Biden Administration proposes to reinstate the Discriminatory Effects Standard to address housing discrimination

August 24, 2021
by Michael Santos, Senior Policy Associate

In a previous blog post, we discussed how the Fair Housing Act (“Act”) prohibits discrimination in the sale, rental and financing of housing based on race, color, religion, national origin, sex, disability, and family status. The U.S. Department of Housing and Urban Development (HUD) and other federal courts interpret the Act to prohibit policies and practices with an unjustified discriminatory effect, regardless of whether there was an intent to discriminateThis means housing practices that may appear nondiscriminatory on their face but have a disproportionately negative effect on members of legally protected groups violate the Act (“disparate impact theory”).

The disparate impact theory provides additional tools to fix housing segregation and inequity that the federal government allowed to persist. For example, insurance companies that include unfavorable terms and conditions to housing providers who accept Section 8 Housing Choice Vouchers (which help fuel source-of-income discrimination and disproportionately harm women of color) can be held liable under the Act. Similarly, local exclusionary zoning laws that perpetuate segregation and nuisance and crime-free ordinances that disproportionately harm survivors of domestic violence can also violate the Act.

Even though a landlord could be liable through proof of discriminatory effects on a disparate impact theory, the Act does not define how to determine whether a given policy or practice has an unjustified discriminatory effect. In 2013, HUD published a regulation to address this omission, called the “2013 rule”. 

Implementation of the 2013 rule was interrupted in 2020 when the Trump Administration rescinded it and published its own rule (the “2020 rule”), which would have made it nearly impossible to find liability under the Act. Fortunately, a federal court prevented the 2020 rule from taking effect.

HUD is now proposing to reinstate the 2013 rule. Under the proposed rule, a “practice has a discriminatory effect where it actually or predictably results in a disparate impact on a group of persons or creates, increases, reinforces, or perpetuates segregated housing patterns because of race, color, religion, sex, handicap, familial status, or national origin.”

RESULTS strongly supports the reinstatement of the 2013 ruleOn August 24, 2021, RESULTS (along with other housing rights advocates of survivors of gender-based violence and partner organizations working to advance access to fair, equitable, and affordable housing) signed on to letters in support of HUD’s proposal to reinstate it. We also would support future efforts by HUD and the Biden Administration to further strengthen this rule to address the enduring legacy of racist housing policies and achieve housing justice for all.

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