Overview
On January 28, 2026, Cohen Milstein submitted an amicus curiae brief to the U.S. Court of Appeals for the Fourth Circuit on behalf of the nation’s foremost civil rights and fair housing advocacy groups and employment lawyers. Amici, in support of Plaintiffs-Appellants, address whether the District Court for the District of Maryland applied the proper burden-shifting framework with respect to disparate impact claims brought under the Fair Housing Act (FHA) when it granted Defendants-Appellees summary judgment in a case addressing the discriminatory maintenance and marketing of Real Estate Owned (REO) properties, i.e., homes that have gone through foreclosure and failed to sell at auction, reverting back to the lender.
Amici
Amici are among the nation’s foremost civil rights and fair housing advocacy groups and employment lawyers, including Metropolitan Washington Employment Lawyers Association (MWELA), the NAACP Legal Defense & Educational Fund, Inc. (LDF), the National Housing Law Project (NHLP), and Poverty and Race Research Action Council (PRRAC).
Summary of Argument
A coalition of 20 fair housing advocacy groups and three individual homeowners filed suit against Bank of America N.A. and its servicer, Safeguard Properties Management, for violating the FHA in their discriminatory maintenance and marketing of REO properties. The District Court for the District of Maryland granted Defendants Appellees summary judgment on Plaintiffs-Appellants’ FHA claims on several independent grounds.
Amici write to address one portion of the District Court’s analysis dismissing Plaintiffs-Appellants’ FHA claims brought under the disparate impact theory of liability. Specifically, the District Court announced, as a matter of law, that “‘the lack of a policy’ . . . is not actionable” under disparate impact theory. ECF380:31. That statement, however, incorrectly characterizes disparate impact blackletter law in this Circuit and is problematic as a matter of public policy. Without correction, this misstatement of law, if cited by other courts, indirectly permits harmful discrimination so long as it is not the result of an affirmative policy. Accordingly, amici ask the Fourth Circuit to reverse the District Court’s decision below, and to expressly clarify that a failure to engage in a practice or enact a policy can be actionable as a matter of disparate impact law under the FHA, among other civil rights laws.