This Toolkit provides a basic overview of the concept of "disparate impact" as applied to housing, discusses HUD's 2013 regulation, and links to important related materials.

  What is Disparate Impact?

Disparate Impact is defined as a practice that "actually or predictably results in a disparate impact on a group of persons or creates, increases, reinforces, or perpetuates segregated housing patterns because of race, color, religion, sex, handicap, familial status, or national origin."

 What are some examples of policies likely to have a Disparate Impact?

• Example 1: A housing program that locates affordable units overwhelmingly in neighborhoods of color that have high rates of poverty and not in areas that are predominately White and higher income.

• Example 2: A town that is 90% White but in a region that is only 65% White institutes a residency preference for affordable housing. This essentially creates a preference for people who are White.

• Example 3: A town decision to prohibit the creation of multifamily housing in a state where such more-affordable housing is disproportionately needed by people of color who, on average, earn significantly less than White residents.

 Legal Underpinnings

  The Law

"it shall be unlawful . . . [t]o refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin." (42 U.S.C. 3604) 

 The Regulation

In February of 2013, HUD issued its regulation on disparate impact. This regulation further defined disparate impact obligation of the the Fair Housing Act of 1968, and lays out a framework for the burden-shifting standards that should be applied by courts when considering disparate impact claims. The final disparate impact regulation is available here.

 Case Law

• The legal concept of disparate impact was confirmed in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., where the Supreme Court held that disparate impact claims are permitted under the Fair Housing Act. 

• Additional Federal Case Law
  
  
  • Huntington Branch NAACP et al. v. Town of Huntington (Second Circuit, 1988)
    
    
  • MHANY Management Inc. v. Garden City (Eastern District of NY, 2014)
    
    
  • Jeffrey J. Viens, et al., v. America Empire Surplus Lines Ins. Co. (District of Connecticut 2015)
    
    
  • Carter v. Housing Authority of the Town of Winchester (Complaint, Case Update)