The Autism Society of America and the Autistic Self Advocacy Network have signed a letter to HUD from the Consortium for Citizens with Disabilities (CCD). The topic is a proposed rule that would make it harder for people with disabilities to file complaints under the Fair Housing Act.
The proposed rule, if finalized as written, risks permitting covert discriminatory practices to proliferate without the appropriate and necessary enforcement tool of disparate impact liability. The proposed rule miscalculates the balance of interests by weighting the process unfairly against individuals alleging discrimination, obstructing accountability, making it prohibitively difficult for people facing discrimination to access an appropriate and timely remedy, and dismantling a key tool for addressing systemic discrimination under the FHA. The proposed disparate impact rule would effectively preclude individuals with disabilities from using disparate impact claims to address situations such as the following:
The proposed revisions in §100.500 will drastically increase the burden of bringing a case to address prohibited discrimination for the plaintiff. In the proposed rule, the current burden shifting standard is replaced with a five-part component set of tests, placing nearly all of the burden on the people who are intended to be protected from discrimination under the Fair Housing Act. For example, people experiencing discrimination may be asked to essentially identify the justifications the defendant will raise and address them. A plaintiff may be required to prove by the preponderance of evidence that “a less discriminatory policy or practice would serve the interest in an equally effective manner without imposing materially greater costs on, or creating other material burdens for, the defendant.” The proposed rule not only sets a much higher bar for a person experiencing discrimination to meet, but one based on information that
- a city that accuses a non-profit of violating a zoning ordinance by operating a “group home” in a single-family residential neighborhood though the house was purchased for use by a man with intellectual and physical disabilities, who is the only resident of the property and receives services from the non-profit on a round the clock basis when he’s home;
- a housing provider who operates a separate office that deals with applicants who will be using a housing subsidy program to pay their rent, and requires burdensome documentation attesting to future payment in order to consider rental applications from people with disabilities; a town that prohibits several unrelated people with addiction histories from living together in a house in a “single-family” zoning district, an ordinance that treats them less favorably than a similarly-sized family related by blood or marriage; or
- a government agency refuses to issue a permit to an AIDS public interest group to open and run a hospice for clients with AIDS, claiming that the land is zoned exclusively for agricultural purposes
only the entity with the discriminatory policy may have.