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10.22.2020

Relman Colfax has filed a lawsuit against the Department of Housing and Urban Development and its Secretary, Ben Carson, challenging HUD’s new rule that eviscerates the disparate-impact standard under the Fair Housing Act. The Firm represents the National Fair Housing Alliance, Fair Housing Advocates of Northern California, and BLDS, LTD.

For decades, the Fair Housing Act’s disparate-impact doctrine has been a vital tool for challenging practices that have a discriminatory effect on housing, regardless of whether they are motivated by discriminatory intent. Disparate-impact claims permit challenges to policies and practices that have a discriminatory effect based on race or other protected class. Once such an effect is shown, disparate-impact claims require a defendant to use a less discriminatory alternative that could serve its legitimate purposes, without regard to whether the defendant intentionally discriminated.

Now, however, HUD has issued a rule that makes disparate-impact claims nearly impossible to bring, by adding novel pleading and proof requirements and brand-new defenses that effectively shield broad swaths of industry from any realistic prospect of disparate-impact liability. The result is to embolden public and private entities alike to maintain policies and practices with unnecessary discriminatory effect and institute new ones, just when public attention has turned to the importance of eliminating systemic discrimination in housing and elsewhere.

The lawsuit, filed in the U.S. District Court for the Northern District of California, alleges that HUD’s rule violates the Administrative Procedure Act and asks that it be vacated.

The Relman Colfax case team includes John P. Relman, Glenn Schlactus, Stephen F. Hayes, Sasha Samberg-Champion, Sara Pratt, and Zach Best, with paralegal assistance from Brianna Terrell, Amalia Perez, and Isabel Tessier. Relman Colfax is co-counseling with the NAACP Legal Defense and Public Citizen.

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