When a city or town creates a policy or regulation, it has to ensure that the policy does not have a discriminatory result. If a “facially neutral” policy does have a discriminatory result a plaintiff can make a disparate impact claim. A prima facie case for disparate impact is made without a showing of discriminatory intent, instead a plaintiff can show discriminatory treatment or effect.
The plaintiff must show that the policy “actually or predictably results in racial discrimination.”
If a disparate impact is established, the burden is shifted to the defendant to show that it had sufficient justifications for the practice. The two most common justifications for a disparate impact are:
- Site specific – Here the court will ask if they made these justifications at the time the decision was made; the court will not allow after-the-fact justifications because the question is was your decision a violation of the FHA; are these justifications legitimate
- Plan specific – These justifications generally do not survive because most can be responded to with a less discriminatory alternative (i.e. redesign)
If the defendant establishes a sufficient justification for the disparate impact, the burden then shifts back to the plaintiff to show that these justifications do not negate the violation of Fair Housing Act (FHA).
Note, that if you can show discriminatory intent, you do not have to complete a disparate impact analysis.