HUD Seeks Public Comment On Disparate Impact Rule

On June 20, the U.S. Department of Housing and Urban Development ("HUD") published an advance notice of proposed rulemaking ("ANPR") that seeks public comment on whether and how to amend its 2013 rule under the Fair Housing Act ("FHA"). The ANPR follows HUD's May 10 announcement of its intention to formally seek public comment on the rule in light of the Supreme Court's 2015 decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., in which the Court recognized disparate impact as a cognizable theory under the FHA, but imposed meaningful limitations on the application of the theory.

The ANPR, together with the statement of Bureau of Consumer Financial Protection Acting Director Mick Mulvaney this spring that the Bureau would be "reexamining the requirements of ECOA" in light of "a recent Supreme Court decision" (i.e., Inclusive Communities), signals that the Trump administration is likely seeking to retreat from the