HUD’s disparate impact rule is a ‘get out of jail free’ card

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The Department of Housing and Urban Development’s final rule on the disparate impact doctrine guts one of the most important fair housing tools, making it far more difficult for victims of housing discrimination to seek justice and for communities to combat segregation.

The rule, finalized in September, also comes at the worst possible time when the coronavirus pandemic continues to plague the nation and as the ensuing economic crises challenge families, particularly for communities of color.

In order to establish disparate impact, the final rule requires plaintiffs to show that the policy or practice in question meets the five following conditions:

First, that it has a discriminatory effect. Second, that the policy or practice is arbitrary, artificial and unnecessary to achieve a valid interest or legitimate objective. Third, that it is a direct cause of the discriminatory effect. Fourth, that the alleged disparity is significant. And lastly, that there is a direct relation between the injury asserted and the alleged injurious conduct.

The defendant can rebut the claim by showing that the policy advances a valid interest (like profitability) or is “predictive” of an outcome. The plaintiff would then have the opportunity to show that the interests were not valid, or that a less discriminatory policy or practice would serve the interest without imposing greater costs or burden on the defendant.

As a result, it will be much harder for plaintiffs to prove discrimination in housing cases.

National Fair Housing Alliance president and CEO Lisa Rice said the final rule is “even more damaging than we previously thought.”

“At its core this rule promotes gerrymandering, redlining, and segregation, three historically racist and discriminatory practices,” she said.

As Rice indicated, the final rule was even worse than what many expected based on what was included in the proposed rule. Even that proposal was rejected by major players in the housing industry including Bank of America, Quicken Loans and the National Association of Realtors.

“Given the recent protests and events, and the recognition of where we are as a country, we would respectfully offer that the time is not right to issue a new rule,” Bank of America Vice Chairman Anne Finucane wrote in June.

It is difficult to envision a fact pattern that would result in a finding of disparate impact discrimination. The burdens plaintiffs must meet are simply too high, and the defenses for industry are too expansive.

This is truly a “get out of jail free” card for housing providers that can now virtually disregard the impact of their policies and practices, at least as far as the Fair Housing Act goes. It is not an exaggeration to say this rule guts the disparate impact standard of that law.

It also comes at a time when the Trump administration has continued to strip the nation’s fair-housing and fair-lending laws.

As often stated, elections have consequences. The presidential election of 2016 certainly did. What will we say about 2020?

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Racial Bias Gender discrimination Fair Housing Act Mortgages Housing market Housing HUD