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Discriminatory Effects of the HUD Disparate Impact

WHEREAS, the National Association for the Advancement of Colored People (NAACP) has long been a proponent of housing non-discrimination, as enforced by the Fair Housing Act of 1968; and

WHEREAS, the NAACP is deeply troubled by a Department of Housing and Urban Development (HUD) proposal that essentially removes the test for "disparate impact" of housing discrimination practices, contradicting the intent of the Fair Housing Act; and

WHEREAS, the Fair Housing Act had the central objective of prohibiting racial discrimination in the sales and rentals of housing; and

WHEREAS, interpretations of the Fair Housing Act heretofore have allowed plaintiffs to prove discriminatory effect, rather than having to prove intent; and

WHEREAS, under the traditional "disparate impact" test, the plaintiff must show a discriminatory effect, which allows courts to focus on predictable outcomes, and not subjective intentions, which are not easy to prove; and

WHEREAS, courts have held that the statutory language of the Fair Housing Act focuses on the consequences of the actions rather than the actor's intent; and

WHEREAS, a new HUD proposal implements various standards that a plaintiff must satisfy in order to prove discriminatory treatment that are essentially impossible to prove, thereby requiring plaintiffs to prove intent; and

WHEREAS, HUD has not challenged algorithms that perpetuate unequal treatment of Black households when applying for loans; and

WHEREAS, the HUD proposal lays out arguments that housing providers can use to defend algorithms that have a discriminatory effect, which makes defence against racial injustice more difficult; and

WHEREAS, the HUD proposal has the effect of insidiously perpetuating the racial discrimination that the Fair Housing Act intended to use to protect Black families in America; and

WHEREAS, the absence of statutory language protecting "disparate impact" leaves no protection for racially discriminatory actions which cannot be proven to be intentional.

THEREFORE, BE IT RESOLVED, that the NAACP will continue to advocate for federal legislation preserving the use of the "disparate impact" analysis under the Fair Housing Act.