scales-justice-149795790-ts-250On June 25 the Supreme Court held that FHA discrimination claims can be based on disparate impact. Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc.,  2015 WL 2473449, at *9 (U.S. June 25, 2015). At first blush this doesn’t seem to have much to do with accessibility claims. When we talk about the policies that discriminate against those with disabilities we usually look at 42 U.S.C. Section 3604(f)(3)(B), which requires reasonable accommodation; that is, exceptions to a policy because the policy has a disproportionate impact on those with disabilities. However, Inclusive Communities Project may have its own disparate impact on claims of disability discrimination.

A “disparate impact claim” is one that avoids proof of intent to discriminate with proof that policies or practices have a ” ‘disproportionately adverse effect on minorities’ and are otherwise unjustified by a legitimate rationale. . . .” 2015 WL 2473449, at *3. The target of such claims are policies or procedures that impose “artificial, arbitrary, and unnecessary barriers” to minorities. 2015 WL 2473449, at *15.  In Inclusive Communities Project the claim was that a practice of placing low income housing in the inner city had a disproportionate impact on minorities even though the practice itself might not have been motivated by a discriminatory intent. The Supreme Court did not agree with the claim; it simply held that traditional “disparate impact” analysis could be used to decide if there was actionable discrimination.

An important ground for the decision was language that appears in parts of the FHA that apply to disability discrimination. The phrase “otherwise make unavailable” in Section 3604(a) justified a finding that the courts could look at the effect of a policy or practice without looking at intent. That phrase also appears in Section 3604(f)(1), the basic prohibition on disability discrimination, and some lower courts already apply disparate impact analysis to disability claims under the FHA. See, Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 574 (2d Cir. 2003).

The application of disparate impact analysis to disability discrimination claims will create real problems for  property owners and developers. Discrimination by failure to “reasonably accommodate” requires proof that an individual seek and be refused accommodation. A “disparate impact” claim would only require proof that a practice or policy discriminated against those with disabilities without proving the owner or developer refused to change it. Even more significant, “reasonable accommodation” claims include the element of reasonableness. A costly accommodation may not be reasonable. “Disparate impact” claims acknowledge that policies may be  less than “artificial, arbitrary and unnecessary” but don’t necessarily count cost as a factor in the same way.

For developers of single family properties the possible problems are acute. Single family homes are generally excluded from the physical access requirements in Section 3504(f)(3)(C) of the FHA. Thus, for example, a single family home doesn’t have to have a 36 inch entry door with a lowered threshold. However, a builder’s practice of installing 34 inch entry doors in single family homes arguably has a “disparate impact” on those with disabilities because such doors can be too narrow for a wheelchair. The same would be true of any narrow interior door or hallway. “Disparate impact” analysis could turn ordinary single family building practices into actionable discrimination, and therefore pull all the physical accessibility requirements into the general prohibition against disability discrimination. Neither cost nor consumer preferences would necessarily provide a defense.

The Inclusive Communities Project decision includes many limitations on the use of disparate impact in Fair Housing Act cases; in fact, the discussion of the limits of the decision takes up as much of the opinion as the discussion of the reasons for it. There are also good reasons to find that Congress did not intend that disparate impact claims would arise under Section 3604(f), the strongest being that the “reasonable accommodation” provision explicitly recognizes that policies may have a disparate impact and creates a remedy for that disparity. Nonetheless, it seems likely that disabilities rights groups will use Inclusive Communities Project as a rationale for filing cases against single family developers, because single family housing is one of the most important current targets for those in the disabilities rights community.

There are partial solutions to these possible problems; for example, policies that might have an impact on the disabled can be modified to include specific exceptions for those with disabilities, preempting the claim of disparate impact. Developers might consider offering accessibility options at no additional cost, which would at least help eliminate claims related to new construction for disabled customers. In the end though, application of disparate impact analysis to claims of disability discrimination under the FHA has the potential to create a new class of lawsuits and expand the range of target defendants beyond the multi-family owners and developers that have been the most common target of FHA disability discrimination claims.