Coalition Supports Reinstatement of the Fair Housing Act’s Discriminatory Effects Standard

Disparate Impact HUD Statement

TRENTON – Acting Attorney General Andrew J. Bruck today announced that he has joined a coalition of 23 Attorneys General in supporting a proposal by the U.S. Department of Housing and Urban Development (HUD) to restore federal fair housing protections that the Trump Administration had attempted to weaken.

HUD’s proposal would reinstate the agency’s 2013 rule addressing when policies and practices violate the Fair Housing Act of 1968 due to their discriminatory effects or disparate impacts, even when they are neutral on their face and are not intended to discriminate.

Last year, the Trump Administration changed the 2013 rule in ways that would have made it harder for plaintiffs alleging civil rights violations to win in court. But that change was temporarily blocked by a federal judge before it took effect, and the new HUD proposal would ensure that it does not become the law.

“The federal Fair Housing Act has been critical to advancing racial justice for more than fifty years,” said Acting Attorney General Bruck. “That’s because the law does not only prohibit intentional and explicit discrimination. It also prohibits practices and policies that perpetuate systemic housing inequity through their discriminatory effects. New Jersey welcomes the Biden-Harris Administration’s action to ensure that the law is able to fulfill its purpose.”

For decades, federal courts have recognized that the Fair Housing Act allows civil rights lawsuits based on the disparate impact that a challenged housing practice or policy has on a protected classification like race. The U.S. Supreme Court has described the disparate impact standard as “consistent with the [Fair Housing Act’s] central purpose.”

By allowing disparate impact liability, according to the Court, the law “permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification” and “may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping.”

The standards for civil rights plaintiffs to prove a disparate impact have been developed by courts over time and were codified by HUD in its 2013 rule. But the rule change announced in 2020 would have imposed new, onerous requirements that would have made it harder for plaintiffs to show that a housing practice or procedure violates the Fair Housing Act.

New Jersey joined multistate coalitions opposed to weakening the 2013 rule in comments submitted to HUD in 2018 and 2019.

At the time, the coalition noted that weakening HUD’s disparate impact rule would make it more difficult to challenge discriminatory zoning ordinances, mortgage lending practices, criminal background check requirements and “English-only” policies, among other barriers to equal opportunity in housing. Many times, the states argued, these not-readily-observed forms of discrimination disproportionately harm minority residents and vulnerable populations, such as domestic violence victims.

In the comments announced today, supporting HUD’s plan to reinstate the 2013 rule, the coalition notes that the U.S. has a “shameful history of engaging in discrimination related to housing.” Even passage of the FHA in 1968, with its ban on overtly discriminatory housing polices, could not wipe away a “legacy of racism and segregation,” the letter observes.

Regardless of any changes in federal rules, New Jersey’s Law Against Discrimination (LAD) prohibits conduct that is intended to treat people differently based on their membership in a protected class (disparate treatment) as well as policies and practices that disproportionately affect those in a protected class, even when the policies and practices are neutral on their face and are not intended to discriminate (disparate impact). The following fact sheets from the Division on Civil Rights contain more information on the LAD’s protections against housing discrimination and bias-based harassment:

• Protections from Discrimination and Bias-Based Harassment in Housing
• Race Discrimination in Housing
• Prohibition on Racial Steering in New Jersey
• Protections from Discrimination or Harassment in Housing Based on Source of Lawful Income
• Protections from Discrimination or Harassment in Housing Based on Gender Identity or Expression
• Protections from Sexual Harassment in Housing Under New Jersey Law
• Emotional Support Animals in Housing

Anyone who believes their fair housing rights have been violated can file a complaint with DCR by visiting njcivilrights.gov or calling 1-833-NJDCR4U (833-653-2748).

###