Removing Barriers Blog

Proposed Return of the 2013 Disparate Impact Rule
Posted June 28, 2021 by CUNA Advocacy

As expected, HUD has proposed to reinstate its 2013 Rule titled “Implementation of the Fair Housing Act’s Discriminatory Effects Standard.” 

You may recall that in 2015, the Supreme Court issued an opinion that confirmed the FHA provides a basis for disparate impact claims, but that there must be protections in place to ensure violations represent more than just a statistical disparity. In 2020, under then-Secretary Carson, HUD published a rule titled “HUD's Implementation of the Fair Housing Act's Disparate Impact Standard” which represented a significant overhaul of HUD’s past interpretation of disparate impact standard. The 2020 Rule never became effective because a preliminary injunction was issued, staying HUD's implementation and enforcement of the rule as likely being arbitrary and capricious and “effectively neutering disparate impact liability under the FHA.” HUD’s recent proposal would reinstate the 2013 Rule. HUD states that it believes the 2013 Rule was already consistent with the Supreme Court’s finding in Inclusive Communities and that no further amendments are necessary. Comments in response to the proposal are due by August 24, 2021, if you have thoughts email Elizabeth LaBerge at elaberge@cuna.coop