4. Fair Housing: What`s New?: Lauren Starlings
Transcription
4. Fair Housing: What`s New?: Lauren Starlings
Fair Housing Litigation Update What does Fair Housing Prohibit? In the sale or rental of housing, no one may take any of the following actions based on race, color, national original, religion, sex, familial status or handicap: Refuse to rent or sell housing; Refuse to negotiate for housing; Make housing unavailable; Deny a dwelling; Set different terms; Provide different housing services or facilities; Falsely deny that housing is available for inspection, sale or rental; For profit, persuade owners to sell or rent (blockbusting); or Deny anyone access to or membership in a facility or services related to the sale or rental of housing. Reasonable Accommodation If you or someone associated with you has a disability, a landlord may not: Refuse to let you make reasonable modifications to your dwelling or common use areas if necessary for the disabled person to use the housing; or Refuse to make reasonable accommodations in rules, policies, practices or services if necessary for the disabled person to use the housing. Reasonable Accommodation Who is a “person with a disability?” A person with a disability includes an individual (1) with a physical or mental impairment that substantially limits one or more major life activities; (2) who is regarded as having such impairment; and (3) with a record of such impairment. Reasonable Accommodation Examples… Parking spaces Transfer requests Live-in aides Assistance with application process Assistance animals in “no pet” buildings Reasonable Accommodation Assistance Animals In 2013 HUD ordered the Castillo Condominium Association in Puerto Rico to pay $20,000 in damages plus a $16,000 civil penalty for not allowing a resident to keep an emotional support animal. Early 2015, HUD charged a Brooklyn Co-Op with discriminating against a disabled veteran by not allowing his emotional support animal. Not just dogs… Reasonable Accommodation Parking Spaces Edward Tirrell filed a FHA complaint against Avatar Properties, Inc. after being denied access to the visitor’s parking lot Litigation is ongoing The company’s Board explained they had “spent a lot of money to update and clarify parking,” and did “not want to start making changes at this point.” Offered no alternative What is Disparate Impact ? Policies, practices, rules or other systems that while neutral on their face may result in a disproportionate impact on a protected class. Disparate Impact Twp. of Mount Holly v. Mt. Holly Gardens Citizens in Action About the Case – Mount Holly Township declared the Gardens blighted and began plans for redevelopment New homes would cost in excess of $200,000 Disparate Impact Magner v. Gallagher About the Case – Gallagher sued the City of St. Paul alleging the City’s strict enforcement of city housing codes against rental units reduced the availability of low-income rentals, having a disparate impact on African Americans and violating the Fair Housing Act. Disparate Impact HUD’s Final Rule – 24 CFR Part 100 Formalizes the availability of “discriminatory effects” liability under the Fair Housing Act, 42 U.S.C 3601 et seq. Actually or predictably results in a disparate impact on a group of persons, increases, reinforces or perpetuates segregated housing patterns because of race, color, religion, sex, handicap, familial status or national origin. Established a three-part burden-shifting test: 1. 2. 3. Prima facie case; Challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests; Substantial, legitimate, nondiscriminatory interest could be served by a practice that has a less discriminatory effect. Disparate Impact American Insurance Association, et al. v. HUD, et al. About the Case –two industry trade associations whose members sell homeowner’s insurance sued the Agency in response to HUD’s final rule indicating the provision and pricing of homeowner’s insurance as potentially having a disparate impact. In 2014 the Federal District Court in Washington, D.C. vacated HUD’s new disparate impact rule “This is yet another example of an Administrative Agency trying desperately to write into law that which Congress never intended to sanction.” Court focused on language like “refuse” and “deny” and pointed out the lack of any language involving the results or effect of conduct. Pointing to the ADA and the Civil Rights Act the court noted that Congress knows how to “explicitly provide for disparate impact claims by using clear effects-based language.” Disparate Impact The Inclusive Communities Project, Inc. v. Texas Department of Housing & Community Affairs, et al. About the Case – Inclusive Communities alleges the Texas Department of Housing & Community Affairs allocated tax credits in a racially segregated way by disproportionately granting housing credits in minority areas of Dallas and disproportionately denying them in the affluent suburban areas. Arguments – Texas Department of Housing & Community Affairs – Text of FHA is different from other statutes that explicitly allow disparate impact Specifically the wording “because of race” The Inclusive Communities – deference to HUD’s interpretation, look at the goal of the FHA Solicitor General (for HUD) – Defendants still have protection in the burden-shifting test because plaintiffs must point to a “specific practice” and at the very least, it isn’t clear (significant weight to HUD’s regulations) Disparate Impact The Court – Roberts – noted difficulty differentiating “good” impacts and “bad” ones (integration v. primary benefit) Scalia – “whole law” and figure out “what makes sense” but also noted that racial disparity is not the same as discrimination Ginsburg – noted “grand goal” of FHA Kagan – 1988 Exemptions Sotomayor – 1988 Exemptions Breyer – “helpful to many people” in 30 plus years, why should SCOTUS step in now Alito – suggested HUD’s regulations were only in response to the Court agreeing to decide the disparate impact question Decision – Expected late June or early July 2015 Affirmatively Furthering Fair Housing Proposed Rulemaking on Affirmatively Furthering Fair Housing HUD will provide data, guidance and an assessment template from that there would be an assessment of fair housing (the AFH) which would then be linked to the PHA Plans and Capital Fund Plans. Data will include information on: Historic patterns of segregation; Racial and ethnic concentrations of poverty; Access to community assets; Exposure to environmental hazards; and Disproportionate housing needs by protected class. Submitted to HUD on the same schedule as the Consolidated Plan (at least 270 days before the state of the program year – shortened to 195 for subsequent AFHs). HUD will accept or provide reasons for its rejection within 60 days. Findings and plans should be incorporated into the Con Plan Resources http://www.justice.gov/crt/about/hce/jointstatement_ra.php http://portal.hud.gov/hudportal/HUD?src=/press/press_releases_media_advisories/2014/HUDNo_14-142 http://portal.hud.gov/hudportal/HUD?src=/press/press_releases_media_advisories/2015/HUDNo_15-002 http://www.huduser.org/portal/affht_pt.html http://blog.hud.gov/index.php/2015/04/21/fair-housing-month-focus-on-disability-discrimination/ http://www.justice.gov/crt/about/hce/documents/avatarcomp.pdf https://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2013-01.pdf http://www.scotusblog.com/2015/01/will-the-third-time-be-the-charm-for-the-fair-housing-act-and-disparate-impact-claims-in-plainenglish/