Trump Admin Plans to Make it More Difficult to Prove Housing Discrimination

Published on August 3, 2019 by Athena Pallas

The fact that both Donald Trump and his father were accused of housing discrimination against non-whites at their rental properties makes for an interesting backdrop to the new Trump administration plan to make proving housing discrimination more difficult and to make defending against those accusations easier. The Department of Housing and Urban Development (HUD) submitted a proposal to Congress that would make claiming housing discrimination under the Fair Housing Act more difficult to prove. Congress has 15 days to review the new proposal and, once the proposal is published in the Federal Register, the public will have a 60 day comment period available to them.

This proposal is another example of one the Trump administration would use to undermine Obama-era policies and procedures, specifically HUD’s 2013 disparate impact rule. Under that rule, discrimination need not be intentional to be actionable – business or governmental practices that disproportionately affect minorities negatively even without that intent would be actionable. Under the rule, governments and corporations can be held accountable if disparate impact is shown to be the case. The Trump administration’s proposal would increase the number of steps to reach the threshold for proving unintentional discrimination from three to five; it also offers additional ways that defendants can refute claims that the algorithmic models they use to determine an applicant’s fitness to rent or buy property are discriminatory. According to Politico:

The Department of Housing and Urban Development is circulating a proposal to make it more difficult to bring discrimination claims under the Fair Housing Act. The update to HUD’s 2013 disparate impact rule would require plaintiffs to meet a five-step threshold to prove unintentional discrimination, replacing the current three-step “burden-shifting” approach. It would also give defendants more leeway to rebut the claims, according to a copy of the proposal obtained by POLITICO. It’s the latest effort by the Trump administration to roll back the Obama administration’s use of disparate impact – the legal theory that holds business and governments accountable for practices that disproportionately affect minorities even if no discrimination was intended – to root out discrimination. …HUD says its proposal brings its interpretation of the disparate impact standard in line with a 2015 Supreme Court ruling. The high court held that disparate impact claims can be brought under the Fair Housing Act but said “disparate impact liability must be limited so employers and other regulated entities are able to make the practical business choices and profit-related decisions that sustain a vibrant and dynamic free-enterprise system.”

Donald Trump’s history of alleged housing discrimination as a property owner as well as his vitriolic rhetoric which many see as racist put a rather unseemly spin on this effort to make it more difficult for people to claim housing discrimination. Both Donald Trump and his father were sued by the Department of Justice in the 1970’s over allegations of housing discrimination; Trump and his father ended up signing a consent decree in the case, but did not admit guilt. According to Rolling Stone:

It’s hard to believe this proposal isn’t personal on some level to the president who, along with his father, was sued by the Department of Justice in the 1970s for discriminatory practices. Although the Trumps ultimately signed a consent decree and did not admit guilt, an investigation by the New York Times revealed that Trump Management employees were told to attach a piece of paper with a large letter “C” – for “colored” – to documents from Black applicants. And a former doorman at a Trump building testified to the FBI that his supervisor told him, “If a black person came to 2650 Ocean Parkway and inquired about an apartment for rent, and he, that is [redacted] was not there at the time, that I should tell him that the rent was twice as much as it really was, in order that he could not afford the apartment.” With Black homeownership at low levels similar to the 1960s, now is not the time to make proving discrimination more difficult. As Lisa Rice, president of the National Fair Housing Alliance, told reporters on a call, “This effort to turn back the clock on civil rights is coming at a most inopportune time, and the Trump administration is keenly aware of it.”

This policy proposal unfortunately follows two of President Trump’s most frequent patterns, the first being to try to undermine or rollback Obama administration regulations, and the second being to give a nod to his own personal resentments. Trump didn’t like being charged with housing discrimination as a property owner, so now he wants to make it more difficult to claim housing discrimination. That follows the same pattern as how Trump didn’t like the taxes he paid as a wealthy person and business owner, so he made giving tax breaks to the rich and to corporations a priority – at the expense of the middle class, the working poor, the deficit, and the national debt. Trump doesn’t have empathy for other people’s problems; he only cares about what he sees as his own difficulties, his own resentments, and operates accordingly.

Featured image via Wikimedia Commons.