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The Department of Housing and Urban Development (HUD) today published an advanced notice of proposed rulemaking (ANPR) to reconsider the implementation of the Fair Housing Act's (FHA) "disparate impact" standard. While NAFCU has steadfastly supported the enforcement of fair lending laws, it has raised concerns about disparate-impact claims.

HUD's reconsideration of the disparate impact standard is a result of the Supreme Court's 2015 decision that upheld that lenders and governments can be guilty of racial bias in lending activity based on statistical patterns, even if racial intent is not proven.

The ANPR asks for public comment on the disparate impact standard's burden-shifting approach, relevant definitions, causation standard and whether changes to some of the rule's provisions would be appropriate.

HUD would also like feedback on possible defenses or safe harbors to claims of disparate impact liability, including when another federal statute substantially limits a defendant’s discretion or another federal statute requires adherence to state laws.

NAFCU will review the ANPR and keep credit unions informed of any changes to HUD's disparate impact rule.