ASSEMBLY RESOLUTION No. 273
STATE OF NEW JERSEY
218th LEGISLATURE
INTRODUCED NOVEMBER 14, 2019
Sponsored by:
Assemblyman BENJIE E. WIMBERLY
District 35 (Bergen and Passaic)
SYNOPSIS
Condemns US Department of Housing and Urban Development's proposed rule limiting applicability of Fair Housing Act's disparate impact standard.
CURRENT VERSION OF TEXT
As introduced.
An Assembly Resolution condemning the United States Department of Housing and Urban Development's proposed rule limiting the applicability of the disparate impact standard under Title VIII of the Civil Rights Act of 1968.
Whereas, The United States Department of Housing and Urban Development's (HUD) 2019 proposed rule outlining implementation of the Fair Housing Act's disparate impact standard creates a new standard that will exacerbate inequality in the housing market and allow discrimination to flourish; and
Whereas, Disparate impact discrimination (also referred to as "discriminatory effect" discrimination) occurs when policies and practices have a discriminatory effect absent any intent to discriminate; and
Whereas, Prior to enactment of Title VIII of the "Civil Rights Act of 1968," also known as the Fair Housing Act, discrimination in housing based on race was prevalent in communities across the United States; and
Whereas, Civil unrest in the 1960s led to the establishment of the National Advisory Commission on Civil Disorders, also known as the Kerner Commission; and
Whereas, The Kerner Commission issued a report highlighting the racism and discrimination that existed in the sale and rental of housing and recommended that the U.S. Congress enact laws prohibiting discrimination in the rental or sale of housing based upon race and other protected characteristics; and
Whereas, The U.S. Congress enacted the Fair Housing Act in response to the Kerner Commission report; and
Whereas, The Fair Housing Act, ascurrentlyenacted,prohibits discrimination in the sale or rental of housing based on race, color, religion, sex, handicap, familial status, or national origin; and
Whereas, Following enactment of the Fair Housing Act, federal courts of appeals consistently held that the Fair Housing Act applied to intentional discrimination and disparate impact discrimination claims; and
Whereas, The U.S. Congress adopted amendments to the Fair Housing Act in 1988 that created exemptions to disparate impact claims, thus adopting the federal appeals courts findings related to disparate impact liability under the Fair Housing Act; and
Whereas, Following inconsistent implementation of disparate impact standards across U.S. federal courts of appeals, HUD promulgated a final rule formalizing the disparate impact liability standard in 2013; and
Whereas, Consistent with HUD's 2013 final rule formalizing disparate impact liability, the U.S. Supreme Court held in 2015 that disparate impact discrimination is prohibited under the Fair Housing Act; and
Whereas, HUD's 2019 proposed rule would create severe restrictions for parties seeking to claimdisparate impact and provide unnecessary defenses against claims of disparate impact, including for discriminatory effects that occur when defendants use algorithms created by a recognized third party that intentionally target characteristics linked to certain vulnerable populations; and
Whereas, Discrimination continues to occur in the sale and rental of housing across the United States, with 28,843 reported complaints of housing discrimination nationwide in 2017; and
Whereas, The Fair Housing Act was enacted to prevent continued discrimination in the sale and rental of housing based on protected characteristics, but HUD's 2019 proposed rule will make disparate impact liability unattainable and allow discrimination and inequality to flourish; now, therefore,
Be It Resolved by the General Assembly of the State of New Jersey:
1. The General Assembly of the State of New Jersey condemns the United States Department of Housing and Urban Development's 2019 proposed rule implementing the disparate impact standard.
2. Copies of this resolution, as filed with the Secretary of State, shall be transmitted by the clerk of the General Assembly to the United States Secretary of Housing and Urban Development and every member of the United States Congress elected from this State.
STATEMENT
This resolution condemns the U.S. Department of Housing and Urban Development's (HUD) 2019 proposed rule implementing the disparate impact standard.
Discrimination in the sale and rental of housing was extensive in the U.S. prior to the enactment of the Fair Housing Act. The U.S. Congress enacted the Fair Housing Act and the 1988 amendments in an effort to eliminate that discrimination. HUD and the federal courts have consistently stated that the Fair Housing Act prohibits disparate impact discrimination, which occurs when housing policies have a discriminatory effect absent discriminatory intent.
Overt and disparate impact discrimination in the sale and rental of housing continues to occur across the United States. While overt discrimination may be more apparent, the effects of disparate impact discrimination can lead to inequality that persists undetected or unaddressed for generations. HUD's 2019 proposed rule will create new barriers to disparate impact claims and lead to increased discrimination and inequality in the housing market. Moreover, with access to housing linked to success in areas such as education and financial stability, adoption of HUD's 2019 proposed rule will create additional barriers to success for individuals already marginalized in our society.