HUD Declares ‘A New Day,’ Proposes Changes To Rules Governing Discriminatory Effects

HUD Declares ‘A New Day,’ Proposes Changes To Rules Governing Discriminatory Effects

HUD is proposing changes to the rules governing Fair Housing Act discriminatory effects and asking for a return to 2013 rules, dropping changes put in during the Trump administration, according to a release.

The rules being proposed advocate going back under the 2013 rule, where HUD says “the discriminatory-effects framework was straightforward: A policy that had a discriminatory effect on a protected class was unlawful if it did not serve a substantial, legitimate, nondiscriminatory interest or if a less discriminatory alternative could also serve that interest.”

Then the rule change in 2020 under the Trump administration “complicated that analysis by adding new pleading requirements, new proof requirements, and new defenses, all of which made it harder to establish that a policy violates the Fair Housing Act. HUD now proposes to return to the 2013 rule’s straightforward analysis,” according to the release.

U.S. Department of Housing and Urban Development (HUD) Secretary Marcia L. Fudge said the proposed rule is entitled “Restoring HUD’s Discriminatory Effects Standard.” The publication proposes to rescind the department’s 2020 disparate-impact rule and restore the 2013 discriminatory-effects rule. HUD states that it believes the 2013 rule is “more consistent with decades of case law and better effectuates the act’s broad remedial purpose of eradicating unnecessary discriminatory practices from the housing market.”

Secretary Emphasizes Lifting Barriers to Diverse Communities

“We must acknowledge that discrimination in housing continues today and that individuals, including people of color and those with disabilities, continue to be denied equal access to rental housing and homeownership,” Fudge said in the release. “It is a new day at HUD-and our department is working to lift barriers to housing and promote diverse, inclusive communities across the country.”

She said the proposed rule change involving the discriminatory-effects rule “is the latest step HUD is taking to fulfill its duty to ensure more fair and equitable housing.”

The Fair Housing Act prohibits discrimination in housing and housing-related services because of race, color, religion, national origin, sex, familial status, and disability.

The discriminatory effects doctrine is a tool for addressing policies that cause systemic inequality in housing. It has long been used to challenge policies that unnecessarily exclude people from housing opportunities, including zoning requirements, lending and property insurance policies, and criminal records policies.

“Accordingly, having a workable discriminatory-effects standard is vital for the accomplishment of the Biden-Harris Administration’s policy goal of a housing market that is free from both intentional discrimination and policies and practices that have unjustified discriminatory effects,” HUD said in the release.

HUD’s 2013 discriminatory-effects rule codified long-standing case law for adjudication of Fair Housing Act cases under the discriminator- effects doctrine, for cases filed administratively with HUD and for federal court actions brought by private plaintiffs.

The public will have 60 days to file comments on the rule change.

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