October 11, 2019
Although our nation’s courts have long held that eliminating discrimination in all forms is a compelling interest of the “highest order,” the U.S. Department of Housing and Urban Development (“HUD”) recently issued a proposed Fair Housing Act (“FHA”) rule that will make proving claims of housing discrimination far more difficult.
ADL’s comments to HUD in opposition to the proposed rule, called “Implementation of the Fair Housing Act’s Disparate Impact Standard,” explain why the rule would be detrimental to all communities covered by the FHA, including Jews who are barred by neutral housing rules from displaying a mezuzah on their outer doorpost.
Four years ago, the U.S. Supreme Court ruled that the “disparate impact” theory of liability applies to discrimination claims brought under the FHA. Disparate impact has been defined as “the adverse effect of a facially neutral practice,” and someone need not prove discriminatory intent to succeed with such a claim. The Court’s decision, in a case entitled, Texas Dept. of Housing v. The Inclusive Communities Project, was a big win for the civil rights of all Americans because it allows challenges to neutral and generally applicable housing rules or laws that intentionally or unintentionally result in discrimination.
At the time, ADL said that the mezuzah was the “Fair Housing Decision’s Overlooked Beneficiary.” A mezuzah is a small, unobtrusive object — typically less than six inches long and an inch wide — which for millennia has been placed on the outer doorposts of Jewish homes in fulfillment of religious obligations. It is not a decorative choice for Jews, or a choice of any kind. Rather, an observant Jewish person cannot buy, rent or reside in a residence where placement of a mezuzah on the outer doorpost is prohibited.
Many condominiums, developments and rental communities are subject to generally applicable aesthetic or other restrictions which prohibit the display of all religious or secular symbols on outer doorposts and doors, including the mezuzah. In instances where associations or landlords refuse to make accommodations for the mezuzah, ADL viewed the Court’s decision as a valuable legal tool to vindicate Jewish residents’ fair housing rights.
Regrettably, the proposed HUD rule misconstrues and distorts language from The Inclusive Communities Project decision to create a much higher burden to prove a disparate impact claim compared to the current HUD rule. In fact, many Jewish residents trying to prove a claim challenging a neutral rule barring the display of a mezuzah may not even survive the initial (pleading) stage of a case and have their claim dismissed.
Discrimination against individuals is a corrosive element in society that Congress, as well as the states, have sought to combat through the passage of anti-discrimination laws. Over a half century ago, ADL mobilized support for the FHA because housing discrimination, whether intentional or not, hurts people and damages the fabric of society. Yet, the proposed HUD rule would undermine the law’s twofold goal of eradicating discrimination and promoting more inclusive neighborhoods. In light of this prospective harm, the rule should be modified to preserve the FHA’s vital purpose and protections.