Nov 22, 2013

Disparate Impact saved again….

Back in October, we reported on a crucial housing case that had the potential of reversing the long standing disparate impact theory in housing discrimination law.  Housing advocates nationwide closely followed the case of the Township of Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc. The fundamental issue was whether disparate impact claims can be brought under the Fair Housing Act.

The disparate impact standard has helped in the fight against housing discrimination, by enabling plaintiffs prove discrimination by focusing on the disparate impact of discriminatory housing policies and practices.  As our October report indicated, all U.S Appellate Courts have ruled on this issue and have held that the Fair Housing Act allows claims under a “disparate impact” theory. The case was scheduled to be heard before the US Supreme Court on December 4, 2013. However, lawyers from both sides reached a settlement agreement last week and would file a joint agreement to dismiss the petition filed with the Supreme Court and a joint stipulation of dismissal with the federal district court to end the litigation.

The parties in the case were the City of Mount Holly and property owners in the Mount Holly Gardens neighborhood, who claimed that the City’s aggressive redevelopment program had displaced hundreds of predominantly African American and Hispanic residents.  A Supreme Court ruling that disparate impact claims are not available under the FHA because of a lack of textual support would have carried serious implications for housing discrimination claims. This is the second time in recent years that the issue of disparate impact has fallen short of oral argument before the US Supreme Court. Currently, the disparate impact standard is still saved in cases under the Fair Housing Act.

Nov 12, 2013

Illinois the 15th State to Legalize Same-Sex Marriages

Illinois will become the 15th state to legalize same-sex marriage as the House and Senate passed the Religious Freedom and Marriage Fairness Act. Governor Quinn promised to immediately sign the bill when presented to him.

Oct 12, 2013

Supreme Court to Decide on Fair Housing Rule Potentially Crucial to Housing Discrimination Claims

The U.S Supreme Court is scheduled to hear arguments in a case that could potentially reverse decades of settled housing discrimination law.  The case deals with residents of a low-income neighborhood called The Gardens in Mount Holly, New Jersey. The residents sued the township when it bought and demolished homes in a predominately minority neighborhood.  Several years ago, the township adopted a controversial plan that called for the demolition of all of the existing homes in the township’s only predominantly African-American and Hispanic neighborhood. The town’s council voted to buy all the homes in the low-income neighborhood for existing market prices ranging from $32,000 to $49,000.  The plan was to replace the homes with 520 new homes ranging in price from $200,000 to $250,000. The prices are well beyond what the current residents could afford. Approximately 260 families already moved out. Seventy remain, including approximately 30 that are parties to the lawsuit.  
The main issue in the case is whether the Fair Housing Act requires minorities to prove intentional racial discrimination in sales, rentals, zoning or lending practices, or whether the policy has a "disparate impact".  The residents contend that any redevelopment of the neighborhood would affect Blacks and Hispanics more than Whites and is therefore discriminatory.  City officials on the other hand said they were trying to improve a blighted part of town and are not engaged in illegal discrimination.  The town argued that merely proving it displaced minority residents is not enough, and that the residents must prove that City officials who made the decision were motivated by a desire to discriminate.  However, a federal appellate court agreed with the former residents, and the town appealed to the Supreme Court.
All U.S Appellate Courts have ruled on this issue and have held that the Fair Housing Act allows for “disparate impact” claims. The Supreme Court will now decide this issue. A reversal of the appellate court will have will have negative affects to housing discrimination cases nationwide.  The disparate impact standard has been a very useful tool in the fight against discrimination to date. Such a theory of discrimination is needed because modern day discrimination is not as blatant as in the past.  By focusing on the impact of unfair housing practices, the disparate impact standard often helps screen out discrimination that is intentional, but subtle or concealed.  The theory also eliminates practices that may be neutral on their face but nevertheless extend the effects of prior racial discrimination.  If plaintiffs have to prove discriminatory intent, the majority of housing practices that disadvantage minorities will be left unchallenged.  As Florence Roisman, a fair housing scholar put it,  "If the court overturns disparate impact," It is going to gut the statute." Simply put, if the Supreme Court strikes down the disparate impact standard, it will essentially silence a weapon that has for over for over 40 years, helped to eradicate discrimination in housing.

Jul 30, 2013


Thiago Derucio and his partner were denied an apartment because they are gay. They responded to an online ad for housing but were turned down once their sexual orientation was revealed. Their experience is not unique. Same-sex couples often have to pay more in taxes when they buy or sell a home, or transfer ownership interest, than married heterosexual couples do. In other instances, they are denied housing loans. This is mainly because; there is no national law that protects against sexual orientation discrimination in housing. The federal Fair Housing Act as Amended (FHAA) prohibits discrimination in housing on the basis of race, color, national origin, religion, sex, familial status or handicap but not sexual orientation and gender identity. A patchwork of state and local laws offers some of the much needed protections to gay and transgender people. But the lack of a comprehensive federal law means that people like Thiago and his partner, do not have equal access to housing. However, the recent Supreme Court ruling, striking down the Defense of Marriage Act (DOMA) gives some indication that discrimination in housing based on sexual orientation may soon be a thing of the past.

The Court struck down the federal law mainly because it denies same-sex couples the equal liberty guaranteed by the Fifth Amendment. The decision basically holds that persons of the same sex who are legally married under State law may not be deprived of the federal benefits that are provided to married couples of the opposite sex. This decision will have far-reaching implications for same sex couples in areas like bankruptcy, federal employee benefits, the Family Medical Leave Act, Immigration, Medicaid, Medicare, military spousal benefits, private employment benefits, Social Security, SSI, taxes and hopefully in fair housing.

The Court’s decision could provide the needed impetus for a federal rule prohibiting discrimination on the basis of sexual orientation in the rental and ownership of housing. This is likely, considering HUD’s 2012 adoption of the Equal Access Rule that prohibits lenders from discriminating on the basis of actual or perceived sexual orientation, marital status or gender identity in granting mortgages insured by Federal Housing Administration (FHA). A recent settlement reached between HUD and Bank of America (BOA) in regards to an anti-gay mortgage discrimination complaint provides an indication that such a rule will be enforced.

On the heels of the Supreme Court’s rulings on marriage equality, U.S. Sen. Sherrod Brown recently introduced the Housing Opportunities Made Equal (HOME) Act of 2013, which would for the first time bar discrimination against LGBT Americans when selling or renting property. The Act would add sexual orientation, gender identity, marital status and source of income to those FHA protected classes, but it has yet to be introduced to Congress.

A new study by HUD found that same-sex couples were "significantly less likely than heterosexual couples to get favorable responses to e-mail inquiries about electronically advertised rental housing." In fact, heterosexual couples were favored over gay male couples in 15.9 percent of the tests, and over lesbian couples in 15.6 percent. We can only hope that the recent Supreme Court decision will make such forms of discrimination illegal and allow people like Thiago Derucio and his partner equal access to housing.