The Trump Administration has proposed a new rule interpreting an important civil rights theory in a way that would significantly weaken enforcement of federal anti-discrimination laws. The rule would make it more difficult to allege and prove discrimination by a housing provider.
For more than 50 years, the Fair Housing Act has served as a vital tool in expanding housing opportunity for protected groups. In that time, the shape of housing discrimination has shifted away from overt, differential treatment, as sophisticated housing providers no longer advertise their intent to exclude protected classes. Housing discrimination increasingly takes the form of “disparate impact,” where a facially-neutral policy or practice has an adverse impact on minorities. The ability to allege discrimination via disparate impact is incredibly important for enforcing fair housing laws.
The Administration’s proposed rule increases the standard for bringing a disparate impact suit to the point that it would become, in practice, close to impossible. It suggests that landlords, banks, insurance companies, and other powerful entities should not be responsible for the discriminatory housing practices they perpetuate, and ignores the fact that housing segregation in the United States remains ubiquitous, and access to housing unequal. The underlying patterns, practices, and problems that create segregated housing have not been solved, especially for people of color – the proposed rule disregards that reality.
The proposal includes multiple provisions that limit civil rights enforcement, including:
- Transforming the current, three-part, burden-shifting test into a five-part prima facie evidentiary test that would require a plaintiff to identify and demonstrate that a specific policy has a discriminatory outcome in order to move past pleading;
- Forcing plaintiffs to plead a “robust causal link” between the defendant’s housing practice and the resulting injury;
- Limiting liability for housing providers when they rely on automated decision-making systems and algorithms that perpetuate discrimination in the housing market;
- Providing insurance companies some safe harbor from liability where they can assert compliance with state law; and
- Changing the strong vicarious liability standard in fair housing law to a piecemeal, state-by-state assessment of agency-principal liability.
These changes, largely inconsistent with existing case law, inhibit civil rights enforcement by making it more difficult for victims of discrimination to bring their case to court.
The proposal is in line with the Trump administration’s attitude toward American race relations – which is either to ignore it or exacerbate it. The proposed rule assumes racism and discrimination are things of the past, and that all that we need to do now is passively denounce overt racism. That fantasy ignores the reality of discrimination in the contemporary United States, particularly within the housing market. It also ignores a growing body of implicit bias research that says preferences against people of color are deeply ingrained in our society, and that deliberate intervention is necessary to prevent such bias from determining social outcomes.
California and the rest of the nation is in the midst of a housing crisis. Additionally, the majority of people in California are part of a protected minority group, but the people with power, money, and influence are still disproportionately white. Without active protections, that dynamic is a recipe for discrimination and stagnation. This proposed rule would cripple access to housing at a time when California and the country can’t afford to lose any ground in the quest to keep people housed.
The proposed rule has not yet been adopted. We and our partners in California and beyond will fight vigorously against the rule as it makes its way through the administrative process. Stay tuned for updates on how you can comment and advocate for the preservation of this essential civil rights enforcement tool.