HUD Seeks to Eliminate Disparate Impact Regulations in New Proposal; Comments Due February 13

By Renee Williams, NLIHC Senior Advisor for Public Policy 

HUD has proposed eliminating the agency’s 2013 “Fair Housing Act” (FHA) disparate impact regulations via a Notice of Proposed Rulemaking (NPRM) published January 14. The NPRM includes only a 30-day comment period, with comments due February 13, 2026.  

Taking a different approach from the first Trump administration, HUD is not seeking to replace its existing disparate impact regulations; instead, HUD is simply removing them and wants courts to determine how to evaluate disparate impact liability under the FHA. 

This proposal continues the current administration’s efforts to eliminate the use of disparate impact theory across the federal government.  

Brief Background 

The FHA prohibits housing discrimination because of race, color, national origin, sex, disability, familial status, and religion. There are different types of discrimination, including intentional discrimination (e.g., a landlord refuses to rent to a family because the household includes young children) and discrimination that has a disparate impact based on a protected characteristic such as race or sex (e.g., a local ordinance has an unjustified disproportionate effect on Black residents but does not explicitly mention race). While intentional discrimination is often easier to uncover, disparate impact helps identify discriminatory practices that are facially neutral.  

In 2013, HUD issued regulations that set a single standard for evaluating disparate impact claims. Despite the regulations being issued in 2013, disparate impact theory had been utilized for decades prior. In 2015, the U.S. Supreme Court, in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, affirmed that disparate impact claims can be brought under the FHA.  

After the first Trump administration finalized (but was blocked from implementing) its own disparate impact regulations, the Biden administration restored the 2013 regulations.   

For more detailed background regarding disparate impact, please refer to the 2025 Advocates’ Guide. 

Notice of Proposed Rulemaking 

HUD’s NPRM removes, but does not replace, the 2013 disparate impact regulations. The NPRM instead states that “[i]t is appropriate for courts, not a Federal agency, to make determinations related to the interpretation of disparate impact liability under the Fair Housing Act.”  

In its preamble, HUD cites several developments, including Executive Order 14281 (“Restoring Equality of Opportunity and Meritocracy”), the Loper Bright Supreme Court decision, and other executive orders regarding deregulation.  

The preamble’s initial summary states that the disparate impact regulations “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.” Importantly, under the 2013 regulations, defendants are afforded an opportunity to provide a justification for a challenged practice with a discriminatory effect, and fair housing liability is not established until after the plaintiff shows that a defendant’s objectives could be achieved with a policy that has less discriminatory impact. 

Though the NPRM acknowledges that “it is HUD’s policy to afford the public ‘not less than sixty days for submission of comments,’” HUD asserts that a shorter comment period is appropriate. HUD argues that there have been prior opportunities to comment on past disparate impact rulemakings. HUD also claims that the NPRM does not “change any requirements or affect any rights or obligations.”  

Comment Deadline 

HUD is providing 30 days for public comment. Members of the public can submit comments through February 13, 2026, at 11:59 pm ET, via regulations.gov.  

Read HUD’s Disparate Impact NPRM and submit comments here. 

Read the Advocates’ Guide discussion of disparate impact here.