On March 17, HUD announced that it has submitted a Final Rule titled Restoring HUD’s Discriminatory Effects Standard to the Federal Register.
The Final Rule rescinds the Department’s 2020 rule governing Fair Housing Act disparate impact claims and restores the 2013 “discriminatory effects” rule. The Fair Housing Act prohibits discrimination in housing and housing-related services because of race, color, religion, national origin, sex (including sexual orientation and gender identity), familial status, and disability.
HUD’s announcement states that “in the Final Rule, HUD emphasizes that the 2013 rule is more consistent with how the Fair Housing Act has been applied in the courts and in front of the agency for more than 50 years, and that it more effectively implements the Act’s broad remedial purpose of eliminating unnecessary discriminatory practices from the housing market.”
Under the 2013 rule, the discriminatory effects framework meant that a policy with a discriminatory effect on a protected class was unlawful if it was not necessary to achieve a substantial, legitimate, nondiscriminatory interest or if a less discriminatory alternative could also serve that interest.
The 2020 rule adjusted that analysis by adding new pleading requirements, new proof requirements, and new defenses. These new requirements made it more difficult to establish that a policy violates the Fair Housing Act. HUD now returns to the 2013 rule’s straightforward analysis.
This Final Rule will go into effect 30 days after it is published in the Federal Register. Because the 202 rule was temporarily halted by preliminary injunction, the 2013 rule has still been in effect, and regulated entities that were complying with the 2013 Rule have no need to change any practices.
LeadingAge supports HUD’s continued efforts to support fair housing and end discrimination in the housing market. The nation’s entire housing market, including for affordable senior housing, is well-served by HUD’s formal reinstatement of its 2013 discriminatory effects standard.