In an executive order issued today, President Biden directed the Department of Housing and Human Services to review the effects of a September 2020 rule that revised HUD’s standard for bringing disparate impact claims under the Fair Housing Act. The rule conformed HUD’s 2013 disparate impact rule with the Supreme Court’s 2015 decision in Texas Department of Housing Community Affairs v. Inclusive Communities, which recognized disparate impact analysis to demonstrate discrimination claims under the FHA but added key limitations to ensure the burden of proof in disparate impact cases is with the plaintiffs.
The order directs HUD to “take any necessary steps, as appropriate and consistent with applicable law, to implement the Fair Housing Act’s requirements that HUD administer its programs in a manner that affirmatively furthers fair housing and HUD’s overall duty to administer the Act . . . including by preventing practices with an unjustified discriminatory effect.”