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Legislation Document
SPONSOR:
Rep. K. Johnson & Sen. Lockman
Reps. Lambert, Snyder-Hall; Sen. Pinkney
HOUSE OF REPRESENTATIVES
153rd GENERAL ASSEMBLY
HOUSE BILL NO. 451
AN ACT TO AMEND TITLE 6 OF THE DELAWARE CODE RELATING TO FAIR HOUSING AND DISPARATE IMPACT LIABILITY.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend § 4602, Title 6 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and redesignating accordingly:
§ 4602. Definitions.
For purposes of this chapter:
(11) “Discriminatory effect” means a practice that actually or predictably results in a disparate impact on a protected class identified in § 4603 of this title, or creates, increases, reinforces, or perpetuates segregated housing patterns, based on membership in a protected class. A practice predictably results in a disparate impact when there is evidence that the practice will result in a disparate impact even though the practice has not yet been implemented.
(11)
(12)
“Discriminatory housing practice” means an act that is unlawful under § 4603, § 4604, § 4605,
§ 4606 or § 4618
§ 4606, § 4618, or § 4621
of this title.
(13) “Disparate impact” means a facially neutral policy, practice, rule, decision, or method of administration that disproportionately and adversely affects members of a protected class.
(21) “Less discriminatory alternative” means an alternative practice that would serve the same substantial, legitimate, nondiscriminatory interest with a less discriminatory effect.
Section 2. Amend Chapter 46, Title 6 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 4621. Disparate effect; disparate impact.
(a) Purpose and construction. This section clarifies that liability under this chapter may be established based on a practice’s discriminatory effect, regardless of discriminatory intent. The practice may still be lawful if supported by a legally sufficient justification, as defined in paragraph (c)(2) of this section. The burdens of proof for establishing a violation under this section are set forth in subsection (c) of this section.
(b) Unlawful practice. It is an unlawful discriminatory housing practice under this chapter to use or enforce a policy or practice that has a discriminatory effect on a protected class, even if the policy or practice is neutral on its face and without discriminatory intent, unless justified under subsection (d) of this section.
(1) A practice that creates, increases, reinforces, or perpetuates segregated housing patterns may constitute evidence of a discriminatory effect under this section where such patterns limit housing choice or access for protected classes.
(2) Practices that rely upon or incorporate algorithms, automated decision-making systems, risk assessments or data-driven models are subject to this section where such tools produce or perpetuate a discriminatory effect, regardless of whether the inputs or methodology are facially neutral.
(c) The burdens of proof in discriminatory effect cases are as follows:
(1) Prima facie showing. The complainant or plaintiff bears the burden of proving that a practice caused or predictably will cause a discriminatory effect.
(2) Justification. If a prima facie showing is made, the respondent or defendant bears the burden of proving that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the respondent or defendant.
(3) Less discriminatory alternative. If the respondent or defendant satisfies paragraph (c)(2) of this section, the complainant or plaintiff may prevail by proving that the substantial, legitimate, nondiscriminatory interests could be served by a less discriminatory alternative.
(d) Scope of Application.
(1) This section applies to all practices covered under this chapter, including but not limited to, sales or rental practices; lending, underwriting, and appraisal practices; occupancy standards; criminal history screening policies; screening policies outsourced to a third-party; and public or private land use decisions affecting housing opportunities, availability, or access.
(2) A single decision may constitute a practice under this section.
(e) Evidence can be any of the following:
(1) Statistical evidence, including comparative data, may be used to establish or rebut the existence of a discriminatory effect.
(2) Disproportionate adverse outcomes across protected classes.
(3) Barriers to housing choice or access.
(4) The perpetuation of segregation or concentration of poverty.
(f) A policy is not shielded from liability solely because it is authorized by another state or local law unless compliance with the law is mandatory.
(g) In evaluating evidence, courts and administrative bodies must consider the totality of the circumstances, including historical patterns of discrimination and the cumulative impact of policies.
(h) Relationship to other State law.
(1) This section supplements and does not limit any of the following:
a. Enforcement authority under § 4611 of this title.
b. Remedies available under § 4613 of this title.
c. The authority of the Division of Human and Civil Rights under Title 31.
(2) Nothing in this section shall:
a. Require quotas or numerical set-asides.
b. Be interpreted to invalidate lawful occupancy standards permitted under § 4603 of this title.
c. Limit obligations under Chapter 51 of Title 25 (Residential Landlord-Tenant Code).
(3) Political subdivisions exercising authority under Title 9 or Title 22 are subject to this chapter and may not adopt or enforce policies that result in unlawful discriminatory effects.
(4) A practice required by federal statute or regulation does not constitute a violation of this section.
(i) The Division of Human and Civil Rights may promulgate regulations to implement this section consistent with this chapter and federal fair housing law.
Section 3. If any provision of this Act or its application to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications which can be given effect without the invalid provision or application.
Section 4. This Act takes effect 90 days after enactment into law.
SYNOPSIS
This Act clarifies that Delaware’s Fair Housing Act (Chapter 46 of Title 6) prohibits housing practices that have a discriminatory effect, commonly known as “disparate impact,” even in the absence of discriminatory intent.
The Act codifies a burden-shifting framework consistent with federal fair housing jurisprudence and regulations and with laws adopted in other states, including California and Massachusetts. Under this framework:
1. A complainant must show that a housing policy or practice causes or predictably will cause a discriminatory effect on a protected class.
2. A respondent may defend the practice by demonstrating that it is necessary to achieve a substantial, legitimate, nondiscriminatory interest.
3. A complainant may still prevail by showing that the interest could be served by a less discriminatory alternative.
The Act applies to rental policies, sales practices, lending and appraisal practices, occupancy standards, criminal history screening, and zoning or land use decisions to the extent permitted by law. It clarifies that statistical evidence may be used to establish disparate impact and that proof of discriminatory intent is not required.
The Act aligns enforcement with existing remedies and procedures under Chapter 46 of Title 6 and preserves the authority of the Division of Human and Civil Rights under Title 31. It does not require quotas, does not invalidate lawful occupancy limits, and does not impose liability where a practice is required by federal law.
This Act is intended to be interpreted consistently with, but not limited by, the federal Fair Housing Act and provides equal or greater protection under Delaware law.