Abstract: 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.
Keywords: disparate impact; discrimination; Fair Housing Act; housing; impact fees; inclusionary zoning; inclusive communities; set-asides; workforce housing
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