NLIHC signed on to four letters in support of HUD’s proposed rule that would reinstate the 2013 Disparate Impact Rule (see Memo, 6/28). Two of the letters provide overarching reasons for reinstating the 2013 Disparate Impact Rule: one written by the National Fair Housing Alliance, the other written by the National Housing Law Project. Another two letters focus on the adverse effects the loss of the 2013 rule would have on specific populations: the National Women’s Law Center addresses concerns for women, children, and LGBTQI people, and the National Alliance for Safe Housing addresses concerns for survivors of gender-based violence.
The Trump administration issued a radically different final disparate impact rule on September 24, 2020 (see Memo, 9/14/20). However, the U.S. District Court for the District of Massachusetts issued a preliminary nationwide injunction on October 25, 2020 that halted its implementation (see Memo, 11/2/20). Consequently, the 2013 Disparate Impact Rule remained in effect. Nevertheless, the Biden administration proposed recodifying the 2013 rule.
The 2020 rule was designed to make it virtually impossible for people experiencing various forms of discrimination to challenge the policies and practices of businesses, governments, and housing providers. That rule would have made drastic changes to the 2013 rule, discarding the well-crafted and time-tested three-part burden-shifting standard, replacing it with a set of tests that place the burden on people in the Fair Housing Act’s protected classes who are experiencing housing discrimination.
The proposed reinstatement of the 2013 rule returns the definition of “discriminatory effect” that was eliminated from the 2020 rule, which also erased “perpetuation of segregation” as a recognized type of discriminatory effect distinct from disparate impact. The proposed rule will reaffirm that perpetuation of segregation remains a basis for contending that a policy has an unlawful discriminatory effect. The proposed rule also recodifies the principle that actions that could predictably result in a disparate impact on a group of persons in any of the protected classes are prohibited by the Fair Housing Act.
The 2013 rule works to protect against discriminatory impacts based on the protected classes by courts weighing the rights and needs of Fair Housing Act protected populations disproportionately affected by housing discrimination with the needs of businesses, housing providers, and governments. A business, housing provider, or government must stop using a policy or practice that has a discriminatory effect when there are less harmful alternative policies or practices that achieve their legitimate nondiscriminatory interest, even if that entity has a legitimate basis for the practice or policy.
The 2013 rule properly codified the Fair Housing Act’s disparate impact standard that has prevailed in the courts, is consistent with decades of case law, and has been used by regulators, including but not limited to HUD, for more than 45 years. The 2013 rule’s three-part burden-shifting framework provided a standard that was workable and that balanced plaintiff and defendant interests. The Supreme Court in Inclusive Communities ratified the 2013 rule’s burden-shifting framework and placed it in a well-established legal framework comparable to other federal civil rights laws, including Title VII pertaining to employment discrimination.
With the 60-day public comment period now closed, HUD must consider all comments and may make changes to the rule based on substantive information and concerns provided by commenters. Once the changes are complete, and after another review by the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB), HUD will publish a final rule in the Federal Register. The introduction, or preamble, to the final rule must indicate all meaningful comments received and HUD must explain why each was accepted or rejected. All the comments that were submitted about the proposed rule are slowly being added to regulations.gov.
The proposed rule is at: https://bit.ly/2UrATvQ
The National Fair Housing Alliance letter is at: https://bit.ly/38xQ0YJ
The National Housing Law Project letter is at: https://bit.ly/3BhwvzF
The National Women’s Law Center letter is at: https://bit.ly/3Bwbba3
The National Alliance for Safe Housing letter is at: https://bit.ly/3znghER