Disparate Impact (Discriminatory Effects Standard)

The Discriminatory Effects Standard (commonly known as Disparate Impact) of the Fair Housing Act of 1968 upholds our societal obligation to fairness by respecting and protecting equal opportunity. The goal of the Disparate Impact standard is to root out unjustified practices that discriminate against groups protected by the Fair Housing Act, even where there is no specific evidence of discriminatory intent.  The standard is based on an understanding of how hidden, stubborn prejudice can result in needless, facially neutral policies that discriminate against protected classes in practice.  Without clear support for this standard from the federal government, both public and private actors will be given virtual license to design and implement discriminatory policies. 

PRRAC joined a campaign along with the National Fair Housing Alliance, The Leadership Conference on Civil and Human Rights, NAACP Legal Defense & Educational Fund, Inc., Lawyers’ Committee for Civil Rights Under Law, American Civil Liberties Union, and Center for Responsible Lending. As national civil rights organizations, we are united by our belief in equality and fairness, our desire to educate the public on important civil rights protections, and our commitment to #DefendCivilRights from those looking to weaken them.

Open Communities Alliance v. HUD (2020)

In October 2020, PRRAC joined in a federal lawsuit to challenge the Trump Administration’s “disparate impact” rule, which adds a series of new hurdles for victims of discrimination at the pleading stage as well as adding unprecedented new defenses, making it virtually impossible to prevail on a disparate impact claim under the Fair Housing Act. Most egregiously, the rule eliminates “perpetuation of segregation” as a basis for liability under the Act. The plaintiffs include the Open Communities Alliance (CT) and SouthCoast Fair Housing (MA), represented by lawyers from the ACLU, Lawyers Committee, PRRAC, and Cohen & Milstein.

• Nationwide Injunction Against the 2020 DI Rule – Massachusetts Housing Center and Housing Works, Inc v. HUD (October 2020)
• Open Communities Alliance HUD Complaint vs the State of Connecticut (August 2020)
• Formal Complaint: OCA v. HUD (2020)
• Press Release: ACLU, Open Communities Alliance, Southcoast Fair Housing, Civil Rights Orgs File Suit Against Department of Housing and Urban Development Rule Gutting Fair Housing Protections (October 2020)
• New Federal Rule Will Make it Harder to Challenge Discrimination in the Housing Industry, Lawsuits Allege (Washington Post, October 2020)

Select Comment Letters

• Comment Letter: Implementation of the Fair Housing Act’s Disparate Impact Standard (PRRAC & Klein Hornig LLP, October 2019)
• Comment Letter: Implementation of the Fair Housing Act’s Disparate Impact Standard (PRRAC, EJ, & Fair Housing Orgs, October 2019)

Other Selected Comment Letters

Relevant materials

• “Disparate Impact and an Antisubordination Approach to Civil Rights and Urban Policy” by Justin Steil (May-August 2019 P&R Issue)
• PRESS RELEASE: PRRAC Condemns HUD’s New Assault on the Fair Housing Act (August 2019)
• Notice of Proposed Rulemaking Regarding the Discriminatory Effects Standard (July 2019)
• HUD’s Proposed Discriminatory Effects Standard Rule and Comments (2018)
• “Honoring the Promise” by Former HUD Secretary Shaun Donovan (January-March 2018 P&R Issue)
• Exec. Order 13777 Fair Housing Comment Letter Submitted by PRRAC and Coalition Partners (2017)
  • Directs each federal agency to form a “Regulatory Reform Task Force” and identify regulations to modify or rescind. In response to HUD’s Federal Register notice.
• ICP v. Texas Amicus Briefs (2014)
• HUD’s Proposed Discriminatory Effects Standard Rule and Comments (2013)

Disparate Impact News and Opinion

• • • Column: HUD’s Attacks on Civil Rights Protections Contradict Science and the Supreme Court (Michigan Advance) October 10, 2019
    • Civil Rights Turned Topsy-Turvy: The Trump Administration is Moving on Two Fronts to Undo Civil Rights Protections. (New York Times Opinion) August 29, 2019
    • The Effects of Housing Discrimination on Health Can Reverberate for Decades (The Hill Opinion) August 27, 2019
    • Who’s to Blame When Algorithms Discriminate? (New York Times) August 20, 2019
    • The Trump Administration’s Assault on Fair Housing (Take Care Blog) August 19, 2019
    • How HUD Could Dismantle a Pillar of Civil Rights Law (CityLab) August 16, 2019