HUD Proposal Seeks to Weaken Critical Anti-Discrimination Provision
WASHINGTON – The forthcoming Notice of Proposed Rulemaking regarding the Discriminatory Effects Standard (also known as Disparate Impact) was recently leaked to reporters and is now available prior to its publication in the Federal Register. Like HUD’s 2018 suspension of the Affirmatively Furthering Fair Housing Rule, and HUD’s attempted suspension of the Small Area FMR Rule in 2017, this proposed rule is an attempt by the Trump administration to dismantle the civil rights infrastructure that is one of the crowning achievements of our democracy.
The Discriminatory Effects Standard (commonly known as Disparate Impact) of the Fair Housing Act of 1968 upholds our societal obligation to fairness by respecting and protecting equal opportunity. The goal of the Disparate Impact standard is to root out unjustified practices that discriminate against groups protected by the Fair Housing Act, even where there is no specific evidence of discriminatory intent. The standard is based on an understanding of how hidden, stubborn prejudice can result in needless, facially neutral policies that discriminate against protected classes in practice. Without clear support for this standard from the federal government, both public and private actors will be given virtual license to design and implement discriminatory policies.
Some of the most egregious elements of this proposed rule include:
- An elimination of the long-standing and well-established principle of “perpetuation of segregation” from the definition of Disparate Impact;
- A new set of “prima facie case” requirements that will make it virtually impossible to bring a successful case;
- A distorted new requirement of “robust causality” that will give rise to endless litigation and help defendants evade liability for obvious discriminatory practices; and
- A statement that arbitrary and grossly discriminatory exclusionary zoning decisions will now be beyond the scope of the Fair Housing Act, unless they are part of a broader “policy.”
PRRAC Executive Director Philip Tegeler called the Notice of Proposed Rulemaking “a deeply cynical proposal that would put most types of modern housing discrimination beyond the reach of the courts.”
PRRAC Deputy Director Megan Haberle also stressed that “HUD is ignoring the historical and current practices that continue to drive segregation in our cities and metro areas.”