Nine New York State Agencies Submit Public Comment in Opposition to HUD's Proposed Change to Disparate Impact Legal Standard
Division of Human Rights To Issue Guidance Clarifying that Disparate Impact Claims Will Remain Unaffected Under New York State Law
Governor Andrew M. Cuomo today announced robust multi-agency opposition to the federal government's attempt to dismantle critical housing protections for vulnerable and marginalized communities. The proposed rule change from the U.S. Department of Housing and Urban Development, if enacted, would fundamentally alter the Fair Housing Act's disparate impact standard and would have devastating consequences for victims of housing discrimination. Nine state agencies have submitted public comments in opposition to the proposed rule change, reaffirming New York's commitment to fair housing and protecting all New Yorkers from discrimination.
"New York has zero tolerance for discrimination of any kind and while the federal government seeks to dismantle critical housing protections, we are fighting back at every turn to uphold them," Governor Cuomo said. "This proposed rule change will have devastating consequences for victims of housing discrimination by creating an undue legal burden and impeding their ability to seek legal recourse."
On August 19, 2019, HUD announced a proposed rule change to their implementation of the Fair Housing Act's disparate impact standard. A disparate impact claim arises from policies or practices that appear neutral, but still have the effect of disproportionately harming people based on their race, color, religion, sex, national origin, disability or familial status. The Proposed Rule seeks to alter the way such claims have been analyzed for years, including by the U.S. Supreme Court, by requiring those bringing discrimination claims to have almost all of the evidence of discrimination at the outset. Under the new rule, plaintiffs will be required to make specific factual allegations in their complaint about a defendant's policy or practice and its discriminatory impact even though in the vast majority of circumstances, defendants exclusively hold such information. The Proposed Rule will establish onerous requirements that will result in undermining legitimate claims of discrimination and leave victims without meaningful legal recourse.
The nine New York State agencies that have submitted public comment opposing the proposed rule and highlighting the devastating effect the rule, if enacted, would have on New Yorkers, are:
- Division of Human Rights
- Department of Financial Services
- Department of Health
- Division of Veterans Services
- Homes and Community Renewal
- Office for the Aging
- Office for the Prevention of Domestic Violence
- Office of Children and Family Services
- Office of Temporary and Disability Assistance
In addition to the comments submitted today, the New York State Division of Human Rights will be issuing guidance setting forth the disparate impact standard under New York State law and clarifying that any changes to the federal standard will have no impact on how such claims are analyzed in New York State.
New York State Division of Human Rights Commissioner Angela Fernandez said, "This Proposed Rule creates a nearly impossible burden for victims of housing discrimination to meet. The disparate impact standard is an important tool because it makes it possible to identify and challenge discrimination that is pernicious and difficult to see. New York will continue to use the standards established by the U.S. Supreme Court and the New York State Court of Appeals to fight this form of discrimination."
New York State Department of Health Commissioner Dr. Howard Zucker said, "Providing people with affordable and stable housing can improve health outcomes. If this proposed rule change is implemented, it will destroy the enforcement tool that has been historically used to protect the housing rights of not just particularly vulnerable populations, but all New Yorkers."
New York State Department of Financial Services Superintendent Linda A. Lacewell said, "HUD's recent proposal will dismantle important consumer protections that are meant to ensure fair access to housing for our citizens. While Washington takes a sledge hammer to long established safeguards, again, DFS will step up for consumers by protecting and enforcing fair treatment for all New Yorkers."
New York State Homes and Community Renewal Commissioner RuthAnneVisnauskas said, "Governor Cuomo and New York State are once again leading the fight against the federal administration's discriminatory and harmful policies. The proposed rule would undermine HCR's initiatives to provide and develop affordable housing across New York and weaken efforts to combat racial and economic segregation in our communities. By opposing this misguided change, we are continuing our work to ensure that all New Yorkers have an equal opportunity to live in neighborhoods and housing they desire and can afford regardless of race, color, religion, national origin, disability or familial status."
New York State Office for the Aging Acting Director Greg Olsen said, "The Proposed Rule would have a negative impact on older individuals, burdening them as they attempt to maintain their quality of life through accessible and affordable housing. It would undermine the flourishing of age friendly, livable communities throughout the State of New York. I commend Governor Cuomo for leading a strong opposition to this proposal, which would make it more difficult for older individuals, especially those with disabilities, to maintain their quality of life and age with dignity."
Office for the Prevention of Domestic Violence Deputy Director Shannon Cantiello said, "As an agency that works to improve New York's response to and prevention of domestic violence, OPDV strongly opposes this Proposed Rule, which would leave domestic violence victims particularly vulnerable to harm. The Proposed Rule would limit the viability and the remedies available for claims of discrimination based on domestic violence victims status. Additionally, without the ability to challenge these policies, victims are left susceptible to harmful practices, which only exacerbate the problems facing domestic violence victims."
New York State Division of Veterans' Services Director Jim McDonough, Jr. said, "In the ongoing mission to serve all Veterans and their families, the proposed rule from the U.SDepartment of Housing and Urban Development will create an undue hardship on those we serve when assisting them with housing opportunities where they may face discrimination. Any rule that makes an attempt at preventing the successful housing of those who have served our nation is in direct opposition to the promise we all make to take care of our Veteran families when they return home. We stand with our partners in New York State in opposing the proposed rule."
Office of Children and Family Services Commissioner Sheila J. Poole said, "This onerous rule would be devastating to New York State families, making it virtually impossible to challenge a housing discrimination claim. It would especially impact the families we serve who are living in high-need communities, who are disproportionately represented in the child welfare system. Stable housing is fundamental to keeping families together and to delivering the services to support their success."
Office of Temporary and Disability Assistance Commissioner Mike Hein said, "This abominable rule change will have a long-term detrimental impact on New York's most vulnerable and marginalized populations. Under the Trump Administration's needless proposal, families will be forced to meet an insurmountable standard to prove discrimination, which in turn could leave them facing the mentally and physically taxing prospect of homelessness. We applaud Governor Cuomo for staunchly opposing this unconscionable rule change and will stand by his efforts to thwart this egregious assault on the protections afforded under the Fair Housing Act."