A Fair Housing Defense blog reader asked me to further explain the housing discrimination question that was argued before the U.S. Supreme Court back in January.  Let me see if I can do it without using too much (if any) legalese.  The federal Fair Housing Act (FHA) states it is against the law to discriminate against individuals based on their membership in one (or more) of seven different classifications:  race, color, national origin, religion, gender, disability, or familial status.  The claim in most cases is that a landlord refused to rent (or charged higher rent or failed to accommodate someone with a disability) because the individual is a member of one of the protected classes.  To phrase it another way, the landlord specifically acted against the individual because he or she fit into one (or more) of those categories and the landlord did not want to deal with that person.

In addition to this type of direct discrimination, the bulk of the case law from the last 40 years has also concluded that policies (even those that appear neutral as written) having a “disparate” (read –negative) impact on members of a protected class are also actionable under the FHA.   The words “disparate impact,” however, are not contained in the FHA.  And that is the legal issue which came to the Supreme Court.

Over the past several years, a certain group of Supreme Court justices have criticized efforts to read more into federal statues than the actual words convey.  They invalidated a portion of a law a while back and had previously accepted two cases concerning the FHA “disparate impact” question.  Those two cases, however, settled prior to the Supreme Court hearing oral argument.  As such, the cases were dropped from the docket and the Court did not issue any guidance on this issue.  In an effort to support the “disparate impact” theory, the Administration published new federal regulations in 2013 which attempted to confirm that “disparate impact” claims are indeed a long-standing and important component of the law.  And it noted decades of federal court cases approving of the “disparate impact” theory in housing cases.  Those challenging the law, however,  saw only a transparent effort to prop up a reading of the FHA that does not contain the very words at issue.  The challengers also complain that the Administration was involved in settling the two prior FHA cases that had been pending before the Court in an effort to prevent the justices from deciding (read — overturning) the point of law.

I expect the Supreme Court will issue a decision in the FHA case at some point before the end of June.  I have a prediction as well as a tally of the vote by the justices in an envelope in my desk.  I will report back.

Make sense?  Just A Thought.