October 28, 2013

In a brief filed today, Attorney General George Jepsen has joined with 11 other state attorneys general in urging the U.S. Supreme Court to recognize disparate impact claims under the federal Fair Housing Act (FHA).

The attorneys general argue that individuals and businesses involved in the renting or selling of homes must be held accountable for the discriminatory effects of their policies and practices. The brief highlights the experience of some states in pursuing disparate impact claims against banks and mortgage companies that made high-risk subprime mortgage loans to distressed minority borrowers and cites two Connecticut cases where landlord policies caused a disparate impact.

“In this brief, my colleagues and I urge the court to uphold the circuit court opinions that disparate impact discrimination claims are recognizable under the Fair Housing Act,” said Attorney General Jepsen. “Our states share an interest in protecting our residents and communities against the social and economic harm of housing discrimination, and disparate impact claims are essential to combating that discrimination.”

A disparate impact claim may be pursued when a policy that appears to be objective or neutral leads to results that disproportionately affect a protected group. For instance, the cases involving subprime lenders challenged seemingly neutral policies that in actuality caused African American and Hispanic borrowers to pay significantly more for their loans than comparable white borrowers.

The brief argues that “not all adverse housing outcomes, or all causes of residential segregation, can be remedied through litigation. But enforcement actions under FHA and similar state laws are critical to combating discrimination and its pernicious effects. Disparate impact claims are needed to bridge between the direct forms of discrimination provable through a disparate treatment framework, and more subtle forms of discrimination characterized by concealed and subconscious bias – all of which continue to operate in and shape housing markets.”

The FHA was enacted in 1968 and amended in 1988. It protects individuals from discrimination in the sale and rental of housing, as well as other housing-related transactions, on the basis of race, color, gender, national origin, disability, religion and familial status.

The amicus brief was submitted in the case of Township of Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc., which is scheduled for argument on December 4, 2013. The brief, led by Massachusetts, includes the states of Connecticut, California, Delaware, Hawaii, Illinois, New Mexico, New York, Oregon, Utah, Vermont and Washington.

Solicitor General Gregory T. D’Auria and Assistant Attorney General David Teed are assisting the Attorney General in this matter.

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