Improving Housing Opportunities for Individuals with Conviction Records

Package Five: Making a Claim of Racial Discrimination Under the Federal Fair Housing Act

















This section describes the possibility of bringing a lawsuit to challenge housing policies that exclude applicants with conviction records, on the basis that such policies have a racially discriminatory effect and violate the federal Fair Housing Act. Please note that of the packages in this kit, this one contains the most complex legal arguments and theories. You will need to discuss the possibility of this claim with a lawyer. We have tried to break down the material as much as possible, but it is a complex issue involving complex legal analysis

First we will explain the legal basis for such a claim, and then examine what type of fact pattern might make such a claim plausible. As this is a new kind of claim, and we are not aware of cases where it has been brought to date, we recommend proceeding with care.

Background on the Fair Housing Act and Racial Discrimination in Housing

The federal Fair Housing Act (FHA),1 enacted as Title VIII of the Civil Rights Act of 1964 and amended in 1988, declares that “It is the policy of the Unites States to provide, within constitutional limitations, for fair housing throughout the United States.”,2 It directs “all executive departments and agencies” to “administer their programs and activities relating to housing and urban development… in a manner affirmatively to further the purposes of this subchapter.”3

The FHA makes it “unlawful to refuse to sell or rent…or otherwise make unavailable or deny, a dwelling to any person because of race, religion, sex, familial status, or national origin.”4 It also prohibits discrimination “in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith,” because of such characteristics.5

“Aggrieved persons,” defined as “any person who claims to have been injured by a discriminatory housing practice; or believes that such person will be injured by a discriminatory housing practice that is about to occur,”6 may pursue administrative or judicial remedies under the FHA. Federal courts are authorized to award actual and punitive damages to successful plaintiffs, as well as injunctive relief (an order to perform a specific action).7

Courts have found violations of the FHA not just for individual acts of racially motivated discrimination, but for policies adopted by housing providers, including both public housing authorities (PHAs) and private developers, that appear neutral but have a discriminatory effect in that they exclude one group of people at a greater rate than others. This type of argument is called a “disparate impact” claim, and it is made possible by a generous interpretation of the phrase “because of race.” As the Seventh Circuit Court of Appeals explained,

The narrow view of the phrase is that a party cannot commit an act ‘because of race’ unless he intends to discriminate between races…. The broad view is that a party commits an act ‘because of race’ whenever the natural and foreseeable consequence of that act is to discriminate between races, regardless of his intent.8

It is this “statistical, effect-oriented view of causality,” rather than proof of an intent to discriminate, that allows disparate impact claims under the FHA.9

Because such disproportionate numbers of black and Hispanic persons have criminal convictions, they will be disproportionately affected by policies that bar persons with conviction records from public housing. Therefore, such policies could be challenged under the FHA as producing a racially discriminatory effect. As noted above, no such challenge that we know of has yet been attempted. The discussion that follows will address the legal standards used by courts when evaluating FHA claims, as well as the type of evidence that may be required to prove that housing policies that bar people with conviction records have a racially discriminatory effect.

Using the Fair Housing Act to Challenge Discriminatory Housing Policies

  1. Who can bring a claim under the FHA?

    The FHA allows “aggrieved persons” to sue. An “aggrieved person” is defined as “any person who claims to have been injured by a discriminatory housing practice,” or any person who “believes that such person will be injured by a discriminatory housing practice that is about to occur.10 Courts have found that plaintiffs do not need to be members of a group that is discriminated against in order to claim that they have been injured: the effects of discrimination injure anyone with an interest in living in desegregated, nondiscriminatory environments.

    The Supreme Court has held that the only requirement for a plaintiff to sue is “injury in fact,” a standard that comes from Article III of the U.S. Constitution.11 Plaintiffs must “have alleged distinct and palpable injuries that are ‘fairly traceable’ to” the defendant’s actions12. The injury need not be economic; for example, the Supreme Court found that a non-profit housing developer with “an interest in making suitable low-cost housing available in areas where such housing is scarce” had standing to sue under the FHA when its plans to construct such housing were thwarted by municipal action.13

    In Trafficante v. Metropolitan Life Insurance Co., two plaintiffs, one black, one white, alleged discrimination against minority tenants in an apartment complex in which they both lived. Both claimed that

    they had been injured in that (1) they had lost the social benefits of living in an integrated community; (2) they had missed business and professional advantages which would have accrued if they had lived with members of minority groups; (3) they had suffered embarrassment and economic damages in social, business, and professional activities from being ‘stigmatized’ as residents of a ‘white ghetto.’14

    The Supreme Court held that both tenants had standing to sue under the Fair Housing Act. Both alleged “individual injury or injury in fact,” which the court found was “the loss of important benefits from interracial associations.”15 The court noted that “the proponents of [the FHA] emphasized that those who were not the direct objects of discrimination had an interest in ensuring fair housing, as they too suffered,”16 and concluded that they could “give vitality to [the Act] only by a generous construction which gives standing to sue to all in the same housing unit who are injured by racial discrimination in the management of those facilities within the coverage of the statute.”17

    Despite this wide latitude in determining standing to sue, in general a plaintiff is only permitted to “assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.”18 The general interest of an advocacy organization is not sufficient to give it standing to bring a suit unless it has somehow been directly injured, as in Arlington Heights, discussed above, though the organization may represent organization members who have been so injured.19 Therefore, it is important that all plaintiffs involved in a FHA challenge to housing policies have a direct, personal, specific interest in the matter.

  2. What is the legal standard for a disparate impact claim?

    In general, when a court evaluates a claim that a policy or decision related to housing has a discriminatory effect, it will first look at the evidence of that effect, and balance the strength of that evidence against the reasons presented for the policy. Two basic approaches to this question have evolved, with variations among courts. General sketches of these approaches follow, but because the law varies among circuits, more careful analysis of the specific standard applied in your jurisdiction will be necessary before bringing a claim under the FHA.

    A. Burden-Shifting Analysis

    Most courts use a burden-shifting analysis when evaluating Title VIII cases. This means that most courts require plaintiffs to first establish a prima facie20 case that the contested policy indeed has a discriminatory effect, and then turn to the defendant to rebut this evidence and explain the policy. This approach was developed by drawing on the method used to review employment discrimination claims brought under Title VII of the Civil Rights Act (prohibiting employment discrimination), and the similarity of purpose between the two statutes.21

    The Second Circuit recently described what is required to make this showing: “a plaintiff must demonstrate that an outwardly neutral practice actually or predictably has a discriminatory effect; that is, has a significantly adverse or disproportionate impact on minorities, or perpetuates segregation.”22 Policies regarding denial of admission to housing due to criminal records could be challenged as having the first kind of discriminatory effect—a disproportionate impact on minorities. “Valid statistical evidence is admissible” in order to demonstrate the effect of the policy on the affected groups,23 This type of evidence is actually indispensable to making a prima facie showing of discrimination, as will be discussed below.

    Courts that employ the burden shifting analysis have held that plaintiffs need not show that the disparate impact is a result of an intent to discriminate; simply making a showing of discriminatory effect is sufficient to establish a prima facie case.24 As the Eighth Circuit has held, “effect, and not motivation, is the touchstone, in part because clever men may easily conceal their motivations.” The Third Circuit has provided a historical explanation, noting that during the floor debate prior to Title VIII’s enactment, an amendment that would have required proof of intent was defeated.25

    Establishing the prima facie case of discrimination does not end the matter, though. As the Seventh Circuit has stated,

    Although we agree that a showing of discriminatory intent is not required…, we refuse to conclude that every action which produces discriminatory effects is illegal. Such a per se rule would go beyond the intent of Congress and would lead courts into untenable results in specific cases.26

    Once the prima facie case is established, the defendant may overcome it by establishing two things: it must show that its actions “furthered… a legitimate, bona fide governmental interest,” and it must also demonstrate “that no alternative would serve that interest with less discriminatory effect.”27 The Eighth Circuit has held that this inquiry involves first examining “whether the ordinance in fact furthers the governmental interest asserted,” and “second, whether the public interest served by the ordinance is constitutionally permissible and is substantial enough to outweigh the private detriment caused by it; and third, whether less drastic means are available whereby the stated governmental interest may be attained.”28 Once the defendant introduces evidence that there is no suitable alternative course of action or policy, “the burden will once again shift to the plaintiff to demonstrate that other practices are available.”29 The Ninth Circuit has also indicated that a prima facie case of discriminatory effect can be “diffuse[d]… by successfully challenging the statistical basis of the charge.”30If such evidence is produced, the Ninth Circuit does not require the defendant to “supply a legally sufficient, nondiscriminatory reason in rebuttal.”31

    Note that only a government entity can claim to be pursuing a “legitimate governmental interest.” Courts differ as to whether they apply the same standard in cases with private and public defendants. The Third Circuit, in Rizzo, removed the language about government from its articulation of its test; therefore, it is applicable to both private and public entities.32 The Fifth Circuit has noted that in cases where the defendant is a private party, a disparate impact claim can only be made regarding “a policy, procedure, or practice specifically identified by the plaintiff” that has “a significantly greater discriminatory impact on members of a protected class,” and not regarding “a single act or decision by that defendant….”33 The Fourth Circuit has held that the burden-shifting approach does not even apply in cases where public defendants, such as a public housing authority, are being sued; in those cases, the court will use the four-prong test described below.34 Any organization or person who is contemplating such a lawsuit against a private landlord should research the law as it pertains to private landlords in the relevant jurisdiction.

    B. The Arlington Heights Four-Factor Test

    The Seventh Circuit articulated a different method of evaluating a disparate impact claim in Metropolitan Housing Development Corp. v. Village of Arlington Heights (Arlington Heights II),35 and a few courts have followed the Seventh Circuit’s lead in adopting that standard. Once it has been established that conduct produces a discriminatory effect, the court asks:

    (1) How strong is the plaintiff’s showing of discriminatory effect; (2) is there some evidence of discriminatory intent…; (3) what is the defendant’s interest in taking the action complained of; and (4) does the plaintiff seek to compel the defendant to affirmatively provide housing for members of minority groups or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing.36

    Assessing the plaintiff’s showing of discriminatory effect is much like the evaluation of the prima facie case as discussed above, and is essentially a factual and statistical demonstration of the gravity of the effects of the contested policy or decision.37

    While discriminatory intent is included among the four factors, the Seventh Circuit indicated that it is “the least important.”38 At least one court has declined to adopt this factor while adopting the other three.39

    The Arlington Heights II court differentiated between the interests of private individuals and public agencies in its discussion of the third factor. Less deference will be paid to “a private individual or a group of private individuals seeking to protect private rights” or to “a governmental body acting outside the scope of its authority or abusing its power” if the actions of such body have a discriminatory effect.40 However, “if the defendant is a governmental body acting within the ambit of legitimately derived authority,” the court noted that it would “less readily find that its action violates the Fair Housing Act.”41 Other courts have applied the third factor analogously to evaluating the legitimacy of the defendant’s asserted interest under the standard discussed above. One court took an approach similar to the Title VII employment context and determined that because the defendant’s proffered justifications for their policy were “pretextual,” they failed to establish a “legitimate interest” under the third Arlington Heights factor.42

  3. The final factor derives from the Seventh Circuit’s concern for protecting individuals’ ability to use their land in the manner in which they choose. The court expressed its reluctance to “compel the defendant to construct integrated housing or take affirmative steps to ensure that integrated housing is built” because it considered such an order to be “a massive judicial intrusion on private autonomy;”43 on the other hand, it professed its willingness “to prohibit even nonintentional action by the state which interferes with an individual’s plan to use his own land to provide integrated housing.”44

  4. The Structure of a Fair Housing Act Claim

    A. Establishing a Prima Facie Case of Discriminatory Effect

    Regardless of whether your circuit has adopted the Arlington Heights factors or not, a plaintiff mounting a Fair Housing Act challenge to a local policy must establish a prima facie case that the policy has a racially discriminatory effect. This will require making a detailed and persuasive statistical demonstration of the policy’s effect. It is almost essential that you hire an expert who would be able to determine what the relevant data is, and accurately gather and analyze it.

    The plaintiff will need to look at the pool of people who have been excluded from housing based on their criminal record alone. It does not appear that national data on such exclusions exists;45 advocates will need to obtain the numbers from their local housing authority. It is important to be certain that you have isolated a group of people who are otherwise qualified to be tenants, apart from their criminal convictions.

    Another set of statistics that advocates will need to marshal will be information regarding the disparities in criminal sentencing across races. Plaintiffs will need to present numbers demonstrating the disproportionate rates at which people who are black or Latino are convicted relative to their share of the population, compared to the rate at which whites are convicted. Statistics about the number of individuals who are black or Latino who are currently in the criminal justice system—whether incarcerated or on probation or parole—and who have been in the system at some point in their lives should also be gathered and presented.

    Finally, it will be helpful in framing the issue to present information regarding the importance of public housing, particularly to people with criminal records. This can be achieved through statistics demonstrating the income levels of people with convictions, their rate of eligibility for public housing, and the lack of other affordable housing in the area.

    Advocates should perform additional research on how their circuits interpret statistical evidence and let the results inform their presentation of their case. Some courts are more receptive to background information than others; for example, the Eighth Circuit in Black Jack faulted the district court for “fail[ing] to take into account either the ‘ultimate effect’ or the ‘historical context’ of the City’s action”46 in rendering their decision. Other courts will tend to focus their inquiry more narrowly on the specifics of the matter before them. Courts may have their own expectations about the level of significance of disparity that must be proven before they will acknowledge a discriminatory effect. Advocates should be aware of trends in their jurisdiction and frame their case accordingly.

    An ideal plaintiff to bring this sort of challenge would be a person who is black or Latino who has a conviction history, who clearly presents no threat to people or property, and whose exclusion from housing therefore serves no legitimate interest. This person should have completed his/her sentence without violating probation or parole, and have gone several years since being discharged without reoffending. S/he should also have a demonstrated record of rehabilitation.

    Additionally, the plaintiff should draw the court’s attention to precedent indicating that the Fair Housing Act, like other civil rights statutes, should be interpreted broadly in order to effectuate the purpose, stated by Congress, of ending discrimination.47

    B. The Burden Shifts to the Defendant

    Once the plaintiff has established a prima facie case of discrimination, it becomes the defendant’s burden to rebut it. As discussed above, it may first try to do so by attempting to discredit the plaintiff’s statistical evidence. Again, because the numbers will be subject to such scrutiny, advocates should be sure to have a statistician or other expert gather, review, and confirm the data presented to the court.

    In addition to attacking the validity of the evidence presented, the defendant will argue that the policy serves a legitimate, bona fide government interest, and that there is no more non-discriminatory way to serve that interest. The interests it names will likely be safety, preventing crime, and preserving the housing stock. It might also argue that, given that there are far more people on the waiting list for housing than there are spots available, it is the housing authority’s prerogative to develop ways to screen people out. As for there being no more non-discriminatory way for the housing authority to advance the goal of increased safety and decreased crime, it might argue that there is nothing it can do to change the fact that people who are black or Latino are charged and convicted more frequently than white people; it’s not their policy that’s the problem, it’s the rate at which people are convicted, which is totally out of their control. It may also claim that it’s not discriminating, though the criminal justice system might be. The housing authority might also have statistics of its own regarding recidivism, indicating that past criminal activity is a good indicator of future dangerousness, or indicating that crime has dropped in public housing since the ban was put in place.

    C. Overcoming the Defendant’s Evidence

    In order to prevail, the plaintiff must disprove the housing authority’s contention that there is a legitimate, bona fide interest motivating its policy, and that there is no more nondiscriminatory way to achieve the goals and results of its policy.

    A desire to preserve safety is a legitimate concern. But an alternative policy of making case-by-case determinations based on a series of specific factors designed to evaluate each individual’s history and evidence of rehabilitation would serve this interest just as well, while minimizing the discriminatory impact produced by a permanent blanket ban. The model housing policy contained in Package One provides an example of such a balanced approach.

    The plaintiff should be able to present evidence that there is no necessary link between having a criminal record and being a risk to people or property, and that therefore blanket bans exclude people who no longer pose such a risk. For example, people whose convictions are old and who have a demonstrated record of rehabilitation (education, employment, completion of treatment or anger management programs, etc.) are not likely to cause problems in the community. Evidence that recidivism is actually more likely when a person is excluded from housing and is unable to fulfill their and their families’ essential needs, or otherwise suffers setbacks in trying to re-enter society, will also undermine the defendant’s claim that its policy advances an important goal.

    The plaintiff might also argue that while it is important for housing authorities to consider the safety of their current tenants, it is also their mission to provide housing for low-income community members, and that a more effective balance between the two should be struck.

    D. Successful Case Studies Drawn from Employment Law

    As mentioned above, parallels exist in the litigation of Fair Housing Act claims and employment discrimination claims brought under Title VII. While we do not believe that there has been a Fair Housing Act case brought that challenges policies barring people with criminal convictions from public housing, cases have been brought challenging employment policies that flatly deny jobs to people with criminal convictions under a disparate impact theory, and there have been some victories. A brief summary of two such cases follows.

    In evaluating the potential for success in your district of an FHA challenge to a local housing policy, you may find it helpful to perform additional research into Title VII caselaw, especially pertaining to employment of people with criminal records. Because Title VII and Title VIII interpretation are so closely linked, your court’s treatment of employment discrimination claims might be indicative of how the court will approach a Title VIII claim of housing discrimination against a person with a conviction record.

    a. Green v. Missouri Pacific Railroad Co.

    In Green v. Missouri Pacific Railroad Co., the Eighth Circuit struck down a policy that “refus[ed] consideration for employment to any person convicted of a crime other than a minor traffic offense.”48 The plaintiff, Buck Green, was an African-American man whose only conviction was for refusing the military draft, and who was told that this conviction disqualified him from employment with the railroad.49 Green contended that this policy had a racially discriminatory effect that disproportionately affected African-Americans, and was not justified by any business necessity.50

    The court explained that a disproportionate racial impact can be established statistically in three ways: by considering “whether blacks as a class (or at least blacks in a specified geographical area) are excluded by the employment practice in question at a substantially higher rate than whites;” or by comparing “the percentage of black and white job applicants actually excluded by the employment practice or test” used by the company; or, finally, by “examin[ing] the level of employment of blacks by the company or governmental agency in comparison to the percentage of blacks in the relevant geographical area.”51 It noted that in order to discern a disparity of impact, it would look at the effect of the railroad’s policies on both black and white applicants for employment with the railroad, as well as the effect it would have on “both blacks and whites in the general population in the area from which employees are drawn,” or the pool of potential applicants for a job.52 Before actually discussing any of this evidence, the court mentioned, but did not elaborate on, the data offered to and accepted by the trial court regarding the increased prevalence of criminal convictions among black people as opposed to white people.53

    The court then went on to set forth the actual rate of exclusion of black applicants versus white applicants because of criminal convictions: the rejection rate for black applicants was two and one-half times that of white applicants, or 53 of every 1000 black applicants and 22 of every 1000 white applicants.54 The court found that this was a significant enough difference to establish a prima facie case of discriminatory effect.55 It rejected the district court’s approach, wherein the number of black applicants rejected was then compared to the total pool of applicants, leading the district court to conclude that the policy had only a “de minimis discriminatory effect.”56 The appeals court stated that, by contrast, “the issue to be examined statistically is whether the questioned employment practice operates in a disparate manner upon a minority race or group, not whether the individuals actually suffering from a discriminatory practice are statistically large in number.”57 Additionally, the court found the district court’s methodology faulty because a suspect policy’s effects “must be measured upon blacks separately and upon whites separately,”58 while the district court compared the rate of rejection of each race to a pool consisting of applicants of both races. This pool consisted of more white people than black people, and therefore the district court’s use of that pool as a point of comparison “dilute[d] the actual discriminatory impact against blacks”59 that the policy had.

    Having concluded that a prima facie case had been established, the court went on to reject the railroad’s claim that the policy was justified by a business necessity. The test of a claim of business necessity in the Eight Circuit was (1) whether the policy was “essential” to the goal of “foster[ing] safety and efficiency,” and (2) whether there was “no acceptable alternative that will accomplish that goal ‘equally well with a lesser differential racial impact.’”60

    The court pointed to the Supreme Court decision in Griggs v. Duke Power Co.61, which held that any tests used to assess an applicant’s qualifications for a job “must measure the person for the job and not the person in the abstract.”62 The court took exception with per se disqualification based on criminal record because it had no connection to whether the applicant was able to perform the functions of the job or not; it “does not seek to measure technical aptitude or ability but serves as an absolute bar to employment because of some prior unlawful act committed by the applicant.”63 The court determined that “a sweeping disqualification… resting solely on past behavior can violate Title VII where that employment practice has a disproportionate racial impact and rests upon a tenuous or insubstantial basis.”64 The court held that the railroad had not “empirically validated” its claim that its policy regarding criminal convictions actually bore any connection to the reasons it gave for the policy, “nor shown that a less restrictive alternative with a lesser racial impact would not serve as well.”65 Finally, the court concluded, “we cannot conceive of any business necessity that would automatically place every individual convicted of any offense, except a minor traffic offense, in the permanent ranks of the unemployed.”66

    The analogy to disqualifying people from housing is clear. Just as the Eighth Circuit held that the fact that a person committed a certain act does not necessarily have any bearing on his or her ability to perform the necessary functions of a job, it also does not necessarily have any bearing on their ability to perform the necessary functions of a good tenant and neighbor. Further, this case provides a good illustration of the kind of statistical evidence that a plaintiff will need to present in order to make a successful prima facie case of discriminatory effect.

    b. Gregory v. Litton Systems, Inc.

    In this case, Litton’s policy of “not hiring applicants who have been arrested ‘on a number of occasions’ for things other than minor traffic offenses” was held to be a violation of Title VII.67 The court found as a fact that “information concerning a prospective employee’s record of arrests without convictions, is irrelevant to his suitability or qualifications for employment,” as “there is no evidence to support a claim that persons who have been arrested on a number of occasions can be expected, when employed, to perform less efficiently or less honestly than other employees.”68 The court also recited as facts a number of statistics about the arrest rates of African Americans as compared to whites, finding it “overwhelmingly and utterly convincing:” while black people make up 11% of the national population, they “account for 27% of reported arrests and 45% of arrests reported as ‘suspicion arrests.’”69 The court concluded based on this information that “any policy that disqualifies prospective employees because of having been arrested once, or more than once, discriminates in fact against Negro applicants.”70 The court made an additional fact finding that there was no business necessity served by this discriminatory policy,71 and held that the policy was “unlawful under Title VII… because it has the foreseeable effect of denying black applicants an equal opportunity for employment.”72

    Two additional facts should be noted about this case. One is that unlike the Green court, this court based its conclusions about discriminatory effect on national statistics rather than focusing solely on the local rates of arrest among the actual pool of potential applicants. This demonstrates the disparity among courts in approaches to statistical demonstration of discriminatory effects. The other is that while the court struck down the practice of referring to arrest records in hiring decisions, it specifically permitted Litton “to obtain and inspect information which is on the public record concerning the prosecution and trial of any prospective employee, even if the proceeding eventually resulted in an acquittal.”73 Thus, while the holding and much of the discussion contained in the opinion is helpful, the court did not go as far as they should have in ensuring that only relevant information is considered in hiring decisions.


142 U.S.C. §§ 3601 et seq.
242 U.S.C. § 3601.
342 U.S.C. § 3608(d).
442 U.S.C. § 3604(a).
542 U.S.C. § 3604(b).
642 U.S.C. § 3602(i)(1-2),
742 U.S.C. § 3613(c)(1).
8Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1288 (7th Cir. 1977).
9Id. at 1288, 89.
1042 U.S.C. § 3602(i)(1-2).
11Havens Realty Corporation v. Coleman, 455 U.S. 363, 376 (1982).
12Id, quoting Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 261 (1977).
13Arlington Heights, 429 U.S. at 262-63.
14Trafficante v. Metropolitan Life Insurance Company, 409 U.S. 205, 208 (1972).
15Id. at 209-10.
16Id. at 210.
17Id. at 212.
18Warth v. Seldin, 422 U.S. 490, 499 (1975).
19Sierra Club v. Morton, 405 U.S. 727, 739 (1972)

20Prima facie is a latin term that means “at first view.” It is used in the legal world to mean that there is enough evidence to raise a presumption that something might be true.
21See, e.g., Orange Lake Associates v. Kirkpatrick, 21 F.3d 1214, 1228 (2d Cir. 1994); Pfaff v. U.S. Department of Housing and Urban Development, 88 F.3d 739, 745 n1 (9th Cir. 1996) (also stating that this circuit draws on age discrimination jurisprudence); Resident Advisory Board v. Rizzo, 564 F.2d 126, 146 (3d Cir. 1977); Smith v. Town of Clarkton, 682 F.2d 1055, 1065 (4th Cir. 1982).
22Fair Housing in Huntington Committee, 316 F.3d at 366 (2d Cir. 2003).
23Pfaff, 88 F.3d at 746.
24Fair Housing in Huntington Committee, 316 F.3d at 366.
25Rizzo, 564 F.2d at 147.

26Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1290 (7th Cir. 1977) (Arlington Heights II).
27Fair Housing in Huntington Committee, 316 F.3d at 366; Rizzo, 564 F.2d at 149.
28Black Jack, 508 F.2d 1186-87.
29Rizzo, 564 F.2d at 149, n37.
30Pfaff, 88 F.3d at 746.
31Id. The defendant’s burden in FHA cases thus differs somewhat from the “business necessity” or “substantially related to job performance” tests employed in Title VII employment discrimination cases. The Third Circuit has explained that because job qualifications are more easily articulated than justifications for discriminatory housing practices, FHA criteria “must emerge on a case-by-case basis.” Rizzo, 564 F.2d at 148-9.
32Id. at 149: “a justification must serve, in theory and practice, a legitimate, bona fide interest of the Title VIII defendant….”
33Simms v. First Gibraltar Bank, 83 F.3d 1546, 1555 (5th Cir. 1996).

34Betsey v. Turtle Creek Associates, 736 F.2d 983, 989 n5 (4th Cir. 1984).
35558 F.2d 1283 (7th Cir. 1977).
36Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d at 1290.
37See Id. at 1291.
38Id. at 1292.
39Arthur v. City of Toledo, Ohio, 782 F.2d 565, 575 (6th Cir. 1986).
40Arlington Heights II, 558 F.2d at 1293.

42Keith v. Volpe, 858 F.2d 467, 483 (9th Cir. 1988).
43Arlington Heights II, 558 F.2d at 1293.
45Corinne Carey, “No Second Chance: People with Criminal Records Denied Access to Public Housing,” 36 U. Tol. L. Rev. 545, 546 (2005).
46U.S. v. City of Black Jack, 508 F.2d at 1187; quoting United Farmworkers of Florida Housing Project, Inc. v. City of Delray Beach, 493 F.2d at 810.
47Mayers v. Ridley, 465 F.2d 630, 635 (D.C. Cir. 1972); Resident Advisory Board v. Rizzo, 564 F.2d at 147, Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d at 1289.

48523 F.2d 1290, 1292 (8th Cir. 1975).
49Id. at 1292-93.
50Id. at 1293.
51Id. at 1293-94.
52Id. at 1294.
54Id. at 1294-95.
55Id. at 1295.
60Id. at 1298.
61401 U.S. 424 (1971).
62Green, 523 F.2d at 1296.
65Id. at 1298.

67316 F.Supp. 401, 402 (C.D. CA 1970); aff’d 472 F.2d 631 (9th Cir. 1972).
68316 F.Supp. at 402-03.
69Id. at 403.


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