Discrimination

Housing market discrimination is the wide variety of illegal acts, practices, and policies potentially undertaken by property owners or managers, real estate agents or their brokerage companies, neighboring households, nonprofit organizations, and governments at all levels that disfavor those seeking housing on the basis of one or more of their characteristics that are protected by law. Race, nationality, gender, religion, color, familial status, and disability are classes currently protected by federal law. Certain states and localities protect additional classes of home seekers, such as sexual orientation. Major federal civil rights statutes forming the foundation for current prohibitions of housing discrimination were passed in 1866, 1968, and 1988.

Housing market discrimination tries to make housing less desirable, affordable, profitable, and/or available to households who are victimized. At the individual level, housing market discrimination exacts a substantial psychological and economic toll from its victims. At the societal level, housing market discrimination on the basis of race perpetuates segregation of neighborhoods and the host of social ills that follow therefrom. Discriminatory acts continue to be perpetuated frequently in U.S. housing markets—federal, state, and local laws to the contrary notwithstanding. This entry shows what forms housing discrimination takes, why it occurs, how often it occurs, what harm it does, and legal issues surrounding efforts to eliminate it.

[Page 138]In broadest terms, acts, practices, and policies may be considered illegal housing discrimination if they constitute either differential treatment or disparate impact. Illegal differential treatment occurs when a minority home seeker is disfavored in comparison with an equally qualified White home seeker. Illegal disparate impact occurs when the following conditions are met. If the alleged discriminator is an individual or private entity, the plaintiff must first prove that the policy or practice in question has a statistically disproportionate negative effect on a minority group—in other words, even when equally applied, the policy or practice disfavors minorities because, on average as a group, they possess different attributes from Whites as a group. If this is proven, then the defendant is obligated to show that there is a business necessity for this policy or practice—that is, that it serves a sound, practical rationale. If this is proven, then the plaintiff must show that there is an alternative policy or practice that will serve the same business necessity but will have a less statistically disproportionate negative effect on the minority group. If the alleged discriminator is a public body (such as a government agency), the plaintiff must first prove a statistically disproportionate negative effect, as before. If this is proven, then the defendant must show that there is a “compelling public interest” for this policy or practice. This means that a government body can justifiably treat citizens differently only if it can substantiate a claim that it needed to do so to accomplish something important in the general public interest. The claim of compelling public interest can be defeated if a plaintiff can prove that the policy or practice was, in fact, intended to discriminate on the basis of race.

If any of the 20th century civil rights laws are used as the basis for alleging a fair housing violation, the plaintiff need not prove intent to win the case. However, the plaintiff can elect to claim that there was intent, often as a way of rebutting the defendant's claim of business necessity or compelling public interest. If the 1866 Civil Rights Act is used as the basis for alleging a fair housing violation, then intent must be proven for the plaintiff to prevail.

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