Op-ed co-authored by Western Center housing attorney Matt Warren.
By Matt Warren, Western Center Housing Attorney
I’m a bit of a nester. I spend a lot of time thinking about my lived environment — how to make my office more productive, my home cozier. I obsess over the color of light bulbs, indoor plant selections, and furniture placement.
I’m also a housing attorney, so I think a lot about where and how people find and create a safe home for themselves, and how they establish their own sense of cozy.
The sites, conditions, and availability of housing in our country (and throughout the world) have long been limited based on socially-defined characteristics: gender, occupation, physical or mental ability, race, country of origin, family composition, religion. These characteristics and more have shaped the places and communities where people live in the United States. Perhaps more importantly, they also shape the limits of where people cannot live, and the condition of the housing they can access.
The federal Fair Housing Act (FHA), initially adopted on the heels of the assassination of Dr. Martin Luther King, Jr., is one of our most important tools to fight against the discrimination and limitations that have defined housing practices in our country’s history. The FHA is a foundational tool for advancing housing opportunities for entire communities. Housing advocates use the FHA to challenge the practices of landlords who unfairly refuse potential tenants, the lending practices of banks that prey on vulnerable groups, and zoning changes by local governments that limit equitable opportunity.
In August, the Department of Housing and Urban Development (HUD), the federal agency tasked with upholding and advancing the FHA, proposed a rule that would dramatically change the way that the FHA can be used. Courts and HUD have interpreted the FHA as including the “disparate impact” theory of housing discrimination for decades, but the new rule proposes to severely limit how and when victims of discrimination can sue under this theory.
Disparate impact is discrimination that occurs when a facially neutral practice has a discriminatory effect on a protected class. Examples of disparate impact include occupancy standards that exclude families by restricting the number of people allowed to live in a unit together, the practice of targeting historically segregated minority neighborhoods for predatory loans using zip codes or other proxies, landlord screening policies that exclude persons with criminal histories (this is particularly discriminatory since Blacks and Latinos are incarcerated at disproportionate rates), and cities limiting construction of multi-family housing that is affordable for working-class people — a majority of whom are people of color.
Proving discrimination using disparate impact has become essential in civil rights enforcement. As described by Justice Kennedy in Texas DHCA v. Inclusive Communities Project (2015), “It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this way disparate-impact liability may prevent [discrimination] that might otherwise result from covert and illicit stereotyping.”
HUD’s proposed rule includes a lot of changes to existing law. First, instead of providing a clarifying interpretation of the law, the rule adds a five-element test for plaintiffs at the pleading stage. Right now, victims of discrimination can move forward with a claim if they’re able to show that a practice caused a discriminatory effect. The new five-part test would require them to essentially know the inner workings of the often complex entities in charge of their housing before they head to court, which will result in fewer cases. Second, the proposed rule attempts to erase part of the disparate impact theory entirely so practices that “perpetuate segregation” are no longer actionable.
Third, the proposed rule would make it easier for entities facing allegations of disparate impact discrimination to evade responsibility for their actions. Part of the proposed rule allows a business entity to evade responsibility for discriminatory impacts if they use an algorithm to deny someone a housing opportunity. Algorithms are routinely used for housing decisions, many of which reflect and maintain existing disparities in the housing market. Think of it this way: because of redlining and other historical disadvantages, people of color have been explicitly and systematically excluded from credit-building opportunities compared to white counterparts. Algorithms that base loan decisions on existing creditworthiness perpetuate disparities in access to loans, meaning historical disadvantages continue and deepen. HUD’s proposal would shield actors who rely on these algorithms from liability.
All of these changes are aimed at making it more difficult to allege discrimination, while limiting liability for landlords, banks, and insurance companies. It will make it more difficult for people to find and create homes by allowing housing-related businesses to unfairly limit where and how they can live.
The proposed rule impacts other areas of law as well. Victims of discrimination in employment and education have also utilized disparate impact theory to level the playing field. These areas of law borrow significantly from each other, with many advocates and courts pointing across subjects for the persuasive authority of similar discrimination cases. Even though HUD’s proposed rule specifically targets housing discrimination enforcement, it will have serious impacts on the interpretation of disparate impact in other civil rights fields.
The proposed rule is also hugely significant because it weakens our ability to combat racism. Racism and white supremacy are baked into our country’s identity, impacting our sub-conscious, our interpersonal interactions, our institutions, and our broader social systems. Racism has traditionally been understood as blatant and intentional discrimination against minorities—but now, sophisticated housing providers know not to overtly treat people differently, and discrimination often takes the form of “neutral” policies that end up harming people of color. It’s still profitable to discriminate against people of color and other protected minorities because those groups have less access to social benefits and wealth. By maintaining these kinds of race-neutral policies, businesses reinforce historical advantages of whites while perpetuating disadvantages of people of color.
The proposed rule change reflects this administration’s favoritism toward real-estate businesses, but it also reveals white fragility in action. The proposed rule attempts to impose the intent standard on all allegations of discrimination, shielding “color-blind” policies that preserve an inequitable status quo. It ignores that differential treatment of people of color continues to happen at subconscious levels, focusing the standard instead on differential treatment.
The disparate impact standard remains relevant because acts that perpetuate discrimination have continuing, real, and negative impacts even where there is no malicious intent. HUD’s proposed changes to the disparate impact rule facilitates systemic oppression via banal intentions.
The only positive thing to say about the proposed rule is that it is not yet in effect. HUD is in the process of soliciting comments, until October 18, 2019, to comply with the requirements for adopting administrative rules. You can have an impact on the proposed rule by submitting a comment to HUD explaining why it would have a harmful impact on you, your family, your friends, your neighbors, your tenants, your clients, or your community.
Our team at Western Center on Law & Poverty is partnering with the National Housing Law Project and the Shriver Center on Poverty Law on the Fight for Housing Justice Campaign. We’ve created a website that includes resources, as well as a comment portal that allows you to submit your comment to HUD. It is vital that HUD hear from as many people as possible.
Please help us fight against this attempt by the Trump administration to limit housing choice; expanding housing choice is essential for creating a more equitable country, and safe, secure housing is fundamental to our humanity. Let’s make sure everyone has a place to cozy up, fuss over lighting, and obsess over where the couch should go.