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HUD Wants Feedback on Disparate Impact

Regulation implemented 5 years ago

May 10, 2018

By Mortgage Daily staff



A controversial rule finalized five years ago implementing a Disparate Impact regulation for mortgage lenders is up for comment.

In February 2013, the Department of Housing and Urban Development issued a final rule prohibiting discrimination by Title VIII of the Fair Housing Act.

The rule, finalized under the Obama administration, formally establishes a three-part burden-shifting test used by HUD and most federal courts.

At the time, HUD said that the rule would provide "greater clarity and predictability for all parties engaged in housing transactions as to how the discriminatory effects standard applies."  

But the American Bankers Association said that disparate impact relies on flawed legal theory, while the Mortgage Bankers Association's president and chief executive officer, David H. Stevens, said in a 2012 interview that HUD's disparate impact rule and the Qualified Mortgage's ability-to-repay rule appear to be "a case of where one rule the federal government is promoting could produce an outcome that the federal government will be punishing," leaving lenders in a no-win situation.

On Thursday in HUD No. 18-035, HUD asked for public comment on whether its 2013 regulation is consistent with the 2015 U.S. Supreme Court ruling in Texas Department of Housing and Community Affairs v. Inclusive Communities Project Inc.

HUD said its Disparate Impact regulation "provides a framework for establishing legal liability for facially neutral practices that have discriminatory effects on classes of persons protected under the Fair Housing Act."

In Texas Department of Housing, the Supreme Court upheld the use of a 'disparate impact' theory to establish liability under the Fair Housing Act in cases where seemingly neutral practices have discriminatory effects on protected classes.

Though the Supreme Court referred to HUD's regulation in its Inclusive Communities ruling, it didn't directly rule on it.

"Shortly, HUD will formally seek the public's comment on whether its Disparate Impact Regulation is consistent with the Supreme Court's Inclusive Communities ruling," HUD stated.

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