Disparate impact discrimination refers to conduct that has a discriminatory effect on a protected class even if it wasn't motivated by a desire to discriminate. In 2020 the U.S. Department of Housing and Urban Development (HUD) issued a final rule that gives landlords and tenants specific guidance regarding what is a fair disparate impact claim, what isn't and who is responsible for proving it.
fact must support that a specific and identifiable policy has a discriminatory effect The policy must also be “arbitrary, artificial, and unnecessary to achieve a valid interest or legitimate objective.” The policy must have a disproportionately adverse effect on members of a protected class and the effect needs to be related causally to the policy The alleged disparity has to be "significant"
The plaintiff has to prove that all of these things are true for their disparate impact case to be successful. Specifically, they must start by showing "a preponderance of the evidence" that supports the above claims. After this, the defendant can rebut it by showing how the policy actually advances a valid business interest. In this case, the plaintiff then has to bring more evidence to the table proving the opposite.
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