Liability may be established under the Fair Housing Act based on a practice's discriminatory effect, as defined in paragraph (a) of this section, even if the practice was not motivated by a discriminatory intent. The practice may still be lawful if supported by a legally sufficient justification, as defined in paragraph (b) of this section. The burdens of proof for establishing a violation under this subpart are set forth in paragraph (c) of this section.
(a) Discriminatory effect. A practice has a discriminatory effect where it actually or predictably results in a disparate impact on a group of persons or creates, increases, reinforces, or perpetuates segregated housing patterns because of race, color, religion, sex, handicap, familial status, or national origin.
(b) Legally sufficient justification. (1) A legally sufficient justification exists where the challenged practice:
(i) Is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the respondent, with respect to claims brought under 42 U.S.C. 3612, or defendant, with respect to claims brought under 42 U.S.C. 3613 or 3614; and
(ii) Those interests could not be served by another practice that has a less discriminatory effect.
(2) A legally sufficient justification must be supported by evidence and may not be hypothetical or speculative. The burdens of proof for establishing each of the two elements of a legally sufficient justification are set forth in paragraphs (c)(2) and (3) of this section.
(c) Burdens of proof in discriminatory effects cases. (1) The charging party, with respect to a claim brought under 42 U.S.C. 3612, or the plaintiff, with respect to a claim brought under 42 U.S.C. 3613 or 3614, has the burden of proving that a challenged practice caused or predictably will cause a discriminatory effect.
(2) Once the charging party or plaintiff satisfies the burden of proof set forth in paragraph (c)(1) of this section, the respondent or defendant has the burden of proving that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the respondent or defendant.
(3) If the respondent or defendant satisfies the burden of proof set forth in paragraph (c)(2) of this section, the charging party or plaintiff may still prevail upon proving that the substantial, legitimate, nondiscriminatory interests supporting the challenged practice could be served by another practice that has a less discriminatory effect.
(d) Relationship to discriminatory intent. A demonstration that a practice is supported by a legally sufficient justification, as defined in paragraph (b) of this section, may not be used as a defense against a claim of intentional discrimination.
[88 FR 19500, Mar. 31, 2023]
Notes of Decisions
Mhany Mgmt., Inc. v. Cnty. of Nassau, 819 F.3d 581 (2d Cir. 2016).
· cites it 5× “” 24 C.F.R. § 100.500 (c). Under this framework, the first two steps are substantially the same as in our case law: First, a plaintiff or charging party must come forward with a prima facie case; and second, the defendant or respondent may rebut the prima facie case by proving…”
Inclusive Communities Proj., Inc. v. Texas Dep't of Hous. & Cmty. Affairs, 747 F.3d 275 (5th Cir. 2014).
· cites it 19× “We adopt the standard announced in recently enacted Department of Housing and Urban Development (“HUD”) regulations regarding the burdens of proof in disparate impact housing discrimination cases, see 24 C.F.R. § 100.500 , and remand to the district court for application of this…”
Avenue 6E Investments, LLC v. City of Yuma, 818 F.3d 493 (9th Cir. 2016).
· cites it 2× “”); see also 24 C.F.R. § 100.500 (c) (setting forth burden-shifting framework for disparate-impact claims under the FHA).”
Borum v. Brentwood Vill., LLC, 218 F. Supp. 3d 1 (D.D.C. 2016).
· cites it 4× “” 24 C.F.R. § 100.500 (c)(1). Once the plaintiff makes such a showing, the “defendant has the burden of proving that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the respondent or *22 defendant.”
Burbank Apts. Tenant Ass'n v. Kargman, 48 N.E.3d 394 (Mass. 2016).
· cites it 2× “” Inclusive Communities, supra at 2514, quoting 24 C.F.R. § 100.500 (c)(1) (2014). The Supreme Court emphasized the need to balance the interests of both property owners and protected classes by requiring a rigorous examination on the merits at the pleading stage.”
Avenue 6E Investments, LLC v. City of Yuma, 217 F. Supp. 3d 1040 (D. Ariz. 2017).
· cites it 5× “2009); see also 24 C.F.R. § 100.500 (c) (setting forth burden-shifting framework for disparate-impact claims under the FHA).”
Conn. Fair Hous. Ctr. v. Corelogic Rental Prop. Solutions, LLC, 369 F. Supp. 3d 362 (D. Conn. 2019).
· cites it 2× “The only court to address this Guidance deemed it "an interpretive rule" which clarifies how disparate impact claims under 24 C.F.R. § 100.500 apply to situations where a housing provider takes an adverse action based on an individual's criminal history.”
Rhode Island Comm'n for Human Rights v. Graul, 120 F. Supp. 3d 110 (D.R.I. 2015).
· cites it 3× “24 C.F.R. § 100.500 . The burden on the plaintiff is to show that the policy has “a discriminatory effect [because] it actually or predictably results in a disparate impact on a group of persons .”
Sw. Fair Hous. Council v. Mdwid, 17 F.4th 950 (9th Cir. 2021).
“24 C.F.R. § 100.500 (2014). Although the Supreme Court mentioned this regulation in Inclusive Communities, see 576 U.”
— 24 C.F.R. § 100.500(b)(1)(i) — 1 case
— 24 C.F.R. § 100.500(c)(1) — 2 cases
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