RENT Magazine Q4'23

THE HISTORICAL BACKDROP: RESCINDING AND REINSTATING A POLICY, EVEN WHEN NEUTRAL ON ITS FACE, CAN BE FLAGGED IF IT DISPROPORTIONATELY HAMPERS OR AFFECTS ANY PROTECTED GROUP. people from housing opportunities, including zoning requirements, lending and property insurance policies, and criminal records policies.” For example, a blanket rule that excludes anyone with a criminal record from living onsite seems fair in light of resident safety. However, this rule can have a discriminatory effect based on race, national origin, and disability. Although it is not unlawful to have a rule about criminal history, there are other ways to achieve resident safety without discriminatory effects. For example, reviewing how long ago the crime occurred, the nature of the crime, and efforts to rehabilitiate should be considered, instead of simply using a “no felons” policy. The Discriminatory Effects Rule was initially adopted by HUD in 2013. With the turn of a new administration, the rule was recalibrated in 2020, which left some feeling that the new stance was more amenable or helpful to landlords and not so much of a protection for residents. The new stance added new pleading requirements, new proof requirements, and new defenses that would have made it more difficult for a protected class plaintiff to start and win a disparate impact case. So, what catalyzed the recent return to the 2013 understanding? Following the 2020 alterations, a series of litigations emerged, championed by various advocacy groups. Additionally, a federal judicial intervention halted the execution of the 2020 modifications, prompting discussions about their alignment with the foundational court case that set the initial standards. This evaluative process subsequently led HUD to reinstate the 2013 version of the rule, deeming it more in line with established precedents.


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