President Biden Issues Fair Housing, Disparate Impact Memos

On Jan. 26, President Biden signed several new executive orders addressing racial equity, including a memorandum that directs HUD to mitigate racial bias in housing and advance fair housing laws. Biden said in a press conference, “We need to make equity and justice part of what we do every day… Again, I’m not promising we can end it tomorrow, but we are going to continue to make progress to eliminate systemic racism in every branch of the White House and the federal government.”

The memo to the HUD Secretary is entitled, “Redressing Our Nation’s and the Federal Government’s History of Discriminatory Housing Practices and Policies.” President Biden is seeking a return to Obama-era rules governing discrimination and fair housing. The memo directs HUD to examine two rules from the Trump administration for their impact on the federal government’s ability to affirmatively further fair housing, as required by the Fair Housing Act of 1968.

Under HUD’s previous rule, lenders, landlords, and other housing providers could be held liable for discrimination against protected classes even if it was not their intent to discriminate. The use of disparate impact was challenged all the way up to the U.S. Supreme Court, which upheld the rule in 2015.