By: Caroline Iosso, Fair Housing Advocate.

Since their inception, fair housing laws have aimed to integrate populations and persons of different ethnicities and races. These laws exist in order to promote equal access to housing opportunity and to ensure that landlords and real estate agents cannot pick and choose who lives where and who gets apartment repairs and who doesn’t. Part of the Civil Rights Act of 1968, the Federal Fair Housing Act reflected the racial inequalities, tensions, and mobilizations that characterized the Civil Rights Movement. Thus, three out of the original four protected characteristics are race, color, and national origin—all characteristics that seek to assure citizens of color that they will not face unequal treatment in their search for or experience in a home.

While it’s obvious that the Fair Housing Act is a crucially important piece of legislation that has had a significant impact on advancing housing opportunity and prohibiting housing providers from engaging in many types of discrimination, we are in a new civil rights moment. If these laws were indeed intended to integrate and eliminate restrictions and treatment that prevent people of all races and backgrounds from exceling, we need a new protected characteristic: poverty.

Though the Supreme Court shot this idea down in 1973 in the case San Antonio Independent School District v. Rodriguez[1] I would argue that it’s time to revisit the issue. In the last 40 years, the gap has widened between the rich and poor[2] and inevitable tension has arisen out of it[3]. It’s high time that the United States takes action to address the structural inequality produced by divisions in class.

Of course, race and poverty are intimately connected. As a result of systemic oppression, we have in many ways worked hard to keep people of color down,[4] behind bars[5], and with less opportunity.[6] People of color, on average, make less money and have fewer financial assets. In New York City, this translates into being less able to afford the skyrocketing rents that characterize gentrifying neighborhoods. Impacting the many clients that we serve who live in rent-stabilized units, this dynamic creates a dangerous incentive to drive tenants who can pay less (i.e. Latino and black tenants) out of their homes. Because of this connection and the fact that class is not a protected characteristic under any fair housing law, we at Brooklyn A often use the disparate impact element of the Fair Housing Act to seek justice on behalf of our clients.

The disparate impact theory, recently held up in a Supreme Court case last summer,[7] allows for housing providers to be held accountable for practices that, without intention, result in a discriminatory effect for members of a protected class. In other words, if a landlord is repairing the leaks in all the apartments rented by white people and none of the apartments rented by Hispanic people, the landlord cannot say that it’s because the white tenants pay more. The fact is that your practice of only providing services to high-income tenants results in housing discrimination based on race.

We see another example in the work that we do with Housing Development Fund Corporations or HDFCs. HDFCs were originally created in New York City to provide low-income community members with permanently affordable housing that they could purchase for a reasonable amount. Through the years, HDFCs have become more and more unaffordable to the New Yorkers they were originally intended to house. Contributing to this problem are the income caps that HDFCs put on new buyers. City policy dictates that “low-income” is defined as 120% or less of Area Median Income (AMI) for families with fewer than 3 dependents and 165% or less of AMI for families with three or more dependents. 120% AMI for a family of three is $93,240.00. For a single person, it’s $72,600. Does a person with that kind of salary seem low-income to you?

Here’s where fair housing laws become useful in combating this policy: we believe that this income guideline has a disparate impact on potential HDFC owners of color. If we’re considering potential buyers with an income of 120% AMI for low-income HDFC coops, then the buyers we will consider are less likely to be Latino or black. It wouldn’t be a stretch to say that this policy may result in majority-white housing.

Using disparate impact is a good and necessary tool to make housing more equitable and attainable to all people. However, it’s not enough. The fact that poverty is not a protected characteristic, that poor people can be harassed out of their homes, denied repairs, taken to court for frivolous proceedings, be denied succession, denied a renewal lease, watch their home fall apart around them while their landlord, satisfied, does nothing, is not reflective of our nation’s commitment to fair housing. In a society where there are far too many structural barriers to “pick yourself up by your bootstraps,” we need to make laws that compensate for the permanently bad hand that swaths of our population were dealt. It’s too easy to use poverty as a reason to treat people poorly.

[1] https://supreme.justia.com/cases/federal/us/411/1/case.html

[2] http://www.theatlantic.com/business/archive/2014/12/inequality-between-americas-rich-and-americas-poor-at-30-year-high/383866/

[3] http://www.pewsocialtrends.org/2012/01/11/rising-share-of-americans-see-conflict-between-rich-and-poor/

[4] http://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/

[5] http://www.npr.org/2012/01/16/145175694/legal-scholar-jim-crow-still-exists-in-america

[6] http://www.vox.com/2016/6/6/11852640/cartoon-poor-neighborhoods

[7] http://www.npr.org/sections/thetwo-way/2015/06/25/417433460/in-fair-housing-act-case-supreme-court-backs-disparate-impact-claims