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disparate impact

A neutral policy has a discriminatory Impact on a protected class

What is Disparate Impact?

When a policy or procedure is neutral on it's face but the application of the policy favors one demographic group over another, we call that Disparate Impact.

Example: Property owner has a rule that says applicants must have a high school diploma before they can be considered eligible to rent a unit.

Neutral on it's face (ie. every applicant is treated the same way) but could have a disportional impact on any number of protected classes including racial minorities, single women with children, persons with disabilities.

Example: Local zoning code restricts rental to fewer than 3 unrelated individuals in certain areas

Neutral on its face, but has the effect of prohibiting group homes which serve persons with disabilities in certain areas.

Disparate impact always occurs in a context. Complainant must show real impact...not just potential for impact.

Disparate impact analysis is not required to show intent to discriminate, but the claim is stronger when intent can be shown.

Disparate impact is highly controversial because it is not specifically identified in statute although its well established in litigation.

Disparate impact is on the 'hot seat again because:

  • impending HUD guidance and fear mongering among owners groups that it will undermine criminal background checks, and

  • Manger case at the US Supreme Court claimed disparate impact to protect slumlords

 New Regulations issued

Court case could challenge Disparate impact
the case
the settlement
the analysis

Spencer Wells,
Jul 30, 2012, 10:22 AM