As Americans throughout the country protest systemic discrimination in the aftermath of George Floyd’s tragic death, it is important for communities to also combat the pernicious practice of housing discrimination. Multi-family housing, condominium associations, and homeowners associations, along with other types of housing providers, are bound to comply with the “Fair Housing Act” (FHA), Title VIII of the Civil Rights Act of 1968, as amended, which prohibits discrimination in the sale, rental and financing of dwellings, and in other housing-related transactions, because of race, color, religion, sex, familial status, national origin and disability. Over the last 10 years, FHA legal opinions in court cases and administrative regulations have begun to ask more of all housing providers and community associations.
In 2013, the Department of Housing and Urban Development (HUD) adopted a rule that defined potential liability based upon a housing policy’s discriminatory effect. See 24 CFR Section 100.500 (2013). A disparate impact test means that even in the absence of any discriminatory intent, policies appearing neutral on their face can be challenged based on their potential discriminatory effect. Specifically, practices such as criminal background checks and credit screenings are under increased scrutiny and threaten potential liability, depending on how the screening criteria is applied, the circumstances, and whether the defendant can prove a substantial and legitimate non-discriminatory interest furthered by the policy. In 2015, the U.S. Supreme Court issued a decision, Texas Department of Housing & Community Affairs v. Inclusive Communities Project, applying a disparate impact test that made it easier to bring lawsuits against housing providers and community associations in relation to leasing and sale restrictions. The case, which involved the allocation of tax credits to housing providers, referenced but also buttressed the new 2013 regulations.