The Department of Housing and Urban Development, via a final rule, is rescinding a 2020 Fair Housing Act rule and reinstating HUD’s Discriminatory Effects Standard, which dates back to 2013, the agency announced on Friday.
“Discrimination in housing continues today and individuals, including people of color and people with disabilities, continue to be denied equal access to rental housing and homeownership,” HUD Secretary Marcia L. Fudge said Friday in a statement. “Today’s rule brings us one step closer to ensuring fair housing is a reality for all in this country.”
The 2020 rule — HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard — never took effect, and the 2013 rule is still in force. Prior to the effective date of the 2020 rule, the US District Court for the District of Massachusetts issued a preliminary injunction in Massachusetts Fair Housing Center v. HUD, which stayed HUD’s implementation and enforcement of the rule.
The 2020 rule, although technically not in effect, was published in the Federal Register and shows up as the current regulation, leading to confusion about HUD’s position regarding standards of the Fair Housing Act, which the agency necessitated the 2023 rule announced Friday.
“Under the 2013 rule, the discriminatory effects framework was straightforward: a policy that had 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,” HUD said. “The 2020 rule complicated that analysis by adding new pleading requirements, new proof requirements and new defenses, all of which made it more difficult to establish that a policy violates the Fair Housing Act and harder for entities regulated by the Fair Housing Act to assess whether their policies were lawful. HUD now returns to the 2013 rule’s straightforward analysis.”
According to the agency, the 2013 rule is more consistent with how the Fair Housing Act has been applied in the courts and by HUD since 1968, and it more effectively implements the act’s “broad remedial purpose of eliminating unnecessary discriminatory practices from the housing market.”
“LeadingAge supports HUD’s continued efforts to support fair housing and end discrimination in the housing market,” Linda Couch, vice president of housing policy at LeadingAge, told the McKnight’s Business Daily on Friday. “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. Today’s action is a welcome formal repeal of a court-blocked 2020 attempt to undermine the standard’s purpose: to offer ways to fight back against policies that unnecessarily cause systemic inequality in housing, whether they were adopted with discriminatory intent or not. ”