New Hampshire Legal Assistance

Helping to balance the scales of justice for everyone since 1971.

NHLA celebrates Supreme Court ruling protecting victims right to claim disparate impact

NHLA joins with fair housing advocates around the country to celebrate a U.S. Supreme Court ruling affirming the "disparate impact theory," which allows people to challenge lending rules, zoning laws and other housing practices that have a harmful impact on vulnerable classes of people, even if the companies or government agencies that created the rules didn't intend to discriminate.

The federal Fair Housing Act prohibits discrimination on the basis of race, color, religion, national origin, sex, familial status and disability. The disparate impact theory allows advocates like NHLA to challenge policies, procedures or laws that have a disproportionately negative effect on people in those protected classes, even if the policy or law itself seems neutral. NHLA advocates and others across the country have used disparate impact theory to shine a light on discriminatory policies, and we're pleased the Court recognized its importance as a tool in the fight for equal housing opportunity for all. 

"The decision preserved an extremely important protection in fair housing law, because it helps us go to the structural issues that perpetuate the limitations on equal housing opportunities for protected class groups," said NHLA Fair Housing Project Director Christine Wellington. "To a very large degree, as a society we’ve been able to suppress overt discrimination. But how we’ve organized our society itself favors some people over others. That’s the structural discrimination we try to address through disparate impact claims."

The case before the Supreme Court alleged that a Texas housing agency was distributing low-income housing tax credits in a way that perpetuated segregation of racial and ethnic minorities, which made it more difficult for members of those groups to move to neighborhoods with better schools and greater economic opportunity. 

Though there was no apparent intention to discriminate, advocates argued the policy had a disparate impact on racial and ethnic minorities. The case is the first time the Supreme Court had the opportunity to rule on whether disparate impact is a legitimate theory of law. 

Writing for the majority, Justice Anthony Kennedy said that disparate impact is an important and legitimate theory of law under federal housing law. He said disparate impact cases “may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping.” 

The Court also set out a narrow interpretation of the scope of disparate impact analysis, limiting liability to governmental or private entity policies that are “artificial, arbitrary, and unnecessary barriers.” Statistics showing disparate impact - segregated neighborhoods in Texas, for example - are not enough on their own to make a case of discriminatory policy. The challenged policy must be shown to at least contribute to or re-enforce the discriminatory impact. 

The most recent disparate impact case in New Hampshire drew nationwide attention. The U.S. Department of Housing and Urban Development settled an investigation against the city of Berlin after NHLA filed two complaints on behalf ofa female domestic violence victim who was denied housing opportunities.

The housing providers cited a city ordinance as the basis for rejecting NHLA's client's applications for housing. The ordinance required landlords to evict tenants if they received three citations from police, with the intention of reducing problem properties where police were frequently called. However, the ordinance resulted in discrimination against victims of domestic violence who - like NHLA's client -  called on police for help against their abusers. 

Domestic violence victims are statistically more likely to be women, who are a protected class under federal fair housing laws. As part of the settlement with federal investigators, the city exempted crime victims from its three-strikes ordinance. 

Other disparate impact cases in New Hampshire are based on disability or family status, NHLA's Housing Justice Director Elliott Berry told NHPR's The Exchange. 

One common complaint involves arbitrarily-low occupancy standards where landlords will say no more than 2 people can live in a given unit.

"It may very well be that there is no reason in the world that three or four people can't live there, except the landlord doesn't want to have families with children living there," Berry said. "Discrimination against families with children is illegal under federal and state law and as the court decision recognizes, disparate impact is often the only way you can get at that, because people know it's illegal so they don't say 'we want to have any kids here.'"

"Litigation is expensive and it's time-consuming. It's wonderful when you can avoid it but when you're talking about the importance of equal housing opportunity, it's necessary for people to have the tools to combat that," Attorney Berry said. "I stress again that so often, the discriminatory actions are hidden, and disparate impact, as the court recognizes, is the only way to get at that."

NHLA provides training for groups on fair housing and housing law topics. Interested persons should contact Christine Wellington.