JUNE 2017

    David L Callies and Derek B Simon

One of the most effective means to combat housing discrimination is statutory prohibition for protected minority classes. The US Federal Fair Housing Act (FHA) represents a model for such statutory prohibitions. The FHA prohibits such discrimination by either public (state and local government agencies) or private (landlords) actors on the basis of race, religion, national origin, sex, family status or disability. Following a Supreme Court decision in the 1970s, proof of intent to discriminate is necessary to bring an action under the US Constitution’s 14th Amendment Due Process and Equal Protection clauses. However, no such intent need be proved to sue under the FHA. Federal Appeals Courts sustained dozens of lawsuits claiming discrimination based simply on disparate impact of government or private action on one of the aforementioned protected classes. In 2014, the Supreme Court approved such a theory even though disparate impact is not mentioned in the FHA. However, the Court hedged the application of disparate impact with so many caveats and restrictions that many federal courts have now ruled against parties bringing disparate impact claims of discrimination under the FHA.

disparate impact; discrimination; Fair Housing Act; housing; impact fees; inclusionary zoning; inclusive communities; set-asides; workforce housing
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The United States has struggled with discrimination in housing and the providing affordable, workforce or low-income housing for decades. This article summarises and analyses the problems and opportunities created in large measure by federal and state courts together with guidance provided by the US Department of Housing and Urban Development (HUD) to address these issues and problems. First, this article addresses the problem of discrimination in housing and the use of disparate impact claims as a remedy under the Fair Housing Act (FHA) in light of the recent clarification provided by the US Supreme Court in its decision in Inclusive Communities v Texas Department of Community Affairs. There follows a discussion of recent HUD guidance by way of administrative rule, together with a summary of how federal courts address discrimination in housing following the decision in Inclusive Communities. Second, this article addresses the concept of inclusionary zoning as a potential remedy for the construction of new affordable or workforce housing by placing the burden on the land development community as a condition or conditions for land development approval. This article concludes that while discrimination in housing has been well addressed by the courts, providing a remedy even when the government does not intentionally discriminate against potential poor residents on the basis of race, religion, handicapped or family status, the use of inclusionary zoning presents clear problems under the US Constitution despite the occasional support from a few state courts.