To Achieve Fair Housing, We Must Preserve Disparate Impact

By Susan McClannahan, Fair Housing Program Coordinator, and Kate Scott, Deputy Director

The US Department of Housing and Urban Development (HUD) announced this month that it is planning to reconsider its 2013 final rule on the disparate impact standard. Disparate impact is critical to chipping away at systemic injustices in housing, including decades of government created then enforced segregation. In order to achieve the promise of the Fair Housing Act, the disparate impact rule must remain fully implemented and unchanged.

Disparate impact refers to policies and/or practices by housing providers that are neutral on their faces, but that disproportionately and negatively impact a group of people protected by the Fair Housing Act. The federally protected classes under the Fair Housing Act are race, color, religion, national origin, familial status, disability, and sex. Many local jurisdictions, such as Washington, DC, have additional protected classes.

For example, in many communities, landlords refuse to accept tenants that use a Housing Choice (Section 8) Voucher to pay the rent. In Washington, DC it is illegal to discriminate against someone based on their source of income, including the use of a Voucher to help cover rent. Yet discrimination against voucher holders is also disproportionately likely to adversely impact black homeseekers. Over 90 percent of Voucher holders in the District are black. In fact, rigorous statistical analysis demonstrates that a refusal to rent to Voucher holders is 71 times more likely to exclude black renters than white renters. Therefore, in addition to violating local anti-discrimination laws, refusing to accept tenants with Housing Choice Vouchers in DC also violates the Fair Housing Act’s prohibition against race discrimination because it has a negative disparate impact on the basis of race.

In 2017, the ERC filed suit against a local housing provider, alleging that it was committing discrimination not only based on source of income but also based on race by refusing to rent to Voucher holders. To resolve the matter, the ERC entered into a court enforced consent agreement with the housing provider, to make it easier for Voucher holders to find and secure housing, and also to enhance racial equity in the District.

Disparate impact is a vital tool to promote fair housing both locally and nationwide. The disparate impact standard makes it possible to identify and challenge more pernicious, difficult to see cases of discrimination. On the 50th anniversary of the Fair Housing Act, it would be shameful to take a step back towards segregation. We must continue to use all tools at our disposal to promote integration and equity in housing.

If you believe you may have experienced discrimination in housing, you can contact the Equal Rights Center. To report your experience, please call 202-234-3062 or email info@equalrightscenter.org.

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