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Part I describes disparate impact theory, highlighting the logic of the shifting burden of proof, (3) and relevant statistical concepts.
4) Importantly, it highlights the distinction between two aspects of "practical significance" sometimes obscured in disparate impact discussions: magnitude and confidence.
THE FAIR HOUSING ACT AND THE HISTORY OF DISPARATE IMPACT
City of Jackson, (28) where the Court discussed disparate impact under both Title VII of the Civil Rights Act of 1991 and the Age Discrimination in Employment Act of 1967 ("ADEA").
Courts must therefore examine with care whether a plaintiff has made out a prima facie case of disparate impact and prompt resolution of these cases is important.
If the ICP cannot show a causal connection between the department's policy and a disparate impact--for instance, because federal law substantially limits the department's discretion--that should result in dismissal of this case.
Although the Court did rule that the disparate impact theory is valid, it also put in place certain limitations which could protect real estate managers and owners.
In other words, there must be "causal connection" in order to establish a claim of disparate impact.
NAA/NMHC argued that disparate impact liability could trigger discrimination claims for conducting resident criminal history and credit screenings, among other business practices, despite no intention of singling out a particular group protected by the Fair Housing Act.
This type of practice is discriminatory, in effect, unless the credit union can demonstrate the practice meets a legitimate business need that cannot be reasonably achieved by means less disparate in impact.
In 2013, while the case was on appeal, HUD issued a regulation interpreting the FHA to permit disparate impact liability and purporting to set standards for proving such claims under the FHA.
In addition to this divide over the proper standard, questions have recently arisen over the relationship between disparate impact doctrine and the constitutional guarantee of equal protection.