AN ACT TO AMEND TITLE 6 OF THE DELAWARE CODE RELATING TO FAIR HOUSING AND DISPARATE IMPACT LIABILITY.
What changed between versions
The final bill explicitly covers practices that rely on algorithms, automated decision-making systems, risk assessments, or data-driven models, stating they are subject to disparate impact liability even if inputs or methodology are facially neutral. HA 1 had removed this language.
The final bill applies to public and private land use decisions affecting housing opportunities, availability, or access, and explicitly subjects political subdivisions exercising authority under Title 9 or Title 22 (zoning and planning) to the chapter. HA 1 had removed land-use provisions.
The final bill enumerates specific covered practices including sales or rental practices, lending/underwriting/appraisal practices, occupancy standards, criminal history screening policies, third-party outsourced screening, and land use decisions. HA 1 replaced this list with a single general sentence referencing all discriminatory housing practices as defined in section 4602.
A policy is not shielded from liability solely because it is authorized by another state or local law unless compliance with that law is mandatory. However, a practice required by federal statute or regulation does not constitute a violation.
New definitions added to section 4602: 'Discriminatory effect' (a practice that actually or predictably results in disparate impact on a protected class or perpetuates segregation), 'Disparate impact' (a facially neutral policy that disproportionately and adversely affects a protected class), and 'Less discriminatory alternative' (an alternative serving the same legitimate interest with less discriminatory effect).
A three-step burden-shifting framework is codified: (1) complainant proves a practice caused or predictably will cause discriminatory effect, (2) respondent proves the practice is necessary to achieve substantial legitimate nondiscriminatory interests, (3) complainant may still prevail by showing a less discriminatory alternative exists.
The Division of Human and Civil Rights is granted authority to promulgate regulations to implement the disparate impact section. The section supplements existing enforcement authority under section 4611 and remedies under section 4613.
The bill takes effect 90 days after enactment and includes a severability clause.
