Guess I need to add “disparate impact” to the list of topics that interest Fair Housing Defense blog readers. My last post dealing with a vote by the U.S. House of Representatives to limit the way “disparate impact” is used in various case and investigations generated quite a response. First, a housekeeping note. A couple of readers noted I made an identification error concerning which side of a discrimination case uses disparate impact. Let me clear that up: Various plaintiffs (and/or HUD or the Department of Justice) may attempt to use statistical data to show that a decision by a defendant (owner of housing and/or a professional apartment management company) has a “disparate impact” on a protected class and, as such, violates the Fair Housing Act (FHA). Defendants (owners and/or managers) will contend that the FHA requires intentional conduct by someone to discriminate and that an otherwise benign policy should not impose liability. Hope that clears it up.
Another reader thought I was unclear concerning the vote in the House. Earlier this month the House voted 231-195 to include the language which would prevent “disparate impact” from being used. Then, just last week, the House voted 216-210 to adopt the Transportation, Housing and Urban Development and Related Agencies Appropriations Act for Fiscal Year 2016 (H.R. 2577), which contained essentially the same amendment. Generally, the Republicans are voting to essentially remove “disparate impact” from the law while generally the Democrats are voting to keep “disparate impact” in the FHA. Now, the U.S. Senate will need to speak on the topic as well. And it is likely that a House-Senate conference committee could well get involved. As such, it is fair to report we have a ways to go before knowing what the final legislation will look like.
Your humble editor appreciates that you read this space and care enough to work with me to get it right.
Now, I also got a few responses concerning the merits of “disparate impact.” It is clear that this issue has struck a responsive chord. Trust me, I heard from both sides. Some readers view the efforts to strip “disparate impact” from our laws as an assault on the civil rights legislation that was passed over 40 years ago. Others view it as textbook governmental overreaching in that the language is not in the law and, as such, should not be permitted unless and until Congress changes the statute. Some of the comments (on both sides of the issue) were appropriately written and reflected respect for the opposing view. Others, less so.
To be sure, the U.S. Supreme Court will weigh in on “disparate impact” and our FHA, likely before the end of the month when it issues a decision on a case from Texas. I will report back. And duck when the comments come flying in.
Just A Thought.