WASHINGTON — The Department of Housing and Urban Development is proposing to significantly raise the bar for civil rights groups seeking to prove that a landlord, insurance company or lender is guilty of housing discrimination.
The proposal, first revealed by Politico, would force civil rights groups to jump over five hurdles, instead of three, to demonstrate that a policy has had a discriminatory effect that violates the Fair Housing Act of 1968, which protects against discrimination. The proposal also maps out how landlords and other defendants can successfully fight back against those claims and states that the Fair Housing Act does not override state laws that regulate the business of insurance.
Civil rights groups have long used analyses of the effect of practices and policies to show that those practices and policies have harmed minority groups protected by federal civil rights laws. Such disparate analyses have been used to uncover discrimination in an era when racial prejudice and bigotry can be more subtle than in the past.
And the changes would come at a delicate time. Though minority unemployment is at record lows, black homeownership levels have declined to rates not seen since the 1960s.
“This effort to turn back the clock on civil rights is coming at a most inopportune time, and the Trump administration is keenly aware of it,” Lisa Rice, the president of the National Fair Housing Alliance, said in a call with reporters.
Civil rights groups fear that the Trump administration’s new rule will make it far harder to challenge housing discrimination. Sherrilyn Ifill, the president and director counsel of the NAACP Legal Defense and Educational Fund, called the five-part requirement “an incredible and extraordinary burden” that makes it “virtually impossible to prevail.” On top of that, she said in a call with reporters, the defenses made available to the defendants are “astonishing.”
But stopping the change will be difficult. Congress has 15 days to review the proposal. Once it has been published on the Federal Register, there will be a 60-day comment period. And the HUD rule might set the standard for much of the federal government. Similar action is under consideration at the Education and Justice Departments.
The proposed change dates to last summer, when Anna Maria Farías, HUD’s assistant secretary for fair housing and equal opportunity, announced that she would be amending the standards for discrimination that the Obama administration adopted in 2013. Ms. Farias cited a Supreme Court decision in 2015 on discrimination claims in fair housing.
The new rule, which has yet to be published in the Federal Register, would force those initiating lawsuits not only to show that a specific housing policy has a discriminatory effect, but also to show that the effect is “arbitrary, artificial and unnecessary” in achieving a “legitimate objective.” There must also be a “robust causal link” between the specific policy and the discriminatory effect.
Civil rights groups would also have to show that the policy has an adverse effect on many members of a protected class — not just one individual in a minority group protected by civil rights law — and that the adverse effect is significant.
The proposed rule also describes how a defendant can defeat claims that maintain that his or her use of computer models harms minority groups. And it would declare that the Fair Housing Act “is not intended to invalidate, impair or supersede” any state laws that regulate the business of insurance, which was a worry that came up last year after a rule approved in the last year of the Obama administration specified that discrimination claims could be made against insurance companies, too.
Ms. Ifill said that rather than comply with the Supreme Court’s ruling, the proposed rule advanced restrictive regulations far beyond the court’s prescriptions.
“It is important to see the development and promulgation of these rules for what they are. This is what those who have stood in opposition to the Fair Housing Act were not able to accomplish in the United States Supreme Court,” she said.
She pointed to the department’s defenses against the use of computers models. Under the new rule, defendants could defeat claims that target their computer models by showing that the model is a standard in the industry. “This means that if an entire industry is engaged in discrimination, it essentially insulates the discriminatory conduct of an individual actor,” Ms. Ifill said.
But Roger Clegg, the general counsel of the conservative Center for Equal Opportunity, applauded the changes and said they were in line with the Supreme Court ruling. But at the same time, he suggested that the court had made a mistake in its ruling. Current policies force people to take race into account in setting housing policies, he said, “which is exactly what the civil rights laws are supposed to discourage people from doing.”