With Congress on Recess, Agencies Publishes Likely Controversial Regulations on Fair Housing and Immigration
Disparate Impact Rule
Today, HUD published a proposed rule to amend the interpretation of the Fair Housing Act’s disparate impact standard. NAHMA and industry partners have advocated for HUD to update this regulation, following the 2015 Supreme Court decision that upheld the disparate impact standard with notable recommendations. NAHMA expected this proposed rule to be more favorable to housing providers. However, many Fair Housing and tenant advocacy groups strongly oppose this regulatory change. In a press release, HUD stated, “the proposed rule as amended would provide more appropriate guidance on what constitutes unlawful disparate impact to better reflect the Supreme Court’s 2015 ruling in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc.” The rule will be published on Monday for a 60-day public comment period. NAHMA will request comments from the broader membership, including our Fair Housing Committee. HUD shared a version of the proposed rule here.
Below are some of HUD’s talking points on the proposed rule, which HUD provided to NAHMA and industry groups on a July 29 conference call:
WHAT IS DISPARATE IMPACT?
Disparate impact occurs when policies, practices, rules or other systems that appear to be neutral, result in a disproportionate impact on a protected group.
WHY IS A NEW INTERPRETATION NEEDED?
To provide clarity for plaintiffs and defendants in disparate impact cases and to align HUD’s regulations with the U.S. Supreme Court’s ruling in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc.
COMMITTED TO STOPPING DISCRIMINATION:
HUD is committed to making sure housing-related policies and practices treat people fairly. We will always challenge any practice that discriminates against people the law protects.
- HUD’s rule does not change, in any way, protections against intentional discrimination.
- As numerous HUD charges prove, the Fair Housing Act protects people from being denied housing based on their race, color, national origin, religion, sex, familial status, or disability. HUD’s revisions to the Disparate Impact Rule would not change that.
- HUD’s revises rule still allows for practices having a disparate impact to be challenged in court while leveling the playing field for considering such challenges.
HELPING PLAINTIFFS & DEFENDANTS:
HUD’s revisions will allow plaintiffs to bring better-supported claims and defendants to more quickly resolve unsupported claims of discriminatory effect, which is better for all parties.
- Under HUD’s proposed revisions, plaintiffs must lay out specific elements that demonstrate a direct link from a specific practice of the defendant to the alleged disparate impact and to the adverse effects on a member of a protected class.
- Under the proposed revisions, defendants will be able to assert as a complete defense that the actions they took—such as the way they calculate insurance premiums—were required by other Federal, state, or local law.
Public Charge Rule
This week, the Department of Homeland Security (DHS) published in the Federal Register its final rule on “Inadmissibility on Public Charge Grounds.” The final rule, which becomes effective on October 15, amends DHS’ regulations by prescribing how the agency will determine whether non-citizens are inadmissible into the United States because they are likely at any time to become a “public charge” (a person primarily dependent on government assistance or public benefit). The rule expands the definition of “public benefit” to include any federal housing assistance programs (HCV, PBRA, RHS Programs, and LIHTC), in addition to other safety net programs (Medicaid, SNAP, etc.). This regulation has already garnered public attention and will likely face legal challenges.