Washington, DC - HUD’s new proposed rule on disparate impact is the latest in a series of efforts by the Trump administration to gut civil rights and fair housing protections. Under this administration, HUD has all but stopped high-level fair housing enforcement and has suspended rules and eliminated tools used by local communities to address segregation. Now HUD seeks to weaken an important enforcement tool for combatting discrimination, further restricting access to housing for people of color, seniors, people with disabilities, families with children, victims of domestic violence, and others.
The Fair Housing Act prohibits housing policies and practices that have a discriminatory effect, even if there was no obvious intent to discriminate. Policies and practices that have the effect of creating disparate impact can be just as harmful to society as outright intentional discrimination. Too often, we have seen such policies at the federal, state, and local levels perpetuate segregation and prevent equal access to housing.
Eleven U.S. Courts of Appeals and the Supreme Court have ruled that violations of the Fair Housing Act can be established through a disparate-impact standard of proof. In writing its 2013 Disparate Impact regulation, HUD codified these decades of federal court jurisprudence to establish uniform “burden-shifting” standards for determining when a housing practice or policy with a discriminatory effect violates the Fair Housing Act. These standards were implicitly adopted by the Supreme Court and confirmed in subsequent court cases.
Now HUD wants to create a new and much higher bar for proving discriminatory outcomes. These changes are designed to make it much more difficult, if not impossible, for communities of color to challenge discriminatory effects in housing. With this harmful proposal, the Trump administration continues its pattern of attempts to weaken and disrupt the federal government’s responsibility to uphold its fair housing obligations under the law. Rather than attempting to weaken the disparate impact rule, HUD should be working to vigorously enforce it.