Post submitted by Stephen Peters, former Senior National Press Secretary and Spokesperson

Today, HRC praised the decision by the Supreme Court of the United States in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. The Court was asked to decide whether or not the Fair Housing Act allows for lawsuits based on whether a law or policy has a discriminatory effect – even though the discrimination may have not been purposeful – since discrimination is rarely stated as an intent. The Court ruled that lawsuits based on such complaints, known as “disparate impact,” are lawful.

“Disparate impact claims under the Fair Housing Act are key to addressing systemic housing discrimination and segregation in the United States, including against LGBT people,” said HRC Legal Director Sarah Warbelow. “As the LGBT community seeks to gain explicit protections from discrimination based on sexual orientation and gender identity in housing, this decision from the Court is welcome news and reinforces this important tool for addressing housing discrimination.”

The Inclusive Communities Project argued the Texas Department of Housing and Community Affairs “disproportionately granted ... housing credits in minority areas of the Dallas region, while at the same time disproportionately denying them in white areas of Dallas.  A federal district court agreed with the Project, finding that the agency’s allocation of tax credits violated the FHA because it had a disparate impact on minorities. Under the ruling, it did not matter whether the agency intended to discriminate against minorities; the effect was enough to violate the law.” (SCOTUSblog) Today’s ruling from the Supreme Court upholds this decision.

Going forward, victims of housing discrimination can continue to use disparate impact claims as a tool to challenge a policy that has a discriminatory effect on a protected class.  If a policy has a discriminatory effect, a win on a disparate impact claim will require that the policy be changed so it is both fair and effective.  If the policy has a legitimate reason behind it, and no other policy could achieve the same goal with a less discriminatory effect, then the policy stands.  

LGBT people, especially those in communities of color, rely on the Fair Housing Act to address inequality.  Although the Fair Housing Act does not specifically protect from discrimination on the basis of sexual orientation and gender identity, many LGBT people who experience discrimination based on their sexual orientation or gender identity may still be covered by the sex or disability provisions of the Fair Housing Act. An example of this could include a gay man living with HIV who is evicted by his landlord under the guise of “protecting other tenants.”  That situation may constitute illegal disability discrimination under the Fair Housing Act because HIV is protected as a disability.  Similarly, if a property manager refuses to rent an apartment to a prospective tenant who is transgender and is denied because of the prospective tenant's nonconformity with gender stereotypes, it may constitute illegal discrimination on the basis of sex under the Fair Housing Act.

Filed under: Community, SCOTUS

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