HUD's Implementation of the Fair Housing Act's Disparate Impact Standard

The Fair Housing Act prohibits discrimination in the sale, rental, or financing of dwellings and in other housing-related activities. Since 2013, HUD has issued three final rules for determining whether a given practice has an unjustified discriminatory effect under the Fair Housing Act, even where practices were not motivated by discriminatory intent. These rules formalized legal tests that were not explicit in statute and imposed a presumption of unlawful discrimination when any variance in outcomes exists among protected classes, even without a showing of a facially discriminatory policy or discriminatory intent. Through this rulemaking, HUD is proposing to remove its discriminatory effects regulations and leaving to courts questions related to interpretations of disparate impact liability under the Fair Housing Act.