On October 18, 2019, WLF called on the Department of Housing and Urban Development (HUD) to adopt strict limits on Fair Housing Act (FHA) suits in the absence of evidence that the defendant ever intended to discriminate against members of a protected group. In formal comments filed at HUD’s invitation, WLF applauded HUD’s proposal to limit potential liability when a plaintiff alleges simply that a defendant’s policy or practice has greater impact on a protected group than on the population as a whole (known as “disparate impact” liability). In particular, WLF agreed with HUD that the plaintiff in a disparate-impact suit must bear an initial burden of showing that a challenged policy or practice is “arbitrary, artificial, and unnecessary to achieve a valid interest or legitimate objective.” Under current regulations, once the plaintiff shows that a policy has a disparate impact, it is the defendant’s burden to show that the policy is necessary to achieve a legitimate objective.


WLF comments