There are 2 types of claims under the FHA: (1) disparate treatment and (2) discriminatory impact or effect. The proof required depends on the type of claim.

Rarely will a landlord expressly announce a discriminatory intent before engaging in disparate treatment (i.e., intentional discrimination), so an advocate must use alternate avenues of proof, typically through the burden-shifting framework common to discrimination law.

In the FHA context, this framework first requires a plaintiff who has been denied housing to make out a prima facie case.1  The required elements are (1) membership in a protected class; (2) actual application2  for a unit for which the plaintiff was qualified to rent or purchase;3  (3) rejection by the defendant; and (4) the continued availability of the unit thereafter.4  The defendant must then show a legitimate nondiscriminatory reason for the adverse action. If this burden is met, the plaintiff must show that the “legitimate reasons were a pretext” for discrimination. Pretext may be proven with “testing” evidence.5  For information on testing services that may be available in your area, contact the Louisiana Fair Housing Action Center, Ph. (504) 596-2100.

In mixed motive cases, the housing decisions are based only in part on a prohibited motive. All federal courts of appeals have held that the FHA is violated even if race is just one of the motivating factors.6

• 1See, e.g., HUD ex rel. Herron v. Blackwell, 908 F.2d 864, 870–71 (11th Cir. 1990).
• 2An application may be unnecessary under the futile gesture doctrine. Punchback v. Armistead Homes Grp., 907 F.2d 1447 (4th Cir. 1990).
• 3Plaintiff should be financially qualified for the unit.
• 4Testers can be used to prove this element.
• 5Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982).
• 6See, e.g., Payne v. Bracher, 582 F.2d 17, 18 (5th Cir. 1978); HUD v. Denton, FH-FL Rptr. 25,024, 1992 WL 406537 (HUD ALJ 1992). For more on mixed motive cases, see C. Giles, Shaking Price Waterhouse: Suggestions for a More Workable Approach to Title VIII Mixed Motive Disparate Treatment Discriminatory Cases, 37 Ind. L. Rev. 815 (2004).

There have been two broad types of discriminatory effect cases: (1) perpetuation of segregation (e.g., Huntington Branch, NAACP v. Town of Huntington)1  and (2) discriminatory impact (Betsey v. Turtle Creek Associates).2

In 2015, the U.S. Supreme Court affirmed that disparate impact claims are cognizable under the Fair Housing Act.3  In its decision, the Court cited favorably the burden-shifting test in HUD’s 2013 discriminatory effects rule, though it declined to settle the issue of what test should apply. After the Trump Administration substantially rolled back the rule in 2020, the Biden Administration reinstated it in 2021.4

HUD’s burden-shifting is as follows: (1) The plaintiff or charging party is first required to prove as part of the prima facie showing that a challenged practice caused or predictably will cause a discriminatory effect. (2) If the plaintiff or charging party makes this prima facie showing, the defendant or respondent must then prove that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the defendant or respondent. And (3) If the defendant or respondent meets its burden at step two, the plaintiff or charging party may still prevail by proving that the substantial, legitimate, nondiscriminatory interests supporting the challenged practice could be served by another practice that has a less discriminatory effect.

Despite the Supreme Court’s favorable citation to this standard, the Fifth Circuit has applied a more restrictive “robust causation” test. This test requires that either “a change in the defendant's enforcement of [a] policy” caused a disparate impact or that a challenged policy “caused [the relevant minority group] to be the dominant group” of those affected by the policy.5  The robust causation requirement references the Supreme Court’s emphasis that where a claim relies on a statistical disparity, the claim “must fail if the plaintiff cannot point to a defendant’s policy or policies causing that disparity.”6  This is a developing area of the law.

• 1844 F.2d 926 (2d Cir. 1988).
• 2736 F.2d 983 (4th Cir. 1984).
• 3Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 576 U.S. 519 (2015).
• 486 Fed. Reg. 33590 (June 25, 2021).
• 5Inclusive Cmtys. Project, Inc. v. Heartland Cmty. Ass’n, 824 F. App’x 210, 217 (5th Cir. 2020) (citing Inclusive Cmtys. Project v. Lincoln Prop. Co., 920 F.3d 890 (5th Cir. 2019) and declining to overrule that widely questioned decision).
• 6Tex. Dep’t of Hous. & Cmty. Affairs, 576 U.S. at 542.