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Attorney General William Tong

10/21/2019

ATTORNEY GENERAL TONG OPPOSES EFFORT TO UNDERMINE PROTECTIONS AGAINST HOUSING DISCRIMINATION

(Hartford, CT) -- Attorney General William Tong today joined a coalition of 22 attorneys general opposing a U.S. Department of Housing and Urban Development (HUD) proposal that would undermine key existing protections against housing discrimination in federal law.

"Housing discrimination is a pervasive and insidious threat to civil rights experienced by people every single day in Connecticut and across the nation. Housing is about more than just where we lay our heads to sleep at night. It affects our health, safety, education, transportation, access to jobs, and more. So much of the time, discrimination is not overt and explicit. There isn't a sign on the door saying 'people of color need not apply.' Instead, bad actors achieve the same goals through policies and practice that, at first glance, look neutral. We see this in exclusionary zoning ordinances, mortgage lending laws, English-only rules and more. HUD's proposed rule change gives cover to those seeking to advance a separate and unequal society, and Connecticut stands in strong opposition," said Attorney General Tong.

The federal Fair Housing Act forbids housing discrimination that has a disparate impact on protected groups. Identifying proof of overt housing bias is often difficult, so HUD's existing Disparate Impact Rule spells out a three-step test: 1) the plaintiff must prove that the challenged practice has caused or will cause a discriminatory effect on a protected class; 2) the defendant must prove that the challenged practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest; and 3) the plaintiff prevails if it can prove that interest could be served by a less discriminatory alternative to the challenged practice. The proposal undermines that three-part test in a number of ways, including: Adding a new, cumbersome five-element test with additional required proof by the plaintiff to show causation; giving defendants a "safe harbor" if they can show their choices rely upon a facially race-neutral algorithm developed by a third party; and lifting a prohibition on use of hypothetical and speculative evidence.

The current rule provides protection against discriminatory housing and lending practices that have the effect of harming individuals based on their race, color, religion, national origin, sex, disability, and familial status. But the proposed changes would make it harder for states to ensure equal housing opportunities for all Americans.

The coalition, led by North Carolina Attorney General Josh Stein, New York Attorney General Letitia James, and California Attorney General Xavier Becerra, submitted comments arguing that the proposed rule changes have substantial defects. The changes ignore the Supreme Court’s binding interpretation of the Fair Housing Act and drastically exceed HUD’s authority by altering judicial procedures. The changes also provide more immunity to lending and insurance companies at the expense of consumers, making it more likely that claims with merit will be unnecessarily dismissed.

The attorneys general have wide-ranging experience in using disparate impact liability to enforce fair housing laws, combat housing discrimination, and ensure that everyone has an equal opportunity to obtain housing. States have regularly challenged housing policies that have a discriminatory effect, including zoning ordinances, mortgage lending discrimination, and English-only policies. Many times, these policies disproportionately hurt minority residents and vulnerable populations, such as domestic violence victims.

Attorney General Tong is joined in submitting today’s comments by the Attorneys General of California, Colorado, Delaware, District of Columbia, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Nevada, New Mexico, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington..

A copy of the comment letter is available here.
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