HUD Moves to Reinstate the 2015 Affirmatively Furthering Fair Housing rule and the 2013 Disparate Impact rule

On April 13, 2021, HUD moved to reinstate two key fair housing regulations: the 2015 Affirmatively Furthering Fair Housing rule and the 2013 Disparate Impact rule.

The 2015 Affirmatively Furthering Fair Housing (“AFFH”) rule set out fair housing requirements for state and local governments that receive HUD funding. Among these were that these HUD funding recipients undertake an Assessment of Fair Housing (AFH) to examine racial and other disparities in their communities and then take “meaningful actions” to address at least some of these disparities. Reinstating the 2015 AFFH rule would rescind the 2020 rule, which went into effect on September 8, 2020, and which many criticized as significantly decreased the fair housing obligations of state and local governments that receive HUD funding.

The 2013 Disparate Impact rule codified a decades-long legal framework for showing a violation of the federal Fair Housing Act for policies and practices that have an unjustified discriminatory effect, even if they were not motivated by a discriminatory intent. Reinstating the 2013 Disparate Impact rule would rescind the 2020 Disparate Impact rule, which had been scheduled to go into effect on October 26, 2020, but was the subject of a nationwide preliminary injunction and stay prohibiting the implementation of the rule on October 25, 2020.

The 2021 AFFH action, titled Affirmatively Furthering Fair Housing; Restoring Statutory Definitions and Certifications (FR-6249), is an Interim Final Rule. The 2021 Disparate Impact action, titled Reinstatement of HUD’s Discriminatory Effects Standard (FR-6251), is a Proposed Rule. Both 2021 actions are currently pending EO 12866 Regulatory Review with the Office of Management and Budget of the Executive Office of the President. The substance of both rules will be made public within 90 days once they have been reviewed internally and published in the Federal Register.