LEGALLY SPEAKING
DISPARATE IMPACT
Supreme Court case could impact apartment industry
By Mark B. Zinman n what is clearly an important case for property managers and owners, the Supreme Court is set to decide whether a complainant (tenant) in a fair housing case must prove intentional bias or whether a “disparate impact” is enough to demonstrate discrimination. Disparate impact is when a neutral policy has an unintended negative impact upon a protected class. An example of a disparate impact argument would be a tenant alleging that the “no felony rule” discriminates against Black and Hispanic people. It has been argued that because statistically there are more Black and Hispanic people in jail than White people (http://www.naacp.org/pages/criminaljustice-fact-sheet), that the rule unintentionally discriminates
I
BATES
against a protected class based upon race. On its face, the “no felony rule,” is not discriminatory against a protected class, but statistically a protected class is being more negatively affected by the rule. Across the country, federal appellate courts have found that a disparate impact test does apply to fair housing cases. The Supreme Court has never decided the issue; however, because every case before them has settled. In the current case, the State of Texas is being sued for giving an abnormally high proportion of low-income housing tax credits only to minority neighborhoods, thus allegedly furthering segregation. While
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