Landlords and Rentals Disparate Impact Amendment

Main Digest

A recent amendment limiting the use of "disparate impact" as a legal theory passed the House in Congress and will change housing policy, subsequently highlighting an urgent need for landlords and property managers to work with third-party tenant screening companies in order to remain fully complaint.

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Adam Almeida adds:

"This amendment directly affects mortgage lending and yet there will be broader affect felt across the housing spectrum, including rental properties."

Disparate impact is a complicated legal issue, one not easily explained. From the National Fair Housing website, disparate impact, as related to housing, is defined as such (Jan. 15, 15):

"Disparate Impact is a legal doctrine under the Fair Housing Act which means that a policy or practice may be considered discriminatory if it has a disproportionate "adverse impact" against any group based on race, national origin, color, religion, sex, familial status, or disability."(1)

Under this theory, a violation of Title VII of the 1964 Civil Rights Act may be proven by showing that an employment practice or policy has a disproportionately adverse effect on members of the protected class as compared with non-members of the protected class. Disparate impact contrasts with disparate treatment. A disparate impact is unintentional, whereas a disparate treatment is an intentional decision to treat people differently based on their race or other protected characteristics.

In Washington DC the House of Congress recently passed an amendment limiting the use of "disparate impact" as used in housing litigation by the Department of Justice. This action is in advance to an upcoming Supreme Court ruling regarding a similar issue, due at the end of June 2015.

From housingwire.com (Jun 03, 15):

"The House passed his amendment to H.R. 2578, the Fiscal Year 2016 Commerce, Justice, and Science Appropriations Act. The amendment would bar the Department of Justice from using funds for litigation in which they seek to apply disparate impact theory."(2)

While the full effect of this new amendment is yet to be fully felt it is a clear indication of the potential legal morass within the housing and rental market.

Adam Almeida states:

"Just as the disparate impact theory affects pre-employment background screening, disparate impact can affect the rental market. Clearly the action by the House could affect how landlords and property managers conduct screening. Combined with the upcoming SCOTUS opinion, greater scrutiny will certainly be placed on how vetting rental applications with tenant background checks is conducted with various protected classes."

From bankingjournal.aba.com (Jun 04, 15):

"...Under HUD's rule, a lender, apartment owner, apartment manager or housing cooperative could be challenged if these practices yield different results for a protected class, and also face severe reputation harm and significant costs of defense."(3)

By the end of June 2015 the Supreme Court will have ruled on the issue of disparate impact and, perhaps, provide further guidance as to the use of this legal tool. While the outcome is still in question undoubtedly the results will cause a great deal of change within the housing market and, subsequently, the rental market.

Almeida states:

"At the core of the ruling is the use of disparate impact within a legal context. The House action combined with the potential Supreme Court ruling could greatly change the legal environment not only with lending but with renting also. Landlords will have to remain very clear and practiced in their rental policies and use of tenant screening, and it is critical they work with third-party tenant screening companies to remain compliant."

Notes:

• (1) nationalfairhousing.org/publicpolicy/disparateimpact/tabid/4264/default.aspx
• (2) housingwire.com/articles/34087-house-passes-amendment-to-limit-disparate-impact-far-beyond-housing-policy
• (3) bankingjournal.aba.com/2015/06/aba-groups-welcome-amendment-to-limit-disparate-impact/

Attribution/Source(s):

This quality-reviewed article relating to our Disability Housing section was selected for publishing by the editors of Disabled World due to its likely interest to our disability community readers. Though the content may have been edited for style, clarity, or length, the article "Landlords and Rentals Disparate Impact Amendment" was originally written by Tenant Screening USA, and published by Disabled-World.com on 2015-06-23 (Updated: 2021-08-13). Should you require further information or clarification, Tenant Screening USA can be contacted at TenantScreeningUSA. Disabled World makes no warranties or representations in connection therewith.

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