The Intentional Targeting Test: A Necessary Alternative to the Disparate Treatment and Disparate Impact Analyses in Property Rentals Discrimination

Article excerpt

This Note addresses when a landlord exclusively rents to particular minority groups intending to profit from substandard apartment conditions and services. Because there is no similarly situated group of non-minority tenants with whom they can compare their treatment by the landlord, targeted tenants cannot successfully make a claim of discrimination under any civil rights laws. Reverse redlining, where companies extend credit exclusively to minority communities on unfavorable terms, presents similar difficulties in proving discrimination. Some courts have responded to reverse redlining by allowing plaintiffs to state a claim of discrimination without a comparison group so long as they provide evidence that the defendants "intentionally targeted" them because of their race or ethnicity. This Note argues that this "intentional targeting" test should be extended to habitability-related claims of discrimination so exploited tenants can combat landlords' racially or ethnically motivated misconduct even without a group of better-treated tenants with which to compare treatment.


Over forty years after Congress enacted legislation to combat discrimination in the housing market, minorities still face unique obstacles in obtaining decent housing, particularly rental housing.1 In a conventional case of discriminatory provision of rental premises and services, injured parties could bring suit against their landlord, claiming that the landlord's conduct constituted disparate treatment or had a disparate impact and therefore violated some civil rights law, including the Fair Housing Act.2 However, where an owner or landlord rents exclusively to tenants of a particular racial or ethnic background for the purpose of providing substandard living conditions, a tenant cannot plead disparate treatment because there would be no similarly situated tenants in the building whom the plaintiff could show were receiving more favorable treatment.3 Lacking a similarly situated group would also prevent the plaintiff from successfully claiming that the landlord's provision of substandard premises had a disparate impact on the plaintiff class.4

Recently, federal courts have developed a solution to a similar problem: "reverse redlining."5 Reverse redlining means intentionally extending credit on unfair terms to residents in specific geographic areas based on their income, race, or ethnicity.6 Because such lenders exclusively target one group of people, no other group exists who received loans from the same lender but on more favorable terms - thus, the victims cannot show they were treated differently than similarly situated persons outside the target class. Courts have responded to this dilemma by developing an alternative test - what this Note calls the "intentional targeting" test - that permits plaintiffs to state a claim under the Fair Housing Act and other civil rights even without a comparison group.7

While the intentional targeting test has been limited to reverse redlining claims, this Note proposes extending it to scenarios in which a landlord exclusively targets potential tenants based on their race or ethnicity for the purpose of providing substandard premises. Part II will briefly explore the background of housing discrimination in the U.S. and the evolution of the intentional targeting test in the property rentals context. Part III will examine the common and statutory law under which an individual can bring claims of discrimination in the rentals setting, including the implied warranty of habitability, the Civil Rights Act of 1866, and the Fair Housing Act. Part IV will argue for extending the intentional targeting test to habitability-related claims of discrimination. It will first outline the development of the intentional targeting test in reverse redlining cases and then articulate the elements of a prima facie case of intentional targeting in the rentals setting, including the evidence that might satisfy those elements. …


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