Fair Housing Act - Disparate Impact Case


The justice system in the United States allows for those facing a crime in New York, Federally and throughout the rest of the states to have due process, the ability to have a fair trial, present evidence and defend the charges. Once convicted of a crime, however, many lose their rights. The 13th Amendment of the United States Constitution makes this explicit. By plea or by trial, many suffer the loss of constitutional freedoms through conviction. Jackson v. TRYON PARK APARTMENTS, INC., Dist. Court, WD New York 2019, highlights some of these issues.

To combat discrimination against those who suffered criminal convictions, New York State has developed a set of laws (New York State Executive Law, New York State Human Rights Law, etc.) that coincide with Federal Law. The Federal Housing Act (FHA) combats this form of discrimination. As Michelle Alexander writes in her book "The New Jim Crow," the legalized discrimination against those in housing continues to permeate on the basis of felony conviction but changes in the law have been made:

The United States Department of Housing and Urban Development ("HUD") promulgated a regulation on March 18, 2013, establishing liability under the FHA for disparate impact claims based on "race, color, religion, sex, handicap, familial status, or national origin." 24 C.F.R. § 100.500. On June 25, 2015, the United States Supreme Court issued a decision upholding this regulation in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015), holding "that disparate-impact claims are cognizable under the Fair Housing Act." Id. at 2525. On April 4, 2016, HUD issued a document titled "Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions" (the "HUD Guidance Document"). (Dkt. 8-2 at 5). The HUD Guidance Document "addresses how the discriminatory effects and disparate treatment methods of proof apply in Fair Housing Act cases in which a housing provider justifies an adverse housing action—such as a refusal to rent or renew a lease— based on an individual's criminal history." (Id.).

The Plaintiff in this lawsuit is a black male who suffered a felony conviction. As in the New Jim Crow, this gentlemen is now subject to a group of laws that disenfranchise, not persons by race but persons who are convicted felons whom, in the United States, are disproportionately black/African American. "On or about March 24, 2016, Plaintiff submitted a rental application to Tryon Estates, which is owned by Tryon Park and managed by Rochester Management." Plaintiff did his time and was returned to society. His application was properly submitted. Plaintiff did not have a bad credit score and he complied with what was required of any applicant but his application was denied:

On or about April 1, 2016, Plaintiff received a letter dated March 31, 2016, from Irene S. Schueler, the Manager of Operations of Rochester Management. (Id. at ¶ 24). The letter explained that the tenant selection committee had not approved Plaintiffs application "due to a felony" on Plaintiff's criminal record, and that Plaintiff could contact the office receptionist with questions or make an appointment for a personal interview. (Id. at ¶ 25). Plaintiff called Defendants' office that day and requested an appeal of the denial of his application. (Id. at ¶ 26). During the conversation, Plaintiff was told that the matter would be looked into and that he would receive a return call. (Id.). Plaintiff again called Defendants' office on April 4, 2016, to request an appeal; however, Plaintiff was never granted an appeal and was informed that no one would meet with him regarding the denial of his application. (Id. at ¶ 27).

Plaintiff files suit. He alleges discrimination based upon disparate impact. Plaintiff alleges that "the policies and practices [of Defendants] have a disparate impact on applicants for housing, on the basis of race and color" (id. at ¶ 2), because "[e]mpirical evidence shows that nationally, and in New York State, blanket bans on eligibility, based on criminal history, result in the denial of housing opportunities at a disproportionate rate for African Americans and minorities" (id. at ¶ 32). As with many other scholars, the Plaintiff alleges that this facially neutral policy of eliminating convicted felons disproportionately impacts black/African American persons because black/African American persons disproportionately suffer felonious convictions:

Section 804(a) of the FHA makes it unlawful "[t]o refuse to sell or rent . . . or otherwise make unavailable or deny, a dwelling to any person because of race, color, . . . or national origin." 42 U.S.C. § 3604(a). "[D]isparate-impact claims are cognizable under the Fair Housing Act. . . ." Inclusive Communities Project, 135 S. Ct. at 2525; 24 C.F.R. § 100.500 ("Liability may be established under the Fair Housing Act based on a practice's discriminatory effect . . . even if the practice was not motivated by a discriminatory intent."); see Anderson Group, LLC v. City of Saratoga Springs, 805 F.3d 34, 49 (2d Cir. 2015) ("[W]e recognize[] that an FHA violation could be established through a showing that a facially neutral rule or policy had a discriminatory effect on a protected class."). To establish a prima facie case of disparate impact, the plaintiff must allege "(1) the occurrence of certain outwardly neutral practices, and (2) a significantly adverse or disproportionate impact on persons of a particular type produced by the defendant's facially neutral acts or practices." Mhany Management, Inc. v. County of Nassau, 819 F.3d 581, 617 (2d Cir. 2016) (quotation omitted). "[A] disparate-impact claim that relies on a statistical disparity must fail if the plaintiff cannot point to a defendant's policy or policies causing that disparity." Inclusive Communities Project, 135 S. Ct. at 2523.

Defendants moved to dismiss (that the Court should not even hear the case and that the Plaintiff should have no redress in this Court for failing to state a valid cause of action, a valid complaint) and the Court denies the motion on both state and federal grounds, explaining, in regards to the FHA claim, that

Because the statistical racial disparity that Plaintiff relies on is directly related to Defendants' policy of excluding a person with a felony conviction from renting at Defendants' property, Plaintiff has plausibly alleged a disparate impact claim under the FHA. See Meyer v. Bear Road Assoc., 124 F. App'x 686, 689 (2d Cir. 2005) (holding the plaintiffs properly established a claim of disparate impact because the complaint alleged that defendants' rental pricing policy led to under-representation of families with children); Gashi v. Grubb & Ellis Prop. Mgmt. Servs., Inc., No. 3:09-C1037 (JCH), 2010 WL 2977143, at *1 (D. Conn. July 21, 2010) (holding the plaintiffs had properly established a prima facie case of disparate impact because they alleged that defendants' policy had a disproportionate impact on families with children); see also Sams v. Ga West Gate, LLC, No. CV 415-282, 2017 WL 436281, at *5 (S.D. Ga. Jan. 30, 2017) (holding the plaintiffs had properly alleged a disparate impact claim against the defendants' criminal history policy which barred from residency individuals with criminal convictions); Alexander v. Edgewood Mgmt. Corp., No. 15-01140 (RCL), 2016 WL 5957673, at *2-3 (D.D.C. July 25, 2016)(holding the plaintiff alleged a valid disparate impact claim because he alleged that the defendants' policy of rejecting rental applicants based on their criminal history had a disparate impact on a protected class).

The Case is Jackson v. TRYON PARK APARTMENTS, INC., Dist. Court, WD New York 2019. Call The Law Offices of Cory H. Morris, 631-450-2515 (NYS) | (954) 998-2918 (FLA) - representing people facing accident, accountability and addiction matters - because the problems surrounding a criminal charge do not necessarily end in a criminal court anymore...


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