Regular Fair Housing Defense blog readers may remember that the U.S. Supreme Court heard arguments on a case involving our Fair Housing Act (FHA) back in January. A decision is expected before the end of this month answering the question: are disparate impact claims cognizable under the current fair housing statute? Again, while federal case law from the past 40 years confirms that disparate impact claims (which are typically proven by the means of statistical analyses showing a disproportionate impact on a protected class) are viable, the words “disparate impact” are not in the FHA and a number of lawsuits have been filed challenging the practice. The plaintiffs typically argue that someone must have intended to discriminate in order to state an actionable claim.
In an effort to change the law going forward, just last week the U.S. House of Representatives passed an amendment to one of the fiscal 2016 spending bills which would specifically prohibit the U.S. Department of Justice from using federal funds to prosecute and/or obtain legal settlements in lawsuits from landlords, insurers, or lenders based on disparate impact claims. The vote in the House was 232-196. All House Republicans voted in favor of the amendment as did 11 House Democrats. While it is too early to determine if the language will be signed into law, it is a development worth following – particularly as we wait for the Supreme Court to rule.
Again, from my seat as management’s lawyer, we just want to know the rules of the road. We will do our best to get it right. And I look forward to some clarity.
Just a Thought.