Recently, following the U.S. Supreme Court's grant of certiorari, more than a dozen organizations, groups, and associations filed separate amicus curiae briefs in support of the notion that the Fair Housing Act (FHA) does not provide disparate-impact liability. These groups, arguing in support of the petitioner, the Texas Department of Housing and Community Affairs (Texas DHCA), include the insurance industry (American Insurance Association), the construction industry (National Association of Home Builders), and housing authorities (Houston Housing Authority). The Houston Housing Authority's brief, which Ballard Spahr drafted, can be accessed here

To many of these entities, FHA disparate-impact liability stymies efforts to provide a non-discriminatory and facially neutral review of residential mortgage applications, insurance risk assessment and premiums, federally mandated background checks for public housing subsidy programs, and construction of affordable housing projects for low-income and minority communities. As noted by many of the amici, the danger in FHA disparate-impact liability is that it prevents groups from effectively serving the very individuals the Fair Housing Act aims to protect.

One week earlier, the Texas DHCA filed its merits brief arguing that FHA disparate-impact liability should not be recognized for many of the same reasons as amici. The Texas DHCA's brief also argued that the Supreme Court's 1971 plurality opinion in Griggs v. Duke Power Co. has proven unmanageable and should be overruled or ignored. Should the Court entertain the Texas DHCA's Griggs argument, this case could influence more than three decades of Title VII anti-discrimination law.

The respondent's brief is due later this month, and oral argument has been scheduled for Wednesday, January 21, 2015. Ballard Spahr will continue to monitor and provide updates as briefing concludes and oral argument approaches. An online directory of the merit and amicus briefs is available here.

Ballard Spahr's Housing Group is nationally recognized for its leadership in the development and financing of housing, community development, energy, public/private partnerships, and transportation projects. The firm's Consumer Financial Services Group has created a Fair Lending Task Force that brings together regulatory attorneys who deal with fair lending law compliance (including the preparation of fair lending assessments in advance of Consumer Financial Protection Bureau examinations), litigators who defend against claims of fair lending violations, and attorneys who understand the statistical analyses that underlie fair lending assessments and discrimination claims.

For more information, please contact Fair Lending Task Force Leader Christopher J. Willis at 678.420.9436 or willisc@ballardspahr.com or John L. Culhane, Jr., at 215.864.8535 or culhane@ballardspahr.com.


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