Contact: Chandra Palmer
(215) 625-0700 x 12
For months, fair housing advocates have been talking about what could happen to the 2013 Disparate Impact rule if this HUD administration implements its proposed changes. On August 16, 2019, HUD released the proposed revised Disparate Impact rule. According to HUD, the new proposed disparate impact rule more appropriately reflects the Supreme Court’s 2015 ruling. The public must read the content to comment on it or accept changes that will make the future rule almost impossible for disabled persons and members of other protected classes capable of fighting common forms of unintentional housing discrimination.
“Preserving civil rights is a democratic process,” said Angela McIver, chief executive officer of the Fair Housing Rights Center in Southeastern Pennsylvania. “The public should not let this historic moment go by without resisting the new revised Disparate Impact Rule, which is a Trojan horse. It appears to offer pathways to fair and affordable housing; however, it actually disempowers protected classes of their ability to prove covert forms of housing discrimination.”
On April 11, 1968, President Johnson signed Title VIII of the Civil Rights Act of 1968, also known as the federal Fair Housing Act (herein referred to as Title VIII of Civil Rights Act of 1968 or the Fair Housing Act) as amended. The Fair Housing Act protects people because of race, color, religion, sex, national origin, familial status, and disability. The Fair Housing Act also covers most housing transactions including rental, sales, lending, insurance, and appraisals. Another important aspect of the Fair Housing Act is that it holds government accountable for not using federal funding to discriminate against protected classes. For example, a local government that receives Community Development Block Grant funding must demonstrate that it takes active steps to remove structural and institutional barriers that prevent housing choices for all protected classes.
In 2013, the Obama administration published a final Disparate Impact rule that advocates and attorneys use to fight unintentional forms of housing discrimination in the absence of direct evidence. For example, when data shows that a policy has a harsher effect on one or more protected classes, the data may serve as a tipping point in a fair housing complaint. If HUD’s revised Disparate Impact rule changes how data is used to prove that discrimination occurs, it could reduce the number of victims that come forth to seek social justice to be made whole.
According to HUD, in 2015, in Texas Department of Housing and Community Affairs v. Inclusive Communities, Inc. the Supreme Court held that disparate impact claims are cognizable under the Fair Housing Act. The Court’s opinion referenced HUD’s 2013 Disparate Impact Standard, but the Court did not rely on it for its holding. Rather, the Court undertook its own analysis of the Fair Housing Act and discussed the standards constitutional questions and necessary limitations regarding, disparate impact claims. HUD is taking advantage of the manner in which the Court handled the Inclusive Communities, Inc. case to implement a new burden-shifting framework that entails five parts compared to three parts under the 2013 Disparate Impact rule. Advocates are concerned that protected classes, that have limited resources, will struggle to comply with the revised burden-shifting framework to prove their claims.
“To stop realtors, insurers, and lenders from preventing protected classes from exercising their civil rights in housing, the public must get involved and not rely on civil rights agencies exclusively. The National Fair Housing Alliance recommends that the public upload 100,000 public comments to signal the Trump administration,” said McIver. “Too many people died and suffered for basic human rights in housing. In 2004, African American homeownership was at 49.1 percent. By 2018, the rate of homeownership for African Americans was comparable to 1960, a Jim Crow year that predates the passage of the federal Fair Housing Act.”
Housing is not the only civil right that could experience a major setback. Education, employment and other civil rights may follow what happens to HUD’s Disparate Impact rule at the close of the public comment period on October 18, 2019 at 11:59 PM.
HUD has allotted the public 60-days (August 18, 2019 through October 19, 2019) to submit public comments at http://www.regulations.gov.
To submit public comments directly to HUD, access the Federal eRulemaking Portal at http://www.regulations.gov. For more information on the proposed Disparate Impact rule and what the public can do to save and strengthen the 2013 rule, contact the Fair Housing Rights Center in Southeastern Pennsylvania (FHRC) at 215-625-0700 or www.fairhousingrights.org.
The mission of the Fair Housing Rights Center in Southeastern Pennsylvania is to ensure equal access to housing opportunities for all persons.