NLIHC submitted comments supporting HUD’s proposed rule implementing the Fair Housing Act’s “discriminatory effects” standard (see Memo, 11/18/11). The proposed regulation formalizes HUD’s long-employed interpretation that the Fair Housing Act prohibits housing practices having a discriminatory effect.
HUD would define “discriminatory effect” as a housing practice that actually or predictably results in a “disparate impact” on a group of people in one of the protected classes, or that has an effect on the community as a whole by creating, perpetuating, or increasing housing segregation. The “protected classes” specified in the Fair Housing Act (also known as Title VIII) are race, color, religion, sex, disability, national origin, and familial status.
HUD’s interpretation is consistent with that of federal courts, which for more than forty years have held that liability under the Fair Housing Act may be established by showing that a neutral policy or practice either has a disparate impact on a protected group, or that it creates, perpetuates or increases segregation.
While NLIHC endorsed the proposed rule, the comment letter agreed with the suggested improvements in the comments submitted by the Housing Justice Network, the National Fair Housing Alliance, and the Consortium for Citizens with Disabilities. In particular, advocates urged that the final rule assign to defendants the obligation to demonstrate that there are no less discriminatory alternatives to the practices plaintiffs claim have a discriminatory effect, because defendants have greater access to information than plaintiffs regarding available alternatives and the advantages and disadvantages of those alternatives.
NLIHC’s comment letter is at: http://nlihc.org/doc/NLIHC_Comments_Discriminatory_Effects_1-17-12.pdf
The Housing Justice Network letter is at: http://nlihc.org/doc/HJN_Comments_Discrimnator_Effects_1-17-12.pdf
The National Fair Housing Alliance letter is at: http://nlihc.org/doc/NFHA_Comments_Discriminatory_Effects_1-17-12.pdf
The Consortium for Citizens with Disabilities letter is at: http://nlihc.org/doc/CCD_Comments_Discriminator_Effects_1-17-12.pdf
The proposed rule is at http://www.gpo.gov/fdsys/pkg/FR-2011-11-16/pdf/2011-29515.pdf