Revised 10/28/2020

In the September 24, 2020, issue of the Federal Register (85 FR 60288, click here), the Department of Housing and Urban Development (HUD) published a Final Rule that amends the disparate impact standard regulation in 24 CFR §100.500 (“2013 Rule”) to better reflect the Supreme Court’s 2015 ruling in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S.Ct. 2507 (2015), which held that disparate impact claims are cognizable under the Fair Housing Act independent of the 2013 Rule.

The Final Rule (i) replaces the 2013 Rule’s burden-shifting test for determining whether a practice has an unjustified discriminatory effect with a more comprehensive burden-shifting test, (ii)  establishes a uniform standard for determining when a housing policy or practice with a discriminatory effect violates the Fair Housing Act, (iii) provides clarification regarding the application of  the disparate impact standard to State laws governing the business of insurance, and (iv) adds a remedies provision for discriminatory effect cases. The Final Rule also makes minor amendments to the discriminatory conduct provisions in 24 CFR §§100.5 and 100.70.

Full Memorandum