Using Disparate Impact Analysis in Fair Housing Act Claims: Landlord Withdrawal From the Section 8 Voucher Program

The Fair Housing Act (FHA) outlaws discrimination in housing based on race, color, religion, national origin, and sex. A plaintiff can win an FHA claim using a disparate impact theory by showing that the defendant’s actions had a disproportionately adverse impact on a protected class. This Note will address a circuit court split on whether a landlord can be held liable for discrimination under the FHA for withdrawing from the Section 8 voucher program. Section 8 is a government program that provides low-income citizens with vouchers to pay a portion of their rent. Many voucher recipients are minorities or persons with disabilities. The U.S. Courts of Appeals for the Second and Seventh Circuits have held that, as a matter of law, a landlord who withdraws from the Section 8 voucher program cannot be held liable under the FHA, even if that action has a disproportionate impact on a protected class. In contrast, the Court of Appeals for the Sixth Circuit has held that a plaintiff can rely on evidence of disparate impact to show that a landlord violated the FHA by withdrawing from Section 8. This Note argues that in order to meet the FHA’s goal of ending housing discrimination, landlords who withdraw from the Section 8 program should not be given a categorical exemption from liability under the FHA if that action has a disparate impact on a protected class