ABA, Trade Groups Welcome HUD Proposal on ‘Disparate Impact’ Claims

The American Bankers Association, the Consumer Bankers Association and the Housing Policy Council today welcomed the Department of Housing and Urban Development’s proposed standard for bringing “disparate impact” claims under the Fair Housing Act.

The associations said that HUD’s proposal “strikes the appropriate balance” envisioned by the Supreme Court’s 2015 decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, which recognized disparate impact analysis to demonstrate discrimination claims under the FHA but added key limitations to ensure the burden of proof in disparate impact cases is with the plaintiffs. The associations supported the five elements HUD is proposing that must be included in disparate impact claims under the FHA, as well as the three methods proposed for defendants to rebut disparate impact claims.

ABA, CBA and HPC also urged HUD to clarify that punitive damages and civil penalties are not proper remedies in disparate impact cases, which involve unintentional conduct without discriminatory intent. For more information, contact ABA’s Joseph Pigg or Kitty Ryan.