Fair Housing Law
HUD Restores “Discriminatory Effects” Rule to Strengthen Fair Housing Enforcement
On March 17th, the U.S. Department of Housing and Urban Development (HUD) announced that it has submitted to the Federal Register a Final Rule entitled Restoring HUD's Discriminatory Effects Standard. This cancels HUD's 2020 rule that weakened Fair Housing Act disparate impact claims and restores the 2013 discriminatory effects rule. In the new Rule, HUD states that the 2013 rule is more consistent with how the Fair Housing Act pertains to the courts, and that it more effectively implements the Act's remedial purpose of eliminating unnecessary discriminatory practices from the housing market.
The restored discriminatory effects policy (which includes disparate impact and perpetuation of segregation) provides a strong means to tackle those policies that unnecessarily cause systemic housing inequality, even if not adopted with discriminatory intent. For many years, it has been used to challenge policies that exclude people from housing opportunities, including zoning requirements, lending and property insurance policies, and criminal records policies.
The rescinded 2020 rule weakened HUD's 2013 discriminatory effects rule that legally supported Fair Housing Act cases involving discriminatory effects for cases filed with HUD and by private plaintiffs. The 2013 rule was that a policy with a discriminatory effect on a protected class was illegal if it did not produce a substantial nondiscriminatory interest or if a less discriminatory alternative could also serve that interest. The 2020 rule added new pleading requirements, new proof requirements, and new defenses that made it more difficult to prove that a policy violating the Fair Housing Act was lawful.
Due to a court ruling halting the implementation of the 2020 Rule in Massachusetts Fair Housing Center v. HUD, the 2020 Rule never went into effect.
Read HUD’s Final Rule on Restoring HUD's Discriminatory Effects Standard.
For more information, read this Fact Sheet.
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