United States Supreme Court Takes On Broad Reaching Fair Housing Issue

In 1866, Congress passed the first Civil Rights Act intended to guarantee equal housing opportunities to all citizens regardless of race or color.

Starting in 1968, the United States Congress passed Fair Housing Laws making it illegal to refuse to sell, rent “or otherwise make unavailable or deny” a property to anyone because of race, color, religion, national origin, sex, disability, and family status. States and local governments have broaden the categories of protected classes, including New York State and Nassau and Suffolk Counties.

On January 21, 2015, the Supreme Court agreed to address the issue: does the law require that the discrimination be intentional, or does it allow plaintiffs to claim “disparate effect,” a discriminatory effect regardless of intent?

An editorial published in the January 22, 2015 issue of the “New York Times” stated: “If ever there was a legal issue that appeared to be settled, this is it. Over four decades, every one of 11 federal appeals courts to consider the law has found that it covers claims of discriminatory effect.”

On December 6, 2013 the U.S. Eastern District Court of N.Y. arrived at that conclusion in Mhany Management Inc. v. Incorporated Village of Garden City located in Nassau County. In that case, a significant number of residents voiced their opposition to a zoning change that would result in the construction of a number of multi-family units that would be more affordable to people of incomes lower than the Village’s current residents. It demonstrated that the Village had a minority population well below the norm of other Nassau County communities, had no Federally-Assisted Section 8 tenants, and had turned down government incentives to develop affordable housing. The Court also inferred that the Board of Trustees capitulated to the protests of the community residents. Under the theory of disparate treatment, “a plaintiff can establish a prima facie case by showing that animus against a protected group was a significant factor in the position taken by the municipal decision-makers themselves or by those to whom the decision-makers were knowingly responsive.” It further stated. “A decision-maker has a duty not to allow illegal prejudices of the majority to influence the decision-making process. A discriminatory act in no less illegal simply because it enjoys broad public support.”

Race is not the only issue that may presumably give rise to claims of disparate treatment. A community’s preference for senior citizen housing, for instance, may give rise to a claim of disparate effect for families with children, which are also protected under the Federal Fair Housing Act. Residential co-ops that have received tax benefits for making a percentage of units available to purchases of lower income but don’t have access to the same amenities as those who paid more for their units and as well as higher maintenance fees, is claimed, by some, to constitute disparate effect.

The pending Supreme Court decision is of grave concern to Fair Housing advocates as well as local governments. On two previous occasions the Court had agreed to review cases but both were settled between the parties. The pending case gives the Court its opportunity to address the issue.