Inclusive Communities – Consumer Financial Services Watch

American Bankers Association, Consumer Bankers Association, and Housing Policy Council Joint Comments on HUD’s Proposed Rule on the Fair Housing Act’s Standard of Disparate Impact

Oct 24 2019

On behalf of the American Bankers Association, Consumer Bankers Association, and Housing Policy Council, K&L Gates Partner Paul F. Hancock and Associate Olivia Kelman crafted a comment that was submitted to the U.S. Department of Housing and Urban Development (“HUD”) on October 18, 2019, addressing the proposed amendments to HUD’s interpretation of the Fair Housing Act’s disparate impact standard. The preamble to the proposed rule states that HUD “proposes to amend” its disparate impact regulation “to better reflect the U.S. Supreme Court’s 2015 ruling in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015).” [1] In that decision, the Supreme Court articulated the standards for, and limitations on, disparate impact claims under the Fair Housing Act. The comment explains that the proposed amendments properly reflect binding precedent and provide necessary guidance regarding the application of the law, and supports the amendments in HUD’s Proposed Rule, with some suggested modifications. A copy of the comment is available here.

American Bankers Association Weighs In With a Comment on HUD’s Disparate Impact Rule

Aug 22 2018

By Paul F. Hancock, Olivia Kelman

On behalf of the American Bankers Association and state bankers associations across the country, K&L Gates partner Paul F. Hancock and associate Olivia Kelman crafted a comment that was submitted to the U.S. Department of Housing and Urban Development (“HUD” or “Department”) on August 20, 2018, in support of reopening rulemaking regarding the Department’s implementation of the Fair Housing Act’s disparate impact standard. On June 20, 2018, HUD issued an advance notice of proposed rulemaking that sought public comment on possible amendments to the Department’s 2013 final disparate impact rule in light of the U.S. Supreme Court’s decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015). In that decision, the Supreme Court articulated the standards for, and the constitutional limitations on, disparate impact claims under the Fair Housing Act. The comment explains that the rule should be amended because it adopts standards that are inconsistent with Supreme Court precedent, fails to provide much needed guidance to entities seeking to comply with the law, and is therefore outdated and ineffective. A copy of the comment is available here.

Inclusive Communities Excluded from Court—Plaintiff Can’t Meet Supreme Court Standard for Disparate-Impact Claims under the Fair Housing Act

Sep 12 2016

By Paul F. Hancock, Andrew C. Glass, Olivia Kelman, and Joshua Butera

K&L Gates LLP previously observed that the U.S. Supreme Court’s recognition of disparate-impact claims under the Fair Housing Act in Texas Department of Housing & Community Affairs v. The Inclusive Communities Project, Inc. had a “silver lining.” In particular, the Supreme Court identified that a plaintiff must meet a rigorous standard to establish a prima facie case of disparate-impact discrimination under the Fair Housing Act. On remand, the U.S. District Court for the Northern District of Texas applied that standard, holding that the plaintiff fell far short of meeting the Supreme Court’s “proof regimen” necessary to sustain a disparate-impact claim. The district court’s decision reaffirms that, in interpreting the Supreme Court’s decision properly, a Fair Housing Act plaintiff proceeding under a disparate-impact theory faces a significant burden.

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