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HUD Proposes Changes to its 2013 Fair Housing Disparate Impact Rule

Jim Armstrong, PHADA Policy Analyst

On August 19, HUD published proposed changes to its 2013 fair housing disparate impact rule designed to bring the regulation into conformance with standards established by the Supreme Court of the United States in its 2015 Inclusive Communities decision. On August 18, 2018, PHADA submitted comments in response to an Advanced Notice of Proposed Rulemaking and participated in comments submitted by a consortium of multi-family housing organizations. The import of those comments was that HUD should revise the rule to incorporate the standards described by the U.S. Supreme Court in its Inclusive Communities decision.

HUD has proposed significant changes to what HUD will consider to be a prima facie case in a disparate impact complaint. The old standard was a demonstration that a protected class under the Fair Housing Act was disproportionately adversely affected by a practice. HUD also accepted a burden shifting model for proving and defending against a fair housing complaint that had been used by many federal courts. The Supreme Court was silent on the matter of burden shifting. The new rule does not follow the burden shifting model. If the proposed rule becomes effective, a complainant must “state facts plausibly alleging:”

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