A neutral practice can violate the Fair Housing Act through its effect alone, and the justification must be evidenced rather than asserted

xp.fair_housing.discriminatory_effect_and_the_three_step_burden · v1.0.0

Liability may be established under the Fair Housing Act based on a practice's discriminatory effect even if the practice was not motivated by discriminatory intent. A practice has a discriminatory effect where it actually or predictably results in a disparate impact on a group of persons, or creates, increases, reinforces or perpetuates segregated housing patterns, because of race, color, religion, sex, handicap, familial status or national origin. The practice may still be lawful if supported by a legally sufficient justification: it must be necessary to achieve one or more substantial, legitimate, nondiscriminatory interests, and those interests could not be served by another practice with a less discriminatory effect. A legally sufficient justification must be supported by evidence and may not be hypothetical or speculative. The burdens run in three steps -- the charging party or plaintiff proves the effect; the respondent or defendant proves necessity; the charging party or plaintiff may still prevail by proving a less discriminatory alternative would serve the same interest. A legally sufficient justification may not be used as a defence against a claim of intentional discrimination. This is the framework under which screening criteria are tested: a criminal-records policy, a minimum-income floor, or an occupancy standard can be neutral on its face and still unlawful in operation.

Confidence

high

Effective from

2023-05-01

Last reviewed

2026-09-07