South Florida Attorneys Weigh in on Trump Administration's Planned Fair Housing Rule Change
A proposed change in the law's disparate impact rule is stirring debate on its potential impact on housing discrimination claims.
August 22, 2019 at 03:21 PM
5 minute read
The Trump administration wants to make it harder for minorities and other protected classes to claim housing discrimination under the Fair Housing Act's disparate impact rule, prompting mixed reactions in South Florida real estate circles.
A Miami housing attorney said this would gut protections against discrimination and potentially bar claims altogether. But a Coral Gables attorney said this merely balances protection for residents as well as landlords who imposed legitimate, nondiscriminatory policies intended to maintain safe, well-run communities.
The U.S. Department of Housing and Urban Development on Monday published a 35-page plan to change the Fair Housing Act standard. Stakeholders can weight in by Oct. 18 before the change could be implemented.
Currently, a protected class of residents can claim disparate impact from housing policies that weren't meant to discriminate but ended up having this effect. The classes are based on sex, religion, race, color, national origin, disability and families with children.
For example, a landlord may have a policy barring lease renewals for residents who called police several times during their tenancy in an attempt to keep a community safe and crime free. But the policy could end up discriminating against women who are domestic violence victims and called police for help.
The change would set a higher threshold for disparate impact claims against landlords, insurers and lenders.
"This new rule raises the standard for someone challenging the practices. It creates a new burden for a plaintiff suing an apartment owner. Now, they can't just say, 'Hey your practices are resulting in a disparate impact,' " said attorney Joe Hernandez, who leads the real estate practice at Weiss Serota Helfman Cole & Bierman in Coral Gables. " There's five criteria as I read it that are basically now placed on a plaintiff. Basically, it's placing additional burdens on the plaintiff to show how the particular practice that the defendant is engaging in creates the disparate impact."
Residents who sue would have to show a landlord's policy is arbitrary, artificial and unnecessary; there's a "robust causal link" between the policy and the disparate impact; the disparity has an adverse effect and is significant; and there's a direct link between the disparate impact and the alleged injury, according to the HUD proposal.
Attorney Keenya Robertson, CEO of the nonprofit Housing Opportunities Project for Excellence Inc., said this could essentially bar disparate impact claims.
"That is a large concern," Robertson said. "This is a key civil rights protection that's been in place. It's really undoing a protection that's been utilized with regards to banks, landlords."
The impact standard is important in South Florida in light of its affordable housing crisis. There's pent-up demand for affordable and workforce units, while developers favor high-end condominiums and market-rate apartments.
"In South Florida, because we have a limited supply of affordable housing as related to the need, we definitely need the ability to attack any policy and practice that even further limits the availability of housing," Robertson said.
Hernandez said this is only an attempt to balance the interests of tenants versus those of landlords, lenders and insurers.
Once a disparate impact claim is filed under current regulations, the burden shifts to landlords who must show they are within their legal rights to adopt a policy that is justified, legitimate and nondiscriminatory.
"That's tremendously hard to do. That's like saying, 'All I gotta do is say you are guilty and all you have to do is prove your innocence,' which of course is a tougher standard," Hernandez said.
He said he isn't making a judgment for or against the policy change but thinks his clients likely are happy with the proposal.
"My developer clients and those who own multifamily projects are probably glad to see how the standard for potentially holding them liable for having discriminatory practices is higher," Hernandez said. "I believe the lenders or insurance companies out there are probably happy with the new rule."
The National Association of Realtors and the National Apartment Association support the change. The apartment association said it aligns with HUD's disparate impact rule adopted in 2013 and a 2015 U.S. Supreme Court decision that clarified the impact standard.
The Realtors association supports the burden shifting.
It "opposes requirements that real estate professionals conduct unreasonable research into whether policies or practices have a disparate impact or discriminatory effect and support requirements that the entity alleging discrimination has the burden of proof for showing that policy or practice has a discriminatory effect and for showing that there is an alternative means to achieving any stated business purpose without being unduly burdensome," the association said in a statement.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllFowler White Burnett Opens Jacksonville Office Focused on Transportation Practice
3 minute readHow Much Coverage Do You Really Have? Valuation and Loss Settlement Provisions in Commercial Property Policies
10 minute readThe Importance of 'Speaking Up' Regarding Lease Renewal Deadlines for Commercial Tenants and Landlords
6 minute readMeet the Attorneys—and Little Known Law—Behind $20M Miami Dispute
Trending Stories
- 1Tuesday Newspaper
- 2Judicial Ethics Opinion 24-85
- 3Decision of the Day: Administrative Court Finds Prevailing Wage Law Applies to Workers Who Cleaned NYC Subways During Pandemic
- 4Trailblazing Broward Judge Retires; Legacy Includes Bush v. Gore
- 5Federal Judge Named in Lawsuit Over Underage Drinking Party at His California Home
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250