House Passes Disparate Impact Amendment to FY 2016 HUD Appropriations Bill

As of publication of this July 2015 issue, no decision has yet come down from the U.S. Supreme Court on Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., the case that will decide whether it’s within the bounds of the Fair Housing Act to be able to apply the controversial “disparate impact” doctrine. Disparate impact liability allows the government to allege discrimination on the basis of race or other factors based solely on statistical analyses that find disproportionate results among different groups of people, regardless of evidence of actual discriminatory actions or intent.

In the Supreme Court case, the Texas Department of Housing and Community Development argues that the text and history of the law confirm that fair housing law does not allow disparate impact claims, but instead authorizes only claims based on intentionally discriminatory conduct.

While the ruling has yet to be announced, the House of Representatives recently passed an amendment to limit the government’s use of disparate impact regardless of the impending ruling. The amendment was added to H.R. 2577, the Transportation, Housing and Urban Development, and Related Agencies Appropriations Act for Fiscal Year (FY) 2016. Specifically, it prohibits the use of government funds for litigation in which the Department of Justice seeks to apply the disparate impact theory.