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Friday, June 14, 2024 | Back issues
Courthouse News Service Courthouse News Service

Discriminatory Housing Practice Liability Defined

WASHINGTON (CN) - The Department of Housing and Urban Development has proposed a uniform standard for determining when a housing practice with a discriminatory effect violates the Fair Housing Act.

In the proposed rule, the HUD interprets the Fair Housing Act broadly, as have the courts, to impose liability when there is a discriminatory effect, whether or not there was intent to discriminate.

Under the new rule, liability would be determined by a burden-shifting approach, as the HUD explains in the preamble to the proposed rule:

"The plaintiff or complainant first must bear the burden of proving its prima facie case of either disparate impact or perpetuation of segregation, after which the burden shifts to the defendant or respondent to prove that the challenged practice has a necessary and manifest relationship to one or more of the defendant's or respondent's legitimate, nondiscriminatory interests. If the defendant or respondent satisfies its burden, the plaintiff or complainant may still establish liability by demonstrating that these legitimate nondiscriminatory interests could be served by a policy or decision that produces a less discriminatory effect."

The new rule would apply to both public and private entities, and would make it clear that "a legally sufficient justification for discrimination does not defeat liability for a discriminatory intent claim once the intent to discriminate has been established," according to the HUD.

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