All posts by Harry Kelly

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Wrestling with Disparate Impact

In June 2015, the U.S. Supreme Court affirmed that policies and practices that have an unintentionally discriminatory impact on minorities and other protected persons – referred to as “disparate impact” liability – could constitute violations of the Fair Housing Act (“FHAct”). Texas Dept. of Comm. Affairs v. The Inclusive Communities Project, Inc., __ U.S. __, 135 S. Ct. 2507 (2015). Since that time, agencies and courts have wrestled with the consequences of that decision. In some instances, agencies have seen the decision as expanding the scope of possible liability for housing providers, while courts have so far applied it sparingly, to address the so-called “heartland” of disparate impact cases involving barriers to housing integration. One year in, the Inclusive Communities decision has thus far resulted in more concerns and less certainty.

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