NLIHC Provides Sample Comment Letter Opposing HUD’s Proposed Disparate Impact Rule

NLIHC has prepared a sample comment letter for advocates to use to respond to the drastic changes HUD is proposing to the 2013 fair housing “Disparate Impact” rule. HUD’s changes would make it far more difficult for people experiencing various forms of discrimination to challenge the policies or practices of housing providers, governments, and businesses. Comments are due October 18.

HUD proposes placing virtually all of the burden of proving discrimination on people who are in “protected classes” as defined by the Fair Housing Act – people of color, women, immigrants, families with children, people with disabilities, LGBTQ persons, and people of faith. The changes are designed to make it much more difficult, if not impossible, for people in protected classes to challenge and overcome discriminatory effects in housing policies or practices.

The proposed rule would tip the scale in favor of defendants (housing providers, governments, and businesses) accused of discrimination. It would shift the burden of proof entirely to the plaintiffs; victims of discrimination would be asked to try to guess what justifications a defendant might invoke and to preemptively counter those justifications. HUD further proposes making a profitable policy or practice immune from challenge of disparate impact unless the victims of discrimination can prove that a company could make at least as much money without discriminating. In other words, according to HUD, profit justifies discrimination.

NLIHC’s sample comment letter is at: For advocates’ own comments to be most effective, you should tailor the sample comment letter to reflect your organization, locality, and residents; HUD gives far less weight to letters that appear to be mass-produced. 


For more than 45 years, HUD has interpreted the Fair Housing Act to prohibit housing policies or practices that have a discriminatory effect, even if there was no apparent intent to discriminate. There are 13 U.S. Courts of Appeals, 11 of which have had disparate impact cases before them and all have upheld disparate impact and applied a “burden shifting standard.” Because there were minor variations in how the courts and HUD applied the concept of discriminatory effects over the years, a proposed rule in 2011 offered a standard for comment, culminating in a final Disparate Impact rule on February 15, 2013. That final regulation established uniform standards for determining when a housing policy or practice with a discriminatory effect violates the Fair Housing Act. It is the February 15, 2013 final rule that the present HUD is proposing to drastically overhaul. As proposed, the current three-part “burden shifting” standard to show disparate impact would be radically changed to a five-component set of tests.

The three-step burden shifting standard in the current rule is simple:

  1. The plaintiff (the party alleging disparate impact) has the burden of proving that a policy or practice caused or predictably will cause a discriminatory effect.
  2. If the plaintiff satisfies that burden of proof, the burden shifts to the defendant (the business, government, or other entity) to prove that the challenged policy or practice is necessary to achieve one or more of the defendant’s substantial, legitimate, nondiscriminatory interests.
  3. If the defendant satisfies the above burden of proof, then the burden shifts again to the plaintiff to prove that the defendant’s substantial, legitimate, nondiscriminatory interests could be served by another policy or practice that has a less discriminatory effect.

The U.S. Supreme Court upheld the use of disparate impact theory to establish liability under the Fair Housing Act on June 25, 2015 in Texas Department of Housing and Community Affairs v. Inclusive Communities (ICP). The current HUD administration issued an advance notice of proposed rulemaking (ANPR) in the Federal Register on June 20, 2018 (see Memo, 6/25/18). HUD acknowledged then that the Supreme Court upheld the use of disparate impact theory, but HUD asserted that the Court “did not directly rule upon it [the disparate impact rule].” Advocates and attorneys argue, however, that the Court implicitly endorsed the rule by not questioning it or challenging it. Since Inclusive Communities, courts have found the rule is consistent with the Supreme Court’s decision.

NLIHC prepared a summary of key features of the proposed rule. NLIHC also prepared a side-by-side comparison of a key section (§100.500) of the current rule and proposed changes to it.

NLIHC’s sample comment letter is at:

If you are not sure how to submit a comment letter via, here are step-by-step instructions:

A number of civil rights organizations, led by the National Fair Housing Alliance, formed the Defend Civil Rights campaign and website to mobilize responses against HUD’s proposed changes to the current Disparate Impact regulation.

In addition, the National Housing Law Project, the Western Center on Law and Poverty, and the Shriver Center on Poverty and Law launched the Fight for Housing Justice website to similarly mobilize opposition to the proposed changes to the Disparate Impact rule.

An easy-to-read version of the proposed rule is at:

The formal Federal Register version of the proposed rule is at:

NLIHC’s Summary of Key Features is at:

NLIHC’s Side-by-Side of §100.500 is at:

The Defend Civil Rights campaign website is at:

The Fight for Housing Justice campaign website is at:

More about disparate impact is on page 7-8 of NLIHC’s 2019 Advocates’ Guide.