October 02, 2019 HUMAN RIGHTS

An Attack on Housing Equality

by Kathy Trawick

One week after Dr. Martin Luther King Jr. was assassinated, on April 11, 1968, the Fair Housing Act (42 U.S.C. § 3601 et. seq.) was passed. The Office of Fair Housing and Equal Opportunity within the Department of Housing and Urban Development (HUD) is charged with the administration and enforcement of the Act. The Act aims to protect individuals from discrimination in housing and being treated differently based on race, color, religion, national origin, sex, familial status, or disability. This protection extends to all residential housing, whether subsidized or not; and to sales, lending, insurance, and zoning transactions that involve residential housing.

HUD has long recognized that certain policies that seem neutral can have a discriminatory effect, or disparate impact, on certain groups of people. On February 15, 2013, HUD published a final rule that unequivocally prohibits policies that seem neutral in theory, but when put into practice, disproportionately harm people who the Fair Housing Act intends to protect (24 C.F.R. § 100.500). Courts have allowed disparate impact claims for over 45 years. The U.S. Supreme Court affirmed the use of disparate impact in a 2015 ruling in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015).

One Step Forward, Two Steps Back

Here we are in 2019, only a year after the eye-opening #METOO movement swept the nation and shone a harsh light on the reality that women continue to face discrimination in employment in the form of sexual harassment, forcing employers to step up and enforce laws intended to keep members of a protected class safe. And yet, disparate impact, a significant tool in the battle for housing equality is about to be gutted.  

If HUD is successful in changing the rule, 45 years of protection against covert discrimination will be destroyed and significant numbers of people will be harmed. Access to affordable housing is not the same as fair housing. However, many neutral policies have had a disparate impact on people with disabilities, families with children, and communities of color or certain nation origins contributing to a lack of access to affordable housing. Many policies that have contributed to the gentrification of our neighborhoods have their roots in disparate impact theories. 

HUD’s proposed new rule imposes burden of proof so high, it has been suggested this is intended to be virtually impossible to meet. In what some have referred to as a game of “whack-a-mole,” victims must guess what justifications a defendant might use and preemptively counter them. Even more disheartening, the new rule seems to suggest that if a policy is profitable to the business, the victim must demonstrate that an alternative non-discriminatory practice would be as profitable—valuing money over people.

Why Everyone Should Care

Disparate impact affects much more than housing and many more protected classes. Disparate impact has played a critical part in advancing the rights of families with children, people with disabilities, women, LBGTQ people, people of faith, and communities of color. Education, employment, health care, the environment, transportation, the criminal justice system are but a few additional areas that have protections advanced by the disparate impact theory.

The largest number of housing discrimination cases across the country impact people with disabilities. As we age, we will all have a physical or mental impairment that substantially limits one or more major life activity. In other words, we will qualify as a person with a disability under the Fair Housing Act at some point in our lives. At some point in our lives we may have children under the age of 18 living with us. Additionally, many of us are, or know someone who is, a survivor of domestic violence. In other words, just about all of us are members of at least one protected class, or will be at some time in our life.

Families could face homelessness because landlords will be able to enforce leases that hold victims of domestic violence responsible for disturbing their neighbors’ quiet enjoyment. Landlords or mortgage companies could exclude applicants who don’t work full time, effectively excluding people with disabilities who are otherwise eligible. Families with children could be barred from certain apartments or forced to rent larger, more expensive apartments if landlords are allowed to implement a one person per room requirement.

This change will likely harm you or someone you know.

What You Can Do

First and foremost, educate yourself. HUD is currently seeking comments on the proposed rule through October 18, 2019, so time is short. The proposed rule can be found in the Federal Register/Vol. 84, No. 160/Monday, August 19, 2019/Proposed Rules or this link.

Visit www.defendcivilrights.org for a more in-depth discussion of the rule and a link for submitting comments.

Kathy Trawick is the executive director at the Tennessee Fair Housing Council.