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Robust Causality (Interpretation of Robust Causality << FHA >>…

- - - - TRADITIONAL CLAIMS
        
        plaintiff must show statistical evidence that Policy would likely have discriminatory impact
        
        comparative data must show Policy's disparate impact on members vs. non-members of protected class
        
        plaintiff must show challenged policy caused the disparity
      - SEGREGATIVE-EFFECT CLAIMS
        
        no burden to prove a before-and-after effect
        
        plaintiff must show existing pattern of segregation AND that challenged policy will perpetuate the segregation
        
        plaintiff must show that Policy will perpetuate segregation
      - MAJORITY
        
        insisted plaintiff ICP show Policy caused segregation shown in census data
        
        insisted plaintiff ICP show Policy diminished previously available opportunities
        
        insisted plaintiff ICP show challenged policy was new or previously unenforced
- - - - DISPARATE-IMPACT THEORY COGNIZABLE UNDER THE ADEA but there was NO valid claim here b/c the differentiation was based on reasonable factors other than age
      - POLICY: city gave raises to police officers such that those w/less than five yrs. on the job received proportionately greater raises than those w/seniority
  - - - POLICY: requiring high school diploma or passing a test not related to job performance -- disparate impact on black people
      - PLAINTIFFS ASSERTED A VALID DISPARATE-IMPACT CLAIM
      - EXAMPLES of disparate-impact claims
        
        facially neutral policies that freeze the status quo created by prior discriminatory practices
        
        artificial, arbitrary, and unnecessary barriers that discriminate in operation
      - DEFENSE = business necessity (D has burden)
    - - SUBJECTIVE / DISCRETIONARY EMPLOYMENT PRACTICES MAY BE ANALYZED UNDER DISPARATE-IMPACT THEORY
      - EVIDENTIARY SAFEGUARDS ensure that employers won't have to adopt quotas / engage in preferential treatment to avoid liability
        
        plaintiff must ID a specific challenged policy
        
        causation must be proved w/ statistical evidence "of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions b/c of their membership in a protected group"
        
        statistical evidence must be reliable -- small or incomplete data sets / inadequate statistical techniques can be rejected
        
        defenses include "business necessity" or "job relatedness"
        
        plaintiff has the burden of showing alternate methods would be equally effective
    - - PLAINTIFFS ASSERTED A VALID PRIMA FACIE CASE OF DISPARATE IMPACT based solely on statistical showing of racial disparity caused by specific, identifiable employment practices or criteria
      - BURDEN THEN SHIFTS to defendant to prove business necessity
      - POLICIES: Canneries hired predominantly white workers for higher-paying skilled positions, and hired predominantly nonwhite, Filipino workers for lower-paying, unskilled cannery line jobs. The policies in question included a rehiring preference, a lack of objective criteria, separate hiring channels, a practice of not promoting from within, and racially-segregated facilities.
  - - - POLICY: city cited plaintiff halfway house operator for violating a zoning ordinance limiting occupancy turnover
      - PLAINTIFFS DIDN'T ASSERT A VALID DISPARATE-IMPACT CLAIM b/c P gave no comparative data whatsoever on policy's impact on protected class members vs. nonmembers
    - - POLICY: gov't policy unreasonably restricted private construction of multi-family housing to particular areas so as to perpetuate segregation
      - if P is suing to eliminate an obstacle to housing and not to compel gov't construction, D has to offer more substantial justification for its adverse action
      - PLAINTIFFS ASSERTED A VALID DISPARATE-IMPACT CLAIM b/c Huntington's refusal to amend a restrictive zoning ordinance to permit privately-built multi-family housing outside the urban renewal area significantly perpetuated segregation
      - disparate impact can exist even where the majority of the victims are white if minorities are disparately impacted at a higher RATE (citing Griggs)
    - - POLICY: county refused to rezone a parcel from agricultural to mixed use so Hallmark could build low- & moderate-income housing
      - 2 types of DISCRIMINATORY IMPACT CLAIMS: (1) segregative effect; or (2) policy makes housing options more restrictive for members of protected group than for non-members
      - STATISTICS should (1) rely on proportions more than absolute numbers, (2) stats based on gen. pop. should bear a proven relationship to actual applicant flow, and (3) appropriate inquiry is into the impact on the total group to which a policy applies
    - - PLAINTIFFS MAY HAVE ASSERTED A VALID DISPARATE-IMPACT CLAIM -- plaintiffs only required to prove that a policy had a discriminatory on them as individuals, i.e. as residents of Bldg. 3, the people subjected to the policy
        
        dist. ct. erred in rejecting disparate-impact in the absence of (1) a continuing disproportionate impact, (2) the high % of black tenants in the complex, and (3) the insignificant impact of the policy on black members of the ENTIRE local community -- all three factors are irrelevant to disparate-impact
      - DEFENSE to prima facie case of discriminatory impact is "a business necessity sufficiently compelling to justify the challenged practice"
      - POLICY: private-apt.-bldg. owners instituted an all-adult rental policy resulting in eviction notices to many Bldg. 3 tenants, most of whom are black residents w/children
    - - POLICY: the city of Clarktown abandoned plans for a public housing project due to racially motivated public pressure against the project
      - PLAINTIFFS ASSERTED A DISPARATE IMPACT CLAIM "racial discrimination of precisely the type condemned by . . . the Fair Housing Act . . . controlled Clarkton’s consideration of low-income housing.”
      - REMEDY: holding that “[t]o require Clarkton itself to construct public housing units from its own locally-generated funds and then maintain them in perpetuity . . . in the specific circumstances of this case, goes one step too far”
    - - FACTS / POLICY: Plaintiff was denied an apartment because of the adults-only policy, which allegedly infringes on opportunities for Black and Hispanic citizens. Landlord subsequently & voluntarily abandoned the policy.
      - RULE — MOOTNESS: case only moot if (1) no reasonable expectation of recurrence, and (2) interim relief / other events have completely eradicated the effects of the violation.
      - CASE IS NOT MOOT even though Wend abandoned policy
      - PLAINTIFF MADE SUFFICIENT ALLEGATIONS TO STATE A CAUSE OF ACTION bc the documents attached to the complaint show “some possibility of discriminatory effect”
- - - - "A disparate-impact claim that relies on a statistical disparity must fail if the plaintiff cannot point to a defendant's policy or policies causing that disparity."
      - this "protects D's from being liable for racial disparities they did not create"
    - - location decision by a one-time private developer
      - federal law substantially limits the [housing] department's discretion
      - multiple factors impact investment decisions
    - - gov't & private policies are okay UNLESS they are "artificial, arbitrary, and unnecessary barriers"
      - LIMIT (1) should not prevent private developers from constructing / renovating housing units for low-income people
      - LIMIT (2) should not prevent gov't entities from achieving legit. goals (like compliance w/health & safety codes) -- these wouldn't be artificial, arbitrary, or unnecessary barriers
- - - - (1) nature of the burden -- challenged policy must impose a discriminatory burden such that members of a protected class have less opportunity to participate in the political process & elect reps. of their choice
      - (2) burden must in part be caused by or linked to social & historical conditions that have or currently produce discrimination against members of protected class