Section 3612 - Enforcement by Secretary

1 Analyses of this statute by attorneys

  1. HUD Restores 2013 Discriminatory Effects Rule

    McGlinchey StaffordDevin Leary-HanebrinkApril 21, 2023

    less-intrusive option is available, such an option would prevail over a more intrusive one.The 2020 Rule changed this analysis by adding new pleading and proof requirements, as well as new defenses, all fashioned upon the U.S. Supreme Court’s ruling in Inclusive Communities. However, in Mass. Fair Housing Ctr. v. HUD, 496 F. Supp. 3d 600 (D. Mass. 2020), the court stayed the 2020 Rule prior to implementation on the basis that development of the rule did not meet the requirements of the Administrative Procedure Act. As such, the 2013 Rule remained in effect, and following the 2020 election (which ushered in a new presidential administration), the 2020 Rule was never implemented.Regarding the discriminatory effects doctrine and disparate impact, under the 2013 Rule, a legally sufficient justification:[E]xists 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.(24 C.F.R. § 100.500(b)(1) (2014))Moreover,[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 (c)(3) of this section.(24 C.F.R. § 100.500(b)(2) (2014))As for which party shoulders the burden of proof in discriminatory effects cases, the 2013 Rule provides:(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 para