The Journal of College and University Student Housing - Volume 44, No. 3 - 17

Background Checks in Housing

african-american and latinx communities
remain hyper-segregated in urban areas, and
audit studies show that discrimination in the
housing market persists (massey, 2015; huD,
2013b). the fha, as it seems, is still a necessary policy in 21st century america (seicshnaydre, 2013; yinger, 1999).

Discriminatory Effects
from the beginning, the fha has been interpreted to outlaw both disparate-treatment
discrimination, which is the deliberate discrimination against a person from a protected class,
and disparate-impact discrimination, which is
the unjustified discriminatory effect of facially
neutral practices, regardless of intent (seicshnaydre, 2013; yinger, 1999). Disparate impact
theory, or discriminatory effects liability-as it
is more commonly known, is the focus of analysis in this paper. as defined in law:
A practice has a discriminatory effect
where it 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. (Discriminatory Effect, 2013,
para. 2)
Citing the agreement of the 11 federal
courts of appeals on this principle, huD
issued a new rule in 2013 that codified "its
long-held recognition of discriminatory effects
liability under the [fha]" and "formalize[d] a
burden-shifting test for determining whether
a given practice has an unjustified discriminatory effect, leading to liability under the act"
(huD, 2013a, p. 11460). the discriminatory
effect test follows three steps (Discriminatory

effect, 2013). first, a plaintiff must establish
a prima facie case of disparate treatment,
meaning the plaintiff must prove that "a challenged practice caused or predictably will cause
1
a discriminatory effect." statistical proof is required to make this claim, such as demonstrating that a higher proportion of people from a
protected class are disparaged by the practice
than the proportion of people from that class
in the general population (allen, Crook, &
relman, 2014). second, if the plaintiff succeeds, the burden shifts to the defendants who
must prove that the "challenged practice is
necessary to achieve one or more substantial,
2
legitimate, nondiscriminatory interests." the
defendant must use evidence to demonstrate
that their interests are not merely hypothetical or speculative and that their practice accomplishes those interests (allen, Crook, &
relman, 2014; Kanovsky, 2016). third, if the
defendant succeeds in defending their practice, the plaintiff finally must prove that an
alternative, less discriminatory practice exists
that would achieve the defendant's legitimate
3
interests. a plaintiff can achieve this by researching other practices used in industry and
by using the discovery process to collect information from the defendants about the practices they used or considered using that might
be suitable, less discriminatory alternatives.
however, few disparate impact cases persist to
the third step, because most are resolved after
step one (plaintiff fails to establish prima facie
case) or after step two (defendant fails to establish a legally sufficient justification for the
challenged practice) (allen, Crook, & relman,
2014). With this newly-codified test, plaintiffs
have a clear method for challenging discriminatory housing practices in court.

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The Journal of College and University Student Housing - Volume 44, No. 3

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