HUD's proposed rule change could limit housing discrimination lawsuits

The Department of Housing and Urban Development is proposing a change to its fair housing rules, but critics say the move could result in less discrimination lawsuits.

The HUD has proposed a change in its regulations that would do away with the so-called “Disparate Impact rule”, which is often used as a way of enforcing the Fair Housing Act. The Disparte Impact rule is part is part of a 2013 regulation that ensures there are uniform standards for proving policies are discriminatory, even if that was not the intent of the policy.

Curbed.com says the rule change would shift the burden of proof in housing discrimination lawsuits to the plaintiff, away from the defendant. According to HUD Secretary Ben Carson, the proposal is in line with recent federal court decisions.

“This proposed rule is intended to increase legal clarity and promote the production and availability of housing in all areas while making sure every person is treated fairly under the law,” Carson said in a statement. “As we have shown time and again, we will challenge any practice that discriminates against people that the law protects. At the end of the day, this rule not only increases Americans’ access to fair and affordable housing, but also permits businesses and local governments to make valid policy choices.”

But advocates of fair housing say the HUD’s proposed rule change would make it almost impossible for plaintiffs to prove they’ve been discriminated against.

“These changes are designed to make it much more difficult, if not impossible, for communities of color to challenge discriminatory effects in housing,” said Diane Yentel, the president and CEO of the National Low Income Housing Coalition.

The current Disparate Impact rule proscribes a three-step process for proving discrimination under the Fair Housing Act. First, the person making the accusation must prove that a policy is causing discrimination; second, they must prove that policy is necessary for legitimate, nondiscriminatory results; and third, the plaintiff must then prove the defendant’s interests can be achieved with a policy or practice that is less discriminatory.

If the HUD’s changes go ahead, the process would involve five steps. According to Curbed,com, plaintiffs would need to show that a policy is “arbitrary, artificial, and unnecessary”; has a “robust casual link” with disparate impact on a protected class; causes a “significant” adverse effect on them; and is directly linked to plaintiff’s “alleged injury.”

The HUD’s proposal to change the rules is currently under a 60-day public comment period, after which a decision will be made on whether or not to implement it.