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).