AFSA Comments on HUD Disparate Impact Proposed Rule

AFSA last week commented on the Department of Housing and Urban Development’s (HUD) proposed rule amending its interpretation of the Fair Housing Act’s disparate impact standards. Specifically, HUDs proposed rule changes move to align the standard with the Supreme Court’s decision in Inclusive Communities.

In the letter, AFSA Vice President of Legal and Regulatory Affairs Celia Winslow wrote that “AFSA applauds the Department’s efforts to align the Proposed Rule with controlling Supreme Court precedent and believes the Proposed Rule should be finalized as drafted.”

Following controlling case law, HUD’s proposed rule ensures that “adequate safeguards at the pleading stage prevent ‘abusive disparate-impact claims.’” AFSA discussed in depth the five elements outlined in HUD’s proposed rule.

1.       That the challenged policy or practice is arbitrary, artificial, and unnecessary to achieve a valid interest or legitimate objective such as a practical business, profit, policy consideration, or requirement of law.

2.       That there is a robust causal link between the challenged policy or practice and a disparate impact on members of a protected class that shows the specific practice is the direct cause of the discriminatory effect.

3.       That the alleged disparity caused by the policy or practice has an adverse effect on members of a protected class.

4.       That the alleged disparity caused by the policy or practice is significant.

5.       That there is a direct link between the disparate impact and the complaining party’s alleged injury.

AFSAs extensive comments on the proposed rule are available here.