Agenda - Planning Commission - 10/15/2015

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Zoning Bulletin August 10, 2015 1 Volume 9 1 Issue 15 case law, that each of those statutes authorized disparate -impact claims. In those cases, the court had held that "antidiscrimination laws should be construed to encompass disparate -impact claims when their text refers to the consequences of actions and not just to the mindset of actors, and where that interpretation is consistent with statutory purpose." Looking at § 804(a) of the FHA—which again states that it is unlawful to "refuse to sell or rent . . . or otherwise make unavailable or deny, a dwelling to a person because of race" or other protected characteristic— the court found that the "results -oriented phrase `otherwise make un- available' " referred to the consequences of an action rather than the actor's intent. The court also found that phrase was equivalent in func- tion and purpose to similar phrasing found in Title VII and the ADEA. The court also found that interpretation of the FHA text was consistent with its statutory purpose—to eradicate discriminatory practices in the Nation's housing sector. The court concluded that "[r]ecognition of disparate -impact liability under the FHA plays an important role in uncovering discriminatory intent: it peg nits plaintiffs to counteract un- conscious prejudices and disguised animus that escape easy classification as disparate treatment." "These unlawful practices," said the court, "include zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification." In its decision, the court also highlighted, however, the need to properly limit disparate -impact liability "to avoid serious constitutional questions that might arise under the FHA" (e.g., if such liability were imposed based solely on a showing of a statistical disparity). The court said that "[a]n important and appropriate means of ensuring that disparate -impact liability is properly limited is to give housing authori- ties and private developers leeway to state and explain the valid interest their policies serve." Thus, a disparate -impact claim relying on a statisti- cal disparity must fail if the plaintiff cannot point to a defendant's policy or policies causing that disparity, said the court. The court provided fur- ther guidance on disparate -impact liability stating that: policies, whether governmental or private, "are not contrary to the disparate -impact requirement unless they are `artificial, arbitrary, and unnecessary barri- ers,' " and noting that when disparate -impact liability is found, remedial orders of courts "should concentrate on the elimination of the offending practice," with race -neutral remedies (as opposed to remedial orders that impose racial targets or quotas, which might raise difficult constitutional questions). The Supreme Court affirmed the judgment of the Court of Appeals for the Fifth Circuit and remanded the matter for further proceedings consis- tent with the Supreme Court's opinion. See also: Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158, 3 Fair Dupl. Prac. Cas. (BNA) 175, 3 Dupl. Prac. Dec. (CCH) P 8137, 88 Pub. Util. Rep. 3d (PUR) 90 (1971). © 2015 Thomson Reuters 5