The U.S. Supreme Court Upholds “Disparate Impact” Claims Under The Fair Housing Act

Although it was largely overshadowed by more publicized rulings involving the Affordable Care Act and marriage equality, the U.S. Supreme Court also issued a key decision involving the Fair Housing Act last week.  In Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., the Supreme Court ruled that parties may bring “disparate impact” claims under the Fair Housing Act (FHA).

So what is a disparate impact claim?  A plaintiff bringing a disparate impact claim must show that a particular policy or practice has a disproportionately adverse effect on members of a class protected under the FHA.  Contrast this from disparate treatment claims, where a plaintiff is alleging that he or she was treated adversely because of the defendant’s discriminatory intent or motive.  Accordingly, a property’s policy or procedure that is facially non-discriminatory, but which has a disproportionately adverse effect on a protected class, may be a violation of the Fair Housing Act under a disparate impact theory—even if the property had absolutely no discriminatory intent or motive in enacting the policy or procedure.

So is this a big deal? Well, kind of.  While this is the first time that the Supreme Court has ruled on this specific issue, every federal court of appeals that has reviewed the issue has upheld the validity of disparate impact claims.  And the Department of Housing and Urban Development (HUD) has taken the position that the FHA encompasses disparate impact claims.  As such, the Supreme Court’s decision does not represent a change in the law—rather, it merely upholds the status quo.  Although it should be noted that the U.S. House of Representatives has introduced an amendment to an appropriations bill that would prohibit the Department of Justice from using funds to prosecute or settle discrimination cases filed under a disparate impact theory.

So how does this impact landlords and management companies?  Hopefully, you have already been scrutinizing your policies and procedures to determine if they might have a disproportionate impact on protected class members.  We have routinely advised our clients over the years to proceed as though disparate impact theories were cognizable under the Fair Housing Act, and to revise their policies and procedures effectively.  If there is any uncertainty as to whether your policies or procedures may have a disparate impact on a protected class, I would recommend that you seek out experienced counsel to help you retool your policies.

Not So Fast! Think Twice Before Denying An Assistance Animal Request Based On Breed

Landlords and property managers often wonder whether they can deny a resident’s fair housing accommodation request for an assistance animal because the animal is on a “restricted breeds” list.  The short answer is “no.”  Or, perhaps more accurately, “probably not.”

The federal Fair Housing Act, 42 U.S.C. §§ 3601 et seq., requires that properties make reasonable accommodations in rules, policies, practices, or services when those accommodations are necessary to afford people with disabilities the equal opportunity to use and enjoy an apartment community.  Consequently, a property with a “no pets” policy must make an exception to that policy and grant a reasonable accommodation request to allow an assistance animal at the property when: 1) the resident making the request has a disability within the meaning of the Fair Housing Act; and 2) the resident making the request has a disability-related need for the assistance animal.

But wait, you say!  What if a resident is requesting an emotional support pit bull, and my community has a restricted breeds policy that prohibits dangerous breeds, such as pit bulls?  May the request be denied as “unreasonable”?  Put simply, probably not.  HUD (the U.S. Department of Housing and Urban Development, the agency charged with enforcing the Fair Housing Act) has made clear that “[b]reed, size, and weight limitations may not be applied to an assistance animal.”

But what about the threat that a dangerous breed, such as a pit bull, might pose?  According to HUD, any determination that an assistance animal poses a direct threat to the safety of the community (or would cause substantial physical damage to property) must be based on an individualized assessment of the specific animal at issue.  In other words, housing providers are not allowed to deny an assistance animal request simply because they believe that particular breeds—such as pit bulls—are dangerous.  Instead, the denial must be based on objective evidence about the specific animal’s actual conduct.  Therefore, consider requiring a certification stating that the animal does not have any aggressive, dangerous, or vicious propensities.