The Fair Housing Act (FHA) was ratified in 1968 to ensure marginalized and minority communities have equal opportunity access to safe, stable housing. It has been the strongest protection against unjustified and discriminatory housing practices, both overt and covert. In the fifty years since the FHA was enacted, exclusionary housing policies may be more difficult to distinguish, but sadly are still in effect. The Disparate Impact Rule (DIR), has been the FHA’s sharpest enforcement tool for decades. It’s a means for affected parties to directly challenge concealed inequities through algorithmic measurements of risk or creditworthiness, unwarranted tenant screening tools, exclusionary marketing schemes, segregated rezoning, and general unjust policies.
The Trump Administration’s new rule, proposed in August, mitigates the DIR by requiring that potential victims of housing discrimination must meet a significantly increased ‘burden of proof’ of violations. According to the proposal, a complainant must now prove five different supporting elements to pursue their claim. Conversely, the change allows more leeway for a respondent’s successful rebuttal by choosing one of three methods. In one such method a defendant can claim that a policy is necessary for business even if it does disproportionately impact protected communities.
This new rule will undermine the strength of the DIR by reinforcing covert systemic barriers to fair housing. Meanwhile sellers, landlords and state insurers are protected from adhering to equitable standards of practice, thus preventing the most vulnerable communities from access to a basic civil right.
Although public commenting has recently closed, readers can still share their comments here or for more information contact David H. Enzel, Deputy Assistant Secretary for Enforcement Programs, Office of Fair Housing and Equal Opportunity, Department of Housing and Urban Development, 451 7th Street SW, Room 5204, Washington, DC 20410, telephone number (202) 402-5557.