Anatomy of a Fair Housing Case

§ 804 of the Fair Housing Act [42 U.S.C. 3604] makes the following actions illegal:

(a) “To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status or national origin.
(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.
(c) To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.
(d) To represent to any person because of race, color, religion, sex, handicap, familial status, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.
(e) For profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex, handicap, familial status, or national origin.” 42 U.S.C. § 3604.

Generally, there are three categories of fair housing cases in regards to how a violation of the law is demonstrated. These three basic categories are disparate treatment, disparate impact, and as for disability cases, the failure to provide reasonable accommodations can be a violation of the act. While the Supreme Court has yet to rule on the validity of disparate impact claims brought under the Fair Housing Act, all federal circuit courts have recognized such claims.

1) Disparate Treatment

The essence of a disparate treatment claim rests on the fact that one (protected) class of person is treated differently than another. This fact can be proven in court by either direct “smoking gun” evidence of discriminatory intent, such as statements by the decision maker to the effect of “I do not rent apartments to black people,” or by indirect, circumstantial evidence, such as departures from normal procedure, statistical disparities, or sequences of events which indicate some discriminatory motive.

If a plaintiff offers direct evidence of discriminatory intent, such evidence will be submitted to a jury to determine whether it is sufficient to find a violation of the Fair Housing Act. If a plaintiff has no direct evidence, courts will apply the burden-shifting framework used in McDonnell-Douglas v. Green to determine whether discrimination motivated the decision against the plaintiff. In this framework the plaintiff, who bears the initial burden of proof, must show that they were

1) a member of a protected class; 2) qualified for the housing in question; 3) rejected from the housing in question; and 4) the housing remained available or was given to someone who is not a member of a protected class.

If the plaintiff can prove these four elements, the defendant must “articulate a legitimate, non-discriminatory reason” for denying the plaintiff housing. It is important to understand that the defendant need only articulate this reason, it does not need to be proved by any evidence. If the defendant succeeds in articulating this legitimate, non-discriminatory reason, the plaintiff will then be required to show that such legitimate, non-discriminatory reason is in fact a smoke-screen for a desire to discriminate. This can be accomplished by producing any sort of evidence which would allow a reasonable jury to conclude that the decision was motivated by discriminatory intent. If the plaintiff prevails through this burden-shifting framework, or by producing direct evidence of discrimination, they may be entitled to either injunctive or monetary relief.

2) Disparate Impact

The essence of a disparate impact claims rests on the fact that an apparently neutral decision has a disproportionate effect on members of a protected class. This is most often proven through statistical evidence, and the plaintiff does not need to show that the defendant acted with any discriminatory motive. Courts will analyze disparate treatment claims according to a four part balancing test, which includes the following elements:

1) The strength of the plaintiff’s showing of disproportionate effect 2) Whether there is some evidence of discriminatory intent 3) The defedant’s interest in taking the action at issue; and 4) The nature of the requested relief

Although the Supreme Court has yet to rule on the validity of disparate impact claims, they have been recognized in every federal circuit by extending analysis borrowed from employment discrimination cases. Thus the source of the disparate impact analysis can be found in Griggs v. Duke Power Co., 401 U.S. 424, (1971).

3) Reasonable Accomodations

The essence of a claim for failure to make reasonable accommodations rests on the fact that a certain rule, policy, practice, or service denies a handicapped person “the equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3). Whether the burden of proving the reasonability of the accommodation rests on the plaintiff or the defendant varies among states and circuits, but it is established that if an accommodation imposes too serious of an economic or administrative alteration, it will not be considered reasonable. Because of the highly fact-specific inquiry involved in reasonable accommodations claims, it is necessary to research your particular state or federal circuit’s precedent in order to present a valid claim for a failure to make reasonable accommodations.

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