The U.S. Department of Housing and Urban Development (HUD) today published a proposed rule to amend the HUD interpretation of the Fair Housing Act’s disparate impact standard.

HUD says the proposed rule, as amended, would provide more appropriate guidance on what constitutes unlawful disparate impact, and it does a better job reflecting the Supreme Court’s 2015 ruling in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc.

“There is a lack of affordable housing in America today,” says HUD Secretary Ben Carson. “This proposed rule is intended to increase legal clarity and promote the production and availability of housing in all areas while making sure every person is treated fairly under the law. As we have shown time and again, we will challenge any practice that discriminates against people that the law protects.”

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HUD’s proposed rule provides a framework for establishing legal liability for facially neutral practices that have unintended discriminatory effects on classes of persons protected under the Fair Housing Act. The rule has no impact on determinations of intentional discrimination.

In its 2015 decision, the Supreme Court upheld the use of a “disparate impact” theory to establish liability under the Fair Housing Act for business policies and local ordinances, even if the policy or ordinance is neutral – in intent and application – if it disproportionately affects a protected class without a legally sufficient justification.

“At the end of the day, this rule not only increases Americans’ access to fair and affordable housing, but also permits businesses and local governments to make valid policy choices,” says Carson.

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