Relman, Dane & Colfax has filed two briefs in the closely watched case, Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Case No. 13-1371. The Supreme Court is expected in that case to decide whether the Fair Housing Act allows for disparate impact liability.
On behalf of the National Fair Housing Alliance (NFHA), the Center for Community Self-Help, and Hope Enterprise Corporation, the Firm argued that the Fair Housing Act’s disparate impact doctrine has played a vital role in making housing and related services available to all, while at the same time making the industries it regulates, such as the banking and property insurance industries, better at their jobs. For more than forty years, the federal courts have consistently construed the Act to bar not only intentional discrimination based on race or other protected classification, but also practices that disproportionately harm certain groups (such as African Americans) and do so without any legitimate business necessity. This ban on unnecessary disparate impact, the firm explained in NFHA’s brief, has encouraged the lending industry – which once denied loans based on subjective assessments of potential borrowers or requirements that, while facially race-neutral, were based on little more than stereotypes – to change its culture dramatically. The industry now systematically scrutinizes its procedures and requirements to ensure that they more precisely measure credit-worthiness and do not have unnecessary discriminatory impact. As a result, loans now are more widely available to populations historically denied them. At the same time, the lending industry has been able to identify a larger number of credit-worthy borrowers and thus has increased its profits.
On behalf of the National Association for the Advancement of Colored People (NAACP) and its Milwaukee Branch, the Firm addressed and rebutted specific arguments submitted to the Court by three property insurance trade organizations (the American Insurance Association, the National Association of Mutual Insurance Companies, and the Property Casualty Insurers Association of America). Specifically, the Firm argued on behalf of the NAACP that legitimate insurance practices are not threatened by disparate impact analysis. Rather, only those insurance practices that are not necessary to accomplish legitimate business needs are prohibited by a disparate impact basis for liability. The brief asserts that the insurance industry has a long history of unnecessarily discriminatory practices, and such practices continue today, giving disparate impact analysis continued importance in accomplishing the goals of Congress.