Fair 

I thought about holding a contest to see who might be able to come up with what I believe may be the two most important words for fair housing this year.  But being generous of heart and spirit, I am simply going to tell you the two words, and then (not so simply, but still understandably, I hope) I will explain my rationale. 

Two words – disparate impact.  You, dear reader, are not an attorney so that sounds boring (I totally get it).  Why should you care?  Because those two words may result in your having to change policies and procedures at your community.  Say what!?

All right.  Let’s get the tedious part over with.  The definition of disparate impact goes like this: the adverse effect of a practice or standard that is neutral and non-discriminatory in its intention, but, nonetheless, disproportionately affects individuals who belong to a particular group that is protected under the law.  (Yawn – but please do not stop reading!)

An example:  Many years ago, it was a standard of many businesses that employees were required to be “clean-shaven” – no facial hair whatsoever.  This was a policy that was “neutral and non-discriminatory” because it was applied to everyone – no particular group of people was told “you can’t have facial hair”, everyone was told that.  Now I share two more words with you: pseudofolliculitis barbae (not to be confused with “supercalifragilisticexpialidocious”).This is most common on the male face; after being shaved off, hair begins to grow back. Coarse and curly hair tends to curl into the skin instead of straight out the follicle, leading to an inflammation reaction and possibly keloid scarring.  Who tends to have naturally coarse or tightly curling hair? Men of African, Mediterranean and Near Eastern descent.  

So here comes Domino’s Pizza (no, not a delivery), requiring its employees to be clean shaven.  A policy that is neutral (for everyone) and not intended to be discriminatory under employment law.  But (1) because African American males suffer from pseudofolliculitis barbae more than Caucasian males, and (2) because employment law does have a “disparate impact” component, the court found that Domino Pizza’s no-beard policy violated the 1991 Civil Rights Act, Title VII.

OK – Let me get to the point.  Right now, fair housing law does not have a “disparate impact” component.  But the Supreme Court will hear a case (Gallagher v. Magner) and likely by this spring (2012) rule on whether disparate impact should be part of fair housing law.  And HUD is looking at incorporating such a standard.  If disparate impact becomes the standard, there are practical implications.  The industry may not be able to require criminal background checks (just as certain protected employment groups were unintentionally impacted by the “clean shaven” policy, certain protected housing groups are more likely to have criminal backgrounds).  Could this be applied to income standards?  Possibly, as certain groups earn less.  (If I show you that I historically pay my rent on time, what does my income really matter?)  Are there other areas that could be impacted – I would imagine so.

It is not a sexy case, Gallagher v. Magner.  It will not get a lot of general press.  But depending on the Supremes and HUD, change is possible in the wind.  You may need to adjust your sails.