HUD seeks Comments on Possible Amendments to Fair Housing Act's Disparate Impact Standard

The U.S. Department of Housing and Urban Development (HUD) published an advanced notice of proposed rulemaking seeking comment on possible amendments to HUD’s 2013 rule implementing the Fair Housing Act (FHA) disparate impact standard. The ruling seeks comments on whether any changes are appropriate following the Supreme Court’s 2015 ruling that held disparate impact claims as cognizable under the FHA.

In 2015, in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., (Inclusive Communities), the Supreme Court held that disparate impact claims are cognizable under the Fair Housing Act. The Court's opinion referenced HUD's Disparate Impact Rule, but the Court did not extensively review the rule or rely on it for its holding. Rather, the Court undertook its own analysis of the Fair Housing Act and discussed the standards for, and constitutional limitations on, disparate impact claims. The Supreme Court's ruling in Inclusive Communities recognized the availability of disparate impact claims under the Fair Housing Act independent of HUD's Disparate Impact Rule. HUD is reviewing the Disparate Impact Rule to determine what changes, if any, may be necessary in light of the Inclusive Communities decision. As it conducts this review, HUD welcomes public comment on other amendments to the Disparate Impact Rule that may be necessary or helpful.

Comments are due August 20, 2018.