HUD Confirms “Disparate Impact” Regulations Under Fair Housing Act
February 8, 2013 by Robin Maril, Senior Legislative Counsel
Today the U.S. Department of Housing and Urban Development (HUD) published a regulation confirming the use of the disparate impact theory to bring claims of housing discrimination under the Fair Housing Act. The Act created a framework to root out both plainly intentional discriminatory acts and seemingly “neutral” policies that allow housing discrimination to continue nationwide. In the latter case, even though a policy may lack discriminatory intent, the impact of the policy can still be severely detrimental for individuals and families trying to find housing.
Disparate impact claims under the Fair Housing Act are critical to addressing this type of systemic housing discrimination and segregation in the United States. Going forward, victims of housing discrimination can use today’s disparate impact rule as a tool to challenge a policy that has a discriminatory effect on a protected class. If a policy has a discriminatory effect, disparate impact theory generally states that the policy must be changed so it is both fair and effective. If the policy has a legitimate reason behind it, and no other policy could achieve the same goal with a less discriminatory effect, then the policy stands.
LGBT people, and especially those in communities of color, will benefit directly from this final rule. Although the Fair Housing Act does not specifically protect from discrimination on the basis of sexual orientation and gender identity, many LGBT people who experience discrimination based on their sexual orientation or gender identity may still be covered by the Fair Housing Act. An example of this could include a gay man who is evicted because his landlord believes he will infect other tenants with HIV/AIDS. That situation may constitute illegal disability discrimination under the Fair Housing Act because the man is perceived to have a disability, HIV/AIDS. Similarly, if a a property manager refuses to rent an apartment to a prospective tenant who is transgender. If the housing denial is because of the prospective tenant's non-conformity with gender stereotypes, it may constitute illegal discrimination on the basis of sex under the Fair Housing Act.
Housing providers that receive HUD funding, have loans insured by the Federal Housing Administration, as well as lenders insured by FHA, may be subject to recent HUD program regulations intended to ensure equal access of LGBT persons.
For more information on HUD's policies or to file a complaint of discrimination visit: http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/LGBT_Housing_Discrimination
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