HUD to Seek Public Comment on “Disparate Impact” Regulation

The U.S. Department of Housing and Urban Development (HUD) recently announced that it will formally seek the public’s comment on whether its 2013 Disparate Impact Regulation is consistent with the 2015 U.S. Supreme Court ruling in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc.

“HUD remains committed to making sure housing-related policies and practices treat people fairly,” said HUD Secretary Ben Carson. “We will always challenge any practice that discriminates against people the law protects.”

The Department’s Disparate Impact Regulation provides a framework for establishing legal liability for facially neutral practices that have discriminatory effects on classes of persons protected under the Fair Housing Act.

The Supreme Court upheld the use of a ‘disparate impact’ theory to establish liability under the Fair Housing Act in cases where seemingly neutral practices have a discriminatory effect on protected classes of persons. While the Supreme Court referred to HUD’s Disparate Impact Regulation in its Inclusive Communities ruling, it did not directly rule upon it.

Shortly, HUD will formally seek the public’s comment on whether its Disparate Impact Regulation is consistent with the Supreme Court’s Inclusive Communities ruling.