Civil and Human Rights

CAC Urges Congress to Protect the Disparate Impact Standard

Disparate impact liability, a longstanding part of the Fair Housing Act (Act), prohibits the use of arbitrary, harmful policies that, though facially neutral, have an unjustified discriminatory effect. Disparate impact liability has played a critical role in protecting civil rights, advancing equal opportunity, and addressing the segregation that still persists in America. HUD’s Current Rule interpreting the Act’s disparate impact standard helps make housing accessible for women, LGBTQ+ people, people with disabilities, people of faith, people of color, and families with children, ensuring that the Act’s promise of equal housing opportunity is a reality for all people. It does this by requiring banks, landlords, and other housing providers to choose policies that apply fairly to all people. Some facially neutral policies can unfairly exclude certain groups of people or segregate particular communities in practice. Disparate impact liability requires the elimination of artificial barriers to equal opportunity for all. It allows us to identify and prevent harmful, inequitable, and unjustified policies, thereby ensuring that everyone can be treated fairly.

The text and history of the Fourteenth Amendment give Congress authority to enact laws that, like the Fair Housing Act, prohibit state action neutral in form, but discriminatory in operation, as a means of realizing the promise of equal opportunity contained in the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause provides broadly that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” To ensure that this guarantee is a reality, Section 5 of the Fourteenth Amendment provides that Congress shall have “the power to enforce, by appropriate legislation, the provisions of” the Amendment. Consistent with this core guarantee of equality for all persons, Congress has repeatedly used its express power to enforce the Fourteenth Amendment to prevent state and local governments from enacting laws and policies that result in an unjustified, disproportionate impact on people of color, recognizing that sometimes the simple prohibition of disparate treatment is insufficient to realize the Fourteenth Amendment’s goal that all persons enjoy “equal protection of the laws.” Using a robust disparate impact standard brings us further along the arc of progress marked by the amendments to our nation’s founding document.

More from Civil and Human Rights

Civil and Human Rights
January 13, 2025

CAC RELEASE: At Stanley Oral Argument, Questioning Focuses on Narrow Ground for Resolving Employment Discrimination Case in Favor of a Retiree with a Disability

WASHINGTON, DC – Following oral argument at the Supreme Court this morning in Stanley v....
Civil and Human Rights
December 30, 2024

Top Contributor Essays of 2024

The Regulatory Review
The Regulatory Review is pleased to revisit our top regulatory essays of 2024, each authored by...
Civil and Human Rights
December 5, 2024

Podcast (We the People): Can Tennessee Ban Medical Transitions for Transgender Minors?

National Constitution Center
A Tennessee law prohibits transgender minors from receiving gender transition surgery and hormone therapy. Professor Kurt...
Civil and Human Rights
December 4, 2024

RELEASE: Supreme Court Should Not Turn Equal Protection Clause on its Head in Case about Medical Care for Transgender Adolescents

WASHINGTON, DC – Following oral argument at the Supreme Court this morning in United States...
Civil and Human Rights
U.S. Court of Appeals for the Ninth Circuit

Payan v. Los Angeles Community College District

In Payan v. Los Angeles Community College District, the Ninth Circuit is considering whether lost educational opportunities are compensable under Title II of the Americans with Disabilities Act. 
Civil and Human Rights
U.S. Supreme Court

Stanley v. City of Sanford

In Stanley v. City of Sanford, the Supreme Court is considering whether the Americans with Disabilities Act protects against disability discrimination with respect to retirement benefits distributed after employment.