Second Circuit follows HUD regulation requiring plaintiffs in disparate impact cases to prove a less discriminatory way to achieve the defendant’s legitimate interest
In MHANY Mgmt., Inc. v. County of Nassau, 2016 U.S. App. LEXIS 5441 (2d Cir. 2016), the Second Circuit adopted the burdens of proof for disparate impact claims under the Fair Housing Act spelled in the regulations of the U.S. Department of Housing and Urban Development. Those rules place the burden on the plaintiff to prove a discriminatory effect either by showing a disparate impact on a protected group or a segregative effect. If that can be shown, the burden shifts to the defendant to show a “substantial, legitimate, nondiscriminatory interest” that justifies the discriminatory effect. At that point, the HUD regulations, now adopted and approved by the Second Circuit, put the burden of proof on the plaintiff to show that the “substantial, legitimate, nondiscriminatory interest” of the defendant “could be served by another practice that has a less discriminatory effect.” 24 C.F.R. ยง 100.500(c)(3). The Second Circuit, and some other Circuits, …