HUD Revived Fair Housing Act Rules: Disparate Impact and Affirmatively Furthering Fair Housing

Description

President Biden signed an executive order that, among other things, directed HUD to reevaluate earlier agency decisions perceived to weaken the Fair Housing Act. In response to this directive, HUD has submitted draft rules to the Office of Management and Budget that would roll back two significant changes made by the prior administration's HUD.

First, HUD has submitted a proposed rule to revise the standard for disparate impact discrimination claims. Second, HUD has submitted an interim final rule related to the AFFH rule, an Obama-era regulation requiring that certain municipalities and housing authorities perform assessments related to desegregation. The review period for the two rules is limited to 90 days by executive order, so the substance of these rules should be made public by July 2021.

It is believed the current administration will reinstate a 2013 regulation codifying HUD's long-standing view that the Fair Housing Act banned housing practices that disparately impact protected classes of individuals and reestablish the three-part burden shifting test to establish a housing discrimination claim.

HUD's second proposed rule--an interim final rule that will take effect once published in the Federal Register--relates to the AFFH rule. AFFH required housing authorities, cities, and towns to analyze local housing data for discriminatory patterns and submit to HUD plans to address those patterns to continue receiving federal funds.

Listen as our expert panel discusses the current state of HUD regulations related to the Fair Housing Act and addresses concerns that all stakeholders may have regarding potential claims and risk.