently.  The prior two cases reached the U.S. Supreme Court – only to have both cases settle prior to a determination.  To be sure, even if the federal judge in Washington issues a decision (one way or the other), it will take some time before the Supreme Court is again asked to take the case.

From the perspective of a lawyer who represents apartment owners, management companies, and employees – we just want to know the rules of the game.  We will follow the law, but it is reasonable to ask just exactly what the law is.  And let’s hope the third time really is the charm when it comes to getting a determination of whether disparate impact is recognized under our FHA.

Just A Thought.