HUD To Evaluate Disparate Impact Discrimination Standard

On May 10, 2018, the US Department of Housing and Urban Development (HUD) announced that it will seek public comment on its disparate impact regulation, which establishes liability under the Fair Housing Act (FHA) for a policy or practice that results in a discriminatory effect, even if the policy or practice was not motivated by a discriminatory intent.¹ Specifically, HUD stated that it will seek comment on whether the regulation is consistent with the US Supreme Court's decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. __, 2015 WL 2473449 (2015), in which the Court approved of the use of a disparate impact standard in FHA cases, but did not rely on or apply HUD's then-recently promulgated disparate impact regulation. Notably, HUD is in the process of defending a complaint—filed in the US District Court for the District of Columbia by two insurance industry trade associations—which claims that HUD's