I was one voice of many from industry and housing who called on HUD to not erode protections for families facing housing discrimination and the requirements for efforts to affirmatively further fair housing.
“A plaintiff may rebut this allegation by showing that the plaintiff is not challenging the standard model alone, but the defendant’s unique use or misuse of the model, as the cause of the disparate impact.”But some clarity can be found by following the crumbs in the Treasury’s 2017 report.Removing roof design from the actuarial equation might lower premiums for people in Gable Gardens, and eliminate the discriminatory effect. In 2013, HUD issued regulations establishing a three-step burden-shifting standard for determining whether a housing provider is liable under disparate impact theory.
The ten federal appellate courts that have addressed the issue have all determined that one may establish a Fair Housing Act violation through the disparate impact theory of liability. From the insurance company’s perspective, those rates wouldn’t be actuarially sound, and might not be allowed under state regulations. They say the proposed rule would ease legal burdens on businesses and clarify the evidence needed to bring housing discrimination suits based on disparate impact. Another benefit, according to supporters, is that the proposed rule would avoid the possibility that a defendant might resort to using racial quotas.“Where a particular practice would give rise to a disparate impact, insurers would have to forgo considering factors that correlate to risk, or to differentiate among insureds on the basis of factors that do not correlate to risk, in violation of sound actuarial principles.”HUD now proposes to add language explicitly saying that the FHA would not apply to situations where it would “invalidate, impair, or supersede” state insurance regulations.
On July 16, I published this article in Housing Wire calling on HUD to back away from proposed changes to the disparate impact rule.
Varying regulatory and judicial interpretations of the FHA, and related statutes, further complicate these efforts. Among other risk factors, actuaries at the insurance company account for roof design. “Much progress remains to be made in our Nation’s continuing struggle against racial isolation…The FHA must play an important part in avoiding the Kerner Commission’s grim prophecy that ‘[o]ur Nation is moving toward two societies, one black, one white-separate and unequal.’…The Court acknowledges the Fair Housing Act’s continuing role in moving the Nation toward a more integrated society.”Disparate Impact is a legal doctrine under the Fair Housing Act which states that a policy may be considered discriminatory if it has a disproportionate “adverse impact” against any group based on race, national origin, color, religion, sex, familial status, or disability when there is no legitimate, non-discriminatory business need for the policy.In a disparate impact case, a person can challenge practices that have a “disproportionately adverse effect” on those protected by the Fair Housing Act and are “otherwise unjustified by a legitimate rationale.”While we have made strides in advancing fairness in the housing sector, segregation persists and there is still more work to be done. After the defendant has their say, burden shifts to the plaintiff, who must show that:One other important change the proposed rule would make: a defendant can defeat a claim if unintentional discrimination is happening because of an algorithm that a “recognized third party, not the defendant, is responsible for creating or maintaining.” Farías explains in the proposed rule this is meant to allow defendants to stage a defense arguing the algorithm is an industry standard.So, it might be said that an “actuarially sound” insurance policy is one with a risk assessment based on neutral data that anticipate costs. On July 16, I published this article in Housing Wire calling on HUD to back away from proposed changes to the disparate impact rule.
Someone in Gable Gardens might file a disparate impact claim with HUD alleging that even though the insurance company isn’t trying to discriminate, it is discriminating because members of their religion end up paying more for the same level of coverage.Say there are two subdivisions near each other in a tornado-prone area.
For example, in an area that regularly gets tornadoes, certain roof designs may make some homes more prone to catastrophic damage than others.Justice Anthony Kennedy, writing for the majority, stressed that businesses need to be able to make practical decisions without being overly concerned that those decisions might lead to legal liability under the disparate impact standard.Actuarial soundness is part and parcel with insurance companies’ profit motive.Getting to discovery means access to a potential wealth of evidence.An insurance company in the area is selling coverage that would reimburse homeowners for catastrophic tornado damage. The U.S. Department of Housing and Urban Development's Office of Fair Housing and Equal Opportunity, the federal government which administers the Fair Housing Act, issued a propos…
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