Proposed HUD rule would allow disparate impact claims

by Kimberly Atkins The Daily Record Newswire The Department of Housing and Urban Development has proposed a regulation authorizing disparate impact claims under the Fair Housing Act. "HUD has concluded that the Act provides for liability based on discriminatory effects without the need for a finding of intentional discrimination," the regulation, published in the Nov. 15 issue of the Federal Register, states. "[A] discriminatory effect may be found where a housing practice has a disparate impact on a group of persons protected by the Act, or where a housing practice has the effect of creating, perpetuating, or increasing segregated housing patterns on a protected basis." The proposed regulation establishes a uniform standard of liability for disparate impact claims under the Act. The standard sets forth a burden-shifting approach where the plaintiff or complainant first must establish a prima facie case of either disparate impact or perpetuation of segregation. The burden then shifts to the defendant or respondent to prove that the challenged practice "has a necessary and manifest relationship to one or more of the defendant's or respondent's legitimate, nondiscriminatory interests. If that burden is satisfied, the plaintiff must demonstrate that the proffered legitimate nondiscriminatory interests could be served by a policy or decision that produces a less discriminatory effect. The Lawyers' Committee for Civil Rights Under Law praised HUD's actions. "Courts have long recognized that focusing only on discriminatory intent often permits racial discrimination to go unpunished in the absence of evidence of overt bigotry," said the Lawyers' Committee's Fair Housing and Fair Lending Project Director Joe Rich. "Blatant bigoted behavior has been reduced over the years because those who discriminate act more discreetly, making evidence of discriminatory intent harder to find. "But this does not mean that racial discrimination has disappeared and this is a key reason why courts have consistently found discrimination can be proved through a discriminatory impact standard that does not require a finding of intent to discriminate." Published: Thu, Dec 1, 2011