NMHC and NAA filed comments with the U.S. Department of Housing and Urban Development (HUD) voicing strong support for the agency’s newly released Proposed Rule on Disparate Impact under the Fair Housing Act (FHA). We have long-raised concerns that HUD’s existing disparate impact doctrine created uncertainty for housing providers and undermined the use of necessary business practices. The proposed revisions directly address a number of our priorities and is an important step in addressing barriers to new apartment development and housing affordability.
Of concern, disparate impact theory creates liability for seemingly neutral policies that nonetheless have a discriminatory effect on a protected class. NMHC and NAA have documented the diverging disparate impact standards being used by HUD and various courts, and are encouraged that the Proposed Rule better aligns the HUD standard with recent legal outcomes.
We are encouraging HUD to expeditiously finalize the rule to ensure that housing providers can execute necessary business practices without running afoul of fair housing requirements. However, over 45,000 comments were submitted to HUD during the review period, many from individuals opposing any changes to the existing rule, which raises uncertainty as to the timing and content of the Final Rule. In the interim, all previous guidance and recommendations on FHA compliance and disparate impact liability remain in effect.
For more information on disparate impact, please visit our advocacy page.