HUD to Ask for Public Comment on Disparate Impact Rule

HUD recently announced that it will seek public 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.

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 (in particular, on the regulation’s burden-shifting framework).