With support from NMHC/NAA, 16 members of the House Financial Services Committee requested in November that the Department of Housing and Urban Development (HUD) consider the “Disparate Impact” rule for consideration under the Administration’s Regulatory Reform Agenda which is aimed at reducing excessive regulations and eliminating compliance uncertainty. The Congressional letter specifically addresses HUD’s 2013 “Implementation of the Fair Housing Act’s Discrimination Effects Standard,” stating that the rule “is inconsistent with recent Supreme Court precedents on disparate impact theory.”
During the Obama Administration HUD actively expanded fair housing compliance and enforcement efforts. Their regulations and guidance documents reinforced an interpretation of disparate impact that conflicted with Supreme Court precedent and created uncertainty for housing providers.
NMHC/NAA continue to seek certainty and/or clarification of HUD enforcement practices on their 2013 disparate impact rule in light of the U.S. Supreme Court’s decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project. While the Court upheld the validity of disparate impact liability under the Fair Housing Act, the ruling offers some limitations on the theory that may prove helpful to businesses facing these types of actions.
NMHC/NAA has also written a letter in support of the Administration’s effort to reduce regulatory burdens, specifically highlighting disparate impact as an issue ripe for consideration and published a series of white papers analyzing the current regulatory and legal environment related to disparate impact. NMHC/NAA is supportive of the Congressional letter and pleased Congress has acknowledged that this is an issue HUD should address.