The Fair Housing Act (FHA): A Legal Overview

June 27, 2024 R48113

The Fair Housing Act (FHA): A Legal Overview
June 27, 2024
The Fair Housing Act (FHA) was enacted “to provide, within constitutional limitations, for fair
housing throughout the United States.” The original 1968 Act prohibited discrimination on the
David H. Carpenter
basis of “race, color, religion, or national origin” in the sale or rental of housing, the financing of
Legislative Attorney
housing, or the provision of brokerage services. In 1974, Congress amended the Act to add sex

discrimination to the list of prohibited activities. The last major change to the Act occurred in
1988 when it was amended to prohibit discrimination on the additional grounds of physical and

mental disability, as well as familial status. However, legislation that would amend the FHA is
routinely introduced in Congress, including H.R. 15, H.R. 697, H.R. 1431, H.R. 2846, H.R. 2918, H.R. 4439, S. 5, S. 1267,
and S. 1293 in the 118th Congress. These bills would extend the Act’s anti-discrimination provisions to prohibit
discrimination expressly based on sexual orientation, gender identity, marital status, source of income, and status as a
military servicemember or veteran.
Key Takeaways
• The FHA prohibits discrimination on the basis of “race, color, religion, sex, handicap, familial status, or
national origin.” The FHA does not expressly prohibit discrimination the basis of sexual orientation or
gender identity. However, courts have construed the Act’s prohibition against sex discrimination to
encapsulate discrimination on the basis of sexual orientation and gender identity in line with the Supreme
Court’s 2020 decision in Bostock v. Clayton County.
• The FHA applies broadly to public and private housing-related activities, including single-family homes,
apartments, condominiums, and mobile homes. The Act’s coverage also extends to the secondary mortgage
market.
• Although the Act is broad, it exempts some activities. For example, the FHA does not restrict reasonable
zoning laws governing “the maximum number of occupants permitted to occupy a dwelling.” The Act also
exempts from its rental discrimination provisions units in dwellings that are intended for four or fewer
families if the owner of the property resides in one of the units.
• In June 2015, the Supreme Court held in Texas Department of Housing and Community Affairs v. Inclusive
Communities Project that, in addition to intentional discrimination, disparate impact claims are cognizable
under the FHA—a view previously espoused by the Department of Housing and Urban Development
(HUD) and the eleven U.S. Courts of Appeals to render opinions on the issue.
• Although plaintiffs historically have faced fairly steep odds of getting their disparate impact claims past the
preliminary stages of litigation (much less succeeding on the merits), the Court urged lower courts to
dispose quickly of disparate impact claims that fail to meet the “cautionary standards” outlined in Inclusive
Communities.
The FHA may be enforced by the Attorney General, by HUD, and through private rights of actions by victims of
discrimination. Potential remedies available under the Act include actual damages, equitable relief, reasonable legal costs,
punitive damages, and civil penalties.
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The Fair Housing Act (FHA): A Legal Overview

Introduction
The Fair Housing Act (FHA) was enacted “to provide, within constitutional limitations, for fair
housing throughout the United States.”1 The original 1968 Act prohibited discrimination on the
basis of “race, color, religion, or national origin” in the sale or rental of housing, the financing of
housing, or the provision of brokerage services.2 In 1974, the Act was amended to add sex
discrimination to the list of prohibited activities.3 The last major change to the FHA occurred in
1988 when it was amended to prohibit discrimination on the additional grounds of physical and
mental disability, as well as familial status.4 Legislation that would amend the FHA is routinely
introduced in Congress, including proposals to extend the Act’s anti-discrimination provisions to
expressly prohibit discrimination based on sexual orientation, gender identity, marital status,
source of income, and status as a military servicemember or veteran.5
This report provides an overview of the types of discriminatory practices barred by the FHA, as
well as certain activities that are exempted from the Act’s coverage. It also analyzes various legal
tests applied by courts to assess both intentional discrimination (a.k.a., disparate treatment) and
discriminatory effect claims brought under the Act. Additionally, the report addresses several
specific types of discrimination that have been the source of fair housing litigation, including how
the prohibition against discriminating on the basis of sex has been interpreted to encompass
sexual orientation and gender identity, how the FHA’s protections against discrimination on the
basis of mental and physical disabilities affect local zoning laws applicable to group homes, and
how the Act’s proscription on discriminating against families with children interplays with
housing communities for older persons. The report concludes with an overview of how the Act
can be enforced, as well as the potential remedies available to victims of unlawful discrimination
and potential penalties that can be assessed against violators.
Housing Practices in Which Discrimination
Is Prohibited
The FHA prohibits discrimination on the basis of race, color, religion, sex, disability, familial
status, and national origin in the sale or rental of housing, housing financing, and brokerage
services. The FHA applies to a broad assortment of housing, both public and private, including
single-family homes, apartments, condominiums, and mobile homes.6 The Act’s coverage extends
to “residential real estate-related transactions,” which include both the “making [and] purchasing

1 42 U.S.C. § 3601. The FHA, 42 U.S.C. §§ 3601–3631, was originally enacted as Title VIII of the Civil Rights Act of
1968.
2 Id. §§ 3604–3606.
3 Housing and Community Development Act of 1974, Pub. L. No. 93-383, 88 Stat. 633.
4 Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, 102 Stat. 1619. The FHA uses the term handicap, but
this report uses the term disability instead.
5 See, e.g. H.R. 15, 118th Cong. (2023); H.R. 697, 118th Cong. (2023); H.R. 1431, 118th Cong. (2023); H.R. 2846,
118th Cong. (2023); H.R. 2918, 118th Cong. (2023); H.R. 4439, 118th Cong. (2023); S. 5, 118th Cong.; S. 1267, 118th
Cong. (2023); S. 1293, 118th Cong. (2023).
6 See 42 U.S.C. § 3602(b); 24 C.F.R. § 100.201 (2023). Courts have also concluded that the FHA applies, at times, to
college dormitories and homeless shelters. See, e.g., United States v. Univ. of Neb. at Kearney, 940 F. Supp. 2d 974,
983 (D. Neb. 2013) (university housing); Turning Point, Inc. v. City of Caldwell, 74 F.3d 941, 942 (9th Cir. 1996)
(homeless shelter).
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The Fair Housing Act (FHA): A Legal Overview

of loans . . . secured by residential real estate [and] the selling, brokering, or appraising of
residential real property,”7 which includes the secondary mortgage market.8
Department of Housing and Urban Development (HUD) regulations elaborate upon and provide
illustrations of covered housing practices.9 The illustrations include engaging in the following
activities on the basis of an individual’s race, color, religion, sex, disability, or familial status:
• refusing to sell or rent a dwelling;10
• refusing to provide services or facilities in connection with the sale or rental of a
dwelling;11
• engaging in conduct that makes dwellings unavailable;12
• steering individuals toward or away from housing;13
• advertising or publishing discriminatory notices with regard to the selling or
renting of a dwelling;14
• misrepresenting the availability of a dwelling;15

7 42 U.S.C. § 3605.
8 See 24 C.F.R. § 100.125.
9 See, e.g., id. §§ 100.50–.90.
10 Id. § 100.60. Prohibited actions under this section include: “(1) [f]ailing to accept or consider a bona fide offer . . .
(2) [r]efusing to sell or rent a dwelling [], or to negotiate for a sale or rental . . . (3) [i]mposing different sales prices or
rental charges for the sale or rental of a dwelling . . . (4) [u]sing different qualification criteria or applications . . . or (5)
[e]victing tenants because of their race, color, religion, sex, handicap, familial status, or national origin.” Id.
11 Id. § 100.65. Such discriminatory conduct includes: “(1) [u]sing different provisions in leases or contracts of sale . . .
(2) [f]ailing or delaying maintenance or repairs of . . . dwellings . . . (3) [f]ailing to process an offer for the sale or rental
of a dwelling or to communicate an offer accurately . . . (4) [l]imiting the use of privileges, services or facilities in
connection with the sale or rental of a dwelling because of race, color, religion, sex, handicap, familial status, or
national origin . . . or (5) [d]enying or limiting services or facilities in connection with the sale or rental of a dwelling,
because a person failed or refused to provide sexual favors.” Id.
12 Id. § 100.70(d). Such discriminatory conduct includes: “(1) [d]ischarging or taking other adverse action against an
employee, broker, or agent because he or she refused to participate in a discriminatory practice [or] . . . (2) [e]mploying
codes or other devices to segregate or reject applicants, purchasers or renters . . . or refusing to deal with certain real
estate brokers or agents . . . (3) [d]enying or delaying the processing of an application made by a purchaser or renter or
refusing to approve such a person for occupancy in a cooperative or condominium . . . [or] (4) [r]efusing to provide
municipal services or property or hazard insurance for dwellings or providing such services or insurance differently
because of race, color, religion, sex, handicap, familial status, or national origin.” Id.
13 Id. § 100.70(c). Prohibited steering practices include: “(1) [d]iscouraging any person from inspecting, purchasing, or
renting a dwelling . . . (2) [d]iscouraging the purchase or rental of a dwelling . . . by exaggerating drawbacks or failing
to inform any person of desirable features of a dwelling or of a community, neighborhood, or development . . . (3)
[c]ommunicating to any prospective purchaser that he or she would not be comfortable or compatible with existing
residents of a community, neighborhood or development . . . [or] (4) [a]ssigning any person to a particular section of a
community, neighborhood or development, or to a particular floor of a building, because of race, color, religion, sex,
handicap, familial status, or national origin.” Id.
14 Id. § 100.75. Discriminatory advertisements or notices include: “(1) [u]sing words, phrases, photographs,
illustrations, symbols or forms which convey that dwellings are available or not available to a particular group of
persons . . . (2) [e]xpressing to agents, brokers, employees, prospective sellers or renters or any other persons a
preference for or limitation on any purchaser or renter . . . (3) [s]electing media or locations for advertising the sale or
rental of dwellings which deny particular segments of the housing market information about housing opportunities . . .
[or] (4) [r]efusing to publish advertising for the sale or rental of dwellings or requiring different charges or terms for
such advertising because of race, color, religion, sex, handicap, familial status, or national origin.” Id.
15 Id. § 100.80. Illustrations of this prohibited activity include: “(1) [i]ndicating through words or conduct that a
dwelling which is available for inspection, sale, or rental has been sold or rented . . . (2) [r]epresenting that [a person
cannot rent or purchase a dwelling because] covenants or other deed, trust, or lease provisions which purport to restrict
(continued...)
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The Fair Housing Act (FHA): A Legal Overview

• blockbusting, i.e., using racial or other prohibited motives to induce or attempt to
induce an individual to sell or rent a dwelling for profit;16 and
• denying “access to membership or participation in any multiple-listing service,
real estate brokers association, or other service . . . relating to the business of
selling or renting dwellings.”17
The FHA also makes it unlawful to “coerce intimidate, threaten, or interfere with” individuals for
exercising or aiding others in the exercise of their rights under the Act.18
Finally, as noted above, the FHA applies to public as well as private housing. As a result, a
number of lawsuits have challenged the fair housing practices of state and local housing
authorities and even HUD itself, particularly regarding discrimination in low-income public
housing.19 For example, in one 2005 case, Black public housing residents in Baltimore sued HUD
and various local agencies, alleging racial discrimination. The court ultimately held that HUD had
violated the FHA “by failing adequately to consider regional approaches to ameliorate racial
segregation in public housing in the Baltimore Region.”20
Exemptions from Coverage
Although the FHA is broadly applicable, it includes some exemptions. For instance:
• Small housing providers. The FHA does not apply to single-family homes that
are rented or sold without the use of a real estate agent by a private owner who
owns no more than three single-family homes at the same time, provided that
certain other conditions are met.21 The Act’s rental discrimination restrictions are

the sale or rental of a dwelling . . . (3) [e]nforcing covenants or other deed, trust, or lease provisions which preclude the
sale or rental of a dwelling to any person . . . (4) [l]imiting information, by word or conduct, regarding suitably priced
dwellings . . . [or] (5) [p]roviding false or inaccurate information regarding the availability of a dwelling for sale or
rental to any person . . . because of race, color, religion, sex, handicap, familial status, or national origin.” Id.
16 Id. § 100.85(b). The HUD regulations define blockbusting to mean “for profit, to induce or attempt to induce a
person to sell or rent a dwelling by representations regarding the entry or prospective entry into the neighborhood of a
person or persons of a particular race, color, religion, sex, familial status, or national origin or with a handicap.” Id. §
100.85(a). For blockbusting to be established, profit does not have to be realized so long as profit was a factor for
engaging in the activity. Id. § 100.85(b).
17 Id. § 100.90. Such prohibited actions include: “(1) [s]etting different fees for access to or membership in a multiple
listing service . . . (2) [d]enying or limiting benefits accruing to members in a real estate brokers’ organization . . . (3)
[i]mposing different standards or criteria for membership in a real-estate sales or rental organization . . . [or] (4)
[e]stablishing geographic boundaries or office location or residence requirements for access to or membership or
participation in any multiple listing service, real estate brokers’ organization or other service . . . because of race, color,
religion, sex, handicap, familial status, or national origin.” Id.
18 42 U.S.C. § 3617. Violations of this section include: “(1) coercing a person . . . to deny or limit the benefits provided
that person in connection with the sale or rental of a dwelling or in connection with a residential real estate-related
transaction . . . (2) [t]hreatening, intimidating, or interfering with persons in their enjoyment of a dwelling . . . (3)
[t]hreatening an employee or agent with dismissal or adverse action, or taking such adverse employment action, for any
effort to assist a person seeking access to the sale or rental of a dwelling or seeking access to any residential real estate-
related transaction . . . (4) [i]ntimidating or threatening any person because that person is engaging in activities
designed to make other persons aware of [their fair housing rights, or] . . . (5) [r]etaliating against any person because
that person has made a complaint, testified, assisted, or participated in a proceeding under the Fair Housing Act.”
24 C.F.R. § 100.400.
19 See, e.g., Hawkins v. HUD, 16 F.4th 147 (5th Cir. 2021); NAACP v. Sec’y of HUD, 817 F.2d 149 (1st Cir. 1987).
20 Thompson v. HUD, 348 F. Supp. 2d 398, 524 (D. Md. 2005).
21 42 U.S.C. § 3603(b)(1). Other requirements include the condition that the house be sold or rented without a broker
and without advertising. HUD regulations explain that advertising indicating a discriminatory preference or limitation
is prohibited under the Act even when such discrimination itself is not. 24 C.F.R. § 100.10(c).
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also inapplicable to units in dwellings that are intended for four or fewer families
when the property owner resides in one of the units.22
• Private clubs, religious organizations, and retirement communities. In
addition, the Act does not bar a religious group or a nonprofit entity run by a
religious group “from limiting the sale, rental, or occupancy of dwellings that it
owns or operates for other than a commercial purpose to persons of the same
religion, or from giving preferences to such persons, unless membership in such
religion is restricted on account of race, color, or national origin.”23 The Act also
does not prevent a private club “from limiting the rental or occupancy of []
lodgings to its members or from giving preference to its members” if those
lodgings are not being run for a commercial purpose.24 As discussed below in
“Familial Discrimination and Housing for Older Persons,” housing for older
persons, as the term is defined by the Act, is exempted from the FHA’s
proscription of discrimination on the basis of familial status. In other words,
housing that is intended for individuals over the age of fifty-five and meets
various other conditions established by the FHA may exclude families with
children.25
• Zoning and occupancy standards. The FHA does not “limit[] the applicability
of any reasonable local, State, or Federal restrictions regarding the maximum
number of occupants permitted to occupy a dwelling.”26 In 1995, the Supreme
Court considered the issue of zoning restrictions in the context of group homes
for individuals with disabilities. In City of Edmonds v. Oxford House, Inc.,27 a
group home for ten to twelve adults recovering from alcoholism and drug
addiction was cited for violating a city ordinance because it was located in a
neighborhood zoned for single-family residences. The ordinance in question
defined “family” as “persons [without regard to number] related by genetics,
adoption, or marriage, or a group of five or fewer [unrelated] persons.”28 The
Supreme Court held that the FHA’s reasonable occupancy limit exemption did
not apply because the ordinance’s definition of “family” was not a restriction
regarding “‘the maximum number of occupants’ a dwelling may house.”29
Instead, the Court concluded that the ordinance, by setting a numerical ceiling for
unrelated occupants but not related occupants, was designed to preserve the
“family character of [] neighborhood[s].”30 As a result, the Court held that the
ordinance was not exempt from the FHA’s prohibition against disability
discrimination.31

22 42 U.S.C. § 3603(b)(2). The FHA’s advertising restrictions still apply to these owner-occupied scenarios. 24 C.F.R.
§ 100.10(c).
23 42 U.S.C. § 3607(a).
24 Id.
25 Id. § 3607(b).
26 Id. § 3607(b)(1).
27 514 U.S. 725 (1995).
28 Id. at 728 (citation omitted).
29 Id. (quoting 42 U.S.C. § 3607(b)(1)).
30 Id.
31 Id. The Court did not decide whether or not this ordinance actually violated the FHA. Id. at 738. The FHA does not
prevent zoning ordinances that restrict group homes occupied by individuals who are not of a protected class, such as
fraternity students.
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The Fair Housing Act (FHA): A Legal Overview

Additionally, in response to concerns that occupancy limits could conflict with
the prohibition against familial status discrimination, Congress enacted Section
589 of the Quality Housing and Work Responsibility Act of 1998.32 This
legislation required HUD to adopt the standards specified in a HUD general
counsel memorandum dated March 20, 1991,33 which states that housing owners
and managers have discretion to “implement reasonable occupancy requirements
based on factors such as the number and size of sleeping areas or bedrooms and
the overall size of the housing unit.”34 HUD concluded that “an occupancy policy
of two persons in a bedroom, as a general rule, is reasonable” under the FHA.35
Evaluation of Discrimination Claims
FHA discrimination claims fall into two broad categories: (1) intentional, also referred to as
disparate treatment discrimination, and (2) discriminatory effect. Courts apply different legal
tests to assess the validity of intentional- versus effect-discrimination claims. Disparate treatment
claims allege that a defendant made a covered housing decision based on “‘a discriminatory intent
or motive.’”36 Discriminatory effect claims, in contrast, involve allegations that a facially neutral
housing practice “actually or predictably results in a disparate impact on a group of persons or
creates, increases, reinforces, or perpetuates segregated housing patterns because of race, color,
religion, sex, handicap, familial status, or national origin.”37 These two categories of
discrimination are explored in turn.
Disparate Treatment/Intentional Discrimination
Intentional discrimination claims under the FHA can be supported through either (1) direct
evidence of discrimination or (2) indirect, circumstantial evidence. Courts apply different legal
tests to assess claims based on direct and indirect evidence. Additionally, courts apply a different
legal framework to assess a subset of disparate treatment claims involving statutes or local
ordinances that discriminate on their face against a protected class.38
Direct Evidence
“Direct evidence is evidence ‘showing a specific link between the alleged discriminatory animus
and the challenged decision, sufficient to support a finding . . . that an illegitimate criterion

32 Pub. L. No. 105-276, § 589, 112 Stat. 2518, codified at 42 U.S.C. § 3608 note.
33 Memorandum from Frank Keating, HUD Gen. Couns., to all HUD Reg’l Couns. (Mar. 20, 1991) (reprinted at 63
Fed. Reg. 70983–87). See also Fair Housing Enforcement—Occupancy Standards; Notice of Statement of Policy, 63
Fed. Reg. 70982 (Dec. 18, 1998).
34 Id. at 70984.
35 Id.
36 24 C.F.R. § 100.500(a); see also Metro. Hous. Dev. Corp. v. Vill. of Arlington Heights, 558 F.2d 1283, 1290 (7th
Cir. 1977).
37 Tex. Dep’t of Hous. & Cmty Affairs v. Inclusive Communities Project, 576 U.S. 519, 524 (2015) (quoting Ricci v.
DeStafano, 557 US. 557, 577 (2009)).
38 Larkin v. Mich. Prot. and Advoc. Serv., 89 F.3d 285, 289 (6th Cir. 1996); Bangerter v. Orem City Corp. 46 F.3d
1491, 1501 (10th Cir. 1995); see also Int’l Union, United Auto., Aerospace & Agric. Implement Workers v. Johnson,
499 U.S. 187, 199 (1991) (holding the same in the Title VII employment discrimination context). Some courts treat this
as a distinct category of discrimination. See, e.g., Potomac Grp. Home Corp. v. Montgomery Cnty, 823 F. Supp. 1285,
1295 (D. Md. 1993).
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actually motivated the adverse [decision].’”39 Direct evidence of discrimination can include
openly discriminatory statements of hostility expressed by a landlord regarding a tenant’s race or
other protected basis or housing policies that, on their face, treat members of a protected class less
favorably than others, such as a landlord advertising a “no child” policy.40 When a plaintiff
provides sufficient direct evidence to support an intentional discrimination claim, the defendant,
to avoid liability under the FHA, generally has the burden of proving by a preponderance of the
evidence41 that it would have denied or revoked the housing benefit regardless of the
discrimination. In other words, the defendant would have to prove that, regardless of the
discrimination, the housing benefit would have been denied or revoked for nondiscriminatory
reasons anyway.42
Indirect or circumstantial evidence is evidence that supports a conclusion that something did or
did not occur.43 Indirect evidence of discrimination can include evidence of a landlord continuing
to show an apartment to prospective White tenants after telling a Black family that the apartment
was no longer available for rent.44 FHA disparate treatment claims based on circumstantial
evidence from which discrimination may be inferred are evaluated under the so-called McDonnell
Douglas45 burden-shifting framework. Under McDonnell Douglas, the initial burden rests with
the plaintiff to establish a prima facie case of intentional discrimination by a preponderance of the
evidence.46 A plaintiff can establish a prima facie case by evidencing that (a) the plaintiff is a
member of a protected class; (b) the plaintiff is qualified for a covered housing-related service or
activity (e.g., housing rental or purchase); (c) the plaintiff had a housing-related service or
activity denied or a housing benefit revoked by the defendant; and (d) the relevant housing-
related service or activity remained available after it was revoked or denied.47
If a plaintiff makes a prima facie case, then the burden shifts to the defendant to provide evidence
that it revoked or denied the housing benefit to further a legitimate, nondiscriminatory purpose.
The Supreme Court has noted that “[t]he explanation provided must be legally sufficient to justify

39 Gallagher v. Magner, 619 F.3d 823, 831 (8th Cir. 2010) (quoting Griffith v. City of Des Moines, 387 F.3d 733, 736
(8th Cir. 2004); see also Kormoczy v. Sec’y, HUD, 53 F.3d 821, 824 (7th Cir. 1995) (“Direct evidence is that which
can be interpreted as an acknowledgment of the defendant’s discriminatory intent.”).
40 See Memorandum from Jeanine M. Worden, HUD Assoc. Gen. Couns. for Fair Housing, to Timothy Smyth, HUD
Deputy Assistant Sec’y for Enf’t Programs 1–2 (Sep. 4, 2018) (citing Cmty. House, Inc. v. City of Boise, 490 F.3d
1041, 1048 (9th Cir. 2007)), https://www.hud.gov/sites/dfiles/FHEO/images/AJElementsofproofmemocorrected.pdf
(“A facially discriminatory policy is one which on its face applies less favorably to a protected group”); Bangerter v.
Orem City Corp., 46 F.3d 1491, 1500–01 (10th Cir. 1995) (facially discriminatory policy imposed conditions that
applied only to group homes for persons with disabilities).
41 Preponderance of the Evidence, BLACK’S LAW DICTIONARY (11th ed. 2019) (“The greater weight of the evidence, not
necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most
convincing force.”).
42 Kormoczy, 53 F.3d at 824 (”[O]nce the plaintiff demonstrates disparate treatment through the direct method, a
defendant must prove by a preponderance of the evidence that it would have made the same decision absent the
impermissible factor.”).
43 See Memorandum from Jeanine M. Worden, supra note 40, at 2.
44 Id.
45 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). McDonnell Douglas is an employment discrimination case
arising under Title VII of the Civil Rights Act of 1964, but courts have applied it to the FHA as well. See, e.g., 2922
Sherman Ave. Tenants’ Ass’n v. District of Columbia, 444 F.3d 673, 682 (D.C. Cir. 2006); Sanghvi v. City of
Claremont, 328 F.3d 532, 536–38 (9th Cir. 2003); Kormoczy, 53 F.3d at 823–24.
46 McDonnell Douglas, 411 U.S. at 802.
47 See id.; 2922 Sherman Ave. Tenants’ Ass’n, 444 F.3d at 682 (collecting cases applying McDonnell Douglas’s
burden-shifting framework to FHA disparate treatment claims).
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a judgment for the defendant.”48 The justification requires actual evidence and must be more than
“an answer to the complaint or [an] argument by counsel.”49 If the defendant is able to meet this
burden, then the plaintiff can still prevail by showing, based a preponderance of the evidence, that
the stated purpose for the denial or revocation was really just a pretext for discrimination.50
Facially Discriminatory Law
Laws that explicitly differentiate between a protected class and unprotected groups are generally
“characterized as claims of intentional discrimination.”51 (These types of claims frequently come
up in the context of local zoning laws that impact group homes, which are discussed in the
“Group Homes and Zoning Restrictions” section of this report.) As the Supreme Court has
explained in the analogous Title VII of the Civil Rights Act of 1964 employment context, “the
absence of a malevolent motive does not convert a facially discriminatory policy into a neutral
policy with a discriminatory effect.”52 Plaintiffs, therefore, establish a prima facie case of
intentional discrimination by simply proving that the law in question treats an FHA-protected
class differently.53
Upon meeting this burden, the federal courts of appeals are split as to which of two disparate
treatment tests defendants must meet. A minority of courts, including the U.S. Court of Appeals
for the Eighth Circuit (Eighth Circuit), applies a rational basis test, which merely requires the
defendant town or city to show there is a legitimate, nondiscriminatory purpose for classification
(or denial from a variance) on the basis of an FHA-protected class.54 This test is a relatively low
burden to meet. The majority rule, which is followed by the U.S. Courts of Appeals for the Sixth
(Sixth Circuit), Ninth, and Tenth Circuits, on the other hand, requires the defendant to meet a
more exacting test—to show that the justification for the facial discrimination is (1) beneficial to
the members of the protected class or (2) reasonably related to a matter of public safety that is
“tailored to the particularized concerns [of the] individual residents” that are targeted by the law
in question.55

48 Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 255 (1981).
49 Id. at 255 n.9 (“An articulation not admitted into evidence will not suffice. Thus, the defendant cannot meet its
burden merely through an answer to the complaint or by argument of counsel.”).
50 McDonnell Douglas, 411 U.S. at 804.
51 Bangerter v. Orem City Corp. 46 F.3d 1491, 1500–01 (10th Cir. 1995).
52 United Auto. Workers v. Johnson Controls, Inc, 499 U.S. 187, 199 (1991).
53 Bangerter, 46 F.3d at 1500–01.
54 Oxford House-C v. City of St. Louis, 77 F.3d 249, 251–52 (8th Cir. 1996). This test is adapted from one applicable
to constitutional claims under the Equal Protection Clause. Some courts have criticized the Eighth Circuit’s rational
basis test because (1) FHA claims are based in statute, not the Constitution; (2) the FHA protects classes that are not
protected under the Equal Protection Clause (e.g., individuals with disabilities, families with children); and (3) it seems
at odds with the Supreme Court’s treatment of analogous claims in the Title VII context. See, e.g., Johnson Controls,
499 U.S. at 211; Cmty. House v. City of Boise, 490 F.3d 1041, 1050 (9th Cir. 2007).
55 Bangerter, 46 F.3d at 1503; see also Cmty. House, 490 F.3d at 1050 (“The Sixth and Tenth Circuits employ a more
searching method of analysis. To allow the circumstance of facial discrimination under the Sixth and Tenth Circuits’
approach, a defendant must show either: (1) that the restriction benefits the protected class or (2) that it responds to
legitimate safety concerns raised by the individuals affected, rather than being based on stereotypes. We will follow the
standard adopted by the Sixth and Tenth Circuits, which standard is, we believe, more in line with the Supreme Court’s
analysis in Johnson Controls.”); Larkin v. Mich. Prot. & Advoc. Serv., 89 F.3d 285, 291 (6th Cir. 1996) (“Therefore, in
order for facially discriminatory statutes to survive a challenge under the FHAA [i.e., the Fair Housing Amendments
Act of 1988], the defendant must demonstrate that they are ‘warranted by the unique and specific needs and abilities of
those [disabled] persons’ to whom the regulations apply.” (quoting Bangerter, 46 F.3d at 1503–04)).
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Discriminatory Effects
In addition to barring intentional discrimination, HUD and courts have historically recognized
that the FHA also bars housing actions that have a discriminatory effect because they either result
in a disparate impact on a protected class (i.e., disparate impact) or perpetuate segregation (i.e.,
segregative effect).56 However, the viability of discriminatory effect claims under the FHA was
indirectly called into question by the Supreme Court’s 2005 decision Smith v. City of Jackson,
Mississippi57—a case involving the federal Age Discrimination in Employment Act of 1967
(ADEA). Smith prompted a number of legal challenges questioning whether discriminatory effect
claims remain cognizable under the FHA, culminating in a 2015 Supreme Court decision
confirming that they are viable,58 as well as conflicting rulemakings on the subject by HUD
during the Obama, Trump, and Biden Administrations.
This section provides an overview of these legal challenges, judicial decisions, and varying
rulemakings, which is followed by a legal analysis of disparate impact and segregative effect
claims.
Discriminatory Effects: Litigation and Administrative Actions
In Smith, the Court held that the ADEA supports discriminatory effect claims in part because the
law expressly prohibits actions that “adversely affect” a protected class.59 Due to the absence of
the same statutory language in the FHA, various court decisions following Smith raised questions
about whether the Act supports discriminatory effect claims and, if it does, what test courts
should apply to evaluate them.60 This uncertainty sparked conflicting regulations issued by HUD

56 Metro. Hous. Dev. Corp. v. Vill. of Arlington Heights, 558 F.2d 1283, 1290 (7th Cir. 1977); see also 24 C.F.R.
§ 100.500(a) (“A practice has a discriminatory effect where it actually or predictably results in a disparate impact on a
group of persons or creates, increases, reinforces, or perpetuates segregated housing patterns . . . because of race, color,
religion, sex, handicap, familial status, or national origin.”). Courts often refer to discriminatory effect and disparate
impact claims interchangeably. See, e.g,, Tx. Dept. of Hous. & Cmty. Aff. v. Inclusive Cmties., 576 U.S. 519, 536–37
(2015); but see Implementation of the FHA’s Discriminatory Effects Standard, 78 Fed. Reg. 11460 (Feb. 15, 2013) (to
be codified at 24 C.F.R. pt. 100) (distinguishing segregative effect and disparate impact claims under the larger rubric
of discriminatory effect claims). This might be, in part, because segregative effect claims appear to be unique to
housing-based discrimination laws, whereas disparate impact claims apply to a broader array of discrimination laws,
such as the employment-based Age Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964.
This report uses the term discriminatory effect to encompass both disparate impact and segregative effect claims except
when quoting judicial opinions.
57 544 U.S. 228 (2005).
58 Inclusive Cmties., 576 U.S. at 519.
59 Id. at 235–38.
60 See, e.g., Am. Ins. Assoc. v. HUD, 74 F. Supp. 3d 30 (D.D.C. 2014) (interpreting the FHA as prohibiting only
intentional discrimination, not discriminatory effects, and vacating HUD’s 2013 rule). The district court’s decision was
subsequently vacated and remanded for reconsideration in accordance with the Supreme Court’s Inclusive Communities
ruling. Am. Ins. Assoc. v. HUD, No. 14-5321, 2015 WL 14038463 (D.C. Cir. Sept. 23, 2015) (per curiam). Before
Inclusive Communities, the Supreme Court had previously granted certiorari in two different cases to address whether
disparate impact claims were cognizable under the FHA, but the parties in both cases settled outside of court before
Supreme Court decisions were issued. Twp. of Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc., 570 U.S.
904 (2013); Magner v. Gallagher, 565 U.S. 1013 (2011). Both cases were dismissed before the Court heard any
argument. Twp. of Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc., 571 U.S. 1023 (2013); Magner v.
Gallagher, 565 U.S. 1187 (2012).
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under the successive Obama,61 Trump,62 and Biden Administrations,63 the first two of which
prompted litigation. The uncertainty over discriminatory effect liability under the FHA also
percolated in separate lawsuits, one of which the Supreme Court ultimately ruled on in 2015.
HUD’s differing regulations and ensuing litigation challenging those regulations, as well as the
intervening Supreme Court opinion in 2015, Texas Department of Housing & Community Affairs
v. Inclusive Communities Project, Inc.,64 are addressed in turn.
HUD’s Dueling Regulations
Amidst the uncertainty regarding discriminatory effect discrimination under the FHA following
the Supreme Court’s Smith opinion,65 HUD, for the first time in February 2013 during the Obama
Administration, issued regulations to “formalize HUD’s long-held interpretation of the
availability of ‘discriminatory effects’ liability under the Fair Housing Act and to provide
nationwide consistency in the application of that form of liability.”66 In 2014, a federal district
court briefly vacated the 2013 discriminatory effect rule after holding that discriminatory effect
claims are not cognizable under the FHA and that HUD had exceeded its statutory authority in
issuing the rule.67 While the appeal of that district court decision was pending, the Supreme Court
issued the Inclusive Communities decision.68
Inclusive Communities
The Inclusive Communities Court held that discriminatory effect claims are cognizable under the
FHA.69 The Court’s decision did not expressly adopt the discriminatory effect test implemented
by HUD’s 2013 rule; rather, the Court referenced the 2013 rule and adopted a three-step burden-
shifting test using language similar, but not identical, to the 2013 rule.70 In so doing, the Court
cautioned that discriminatory effect claims must rely on more than just “a statistical disparity,”71
stressed the need for courts to impose a “robust causality requirement,”72 and noted that remedies
for discriminatory effect violations “that impose racial targets or quotas might raise [] difficult
constitutional questions.”73

61 Implementation of the FHA’s Discriminatory Effects Standard, 78 Fed. Reg. 11460 (Feb. 15, 2013) (to be codified at
24 C.F.R. pt. 100).
62 HUD’s Implementation of the FHA’s Disparate Impact Standard, 85 Fed. Reg. 60288 (Sept. 24, 2020) (to be codified
at 24 C.F.R. pt. 100).
63 Reinstatement of HUD’s Discriminatory Effects Standard, 88 Fed. Reg. 19450-19500 (Mar. 31, 2023) (to be codified
at 24 C.F.R. pt. 100).
64 Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmties. Project, Inc.576 U.S. 519 (2015).
65 See Smith, 544 U.S. at 235–38.
66 Implementation of the FHA’s Discriminatory Effects Standard, 78 Fed. Reg. 11460 (Feb. 15, 2013) (to be codified at
24 C.F.R. pt. 100).
67 Am. Ins. Assoc., 74 F. Supp. 3d at 32 (interpreting the FHA as only prohibiting intentional discrimination, not
discriminatory effects, and vacating HUD’s 2013 rule), vacated by Am. Ins. Assoc. v. HUD, No. 14-5321, 2015 WL
14038463 (D.C. Cir. Sept. 23, 2015) (per curiam).
68 576 U.S. 519 (2015).
69 Id. at 545.
70 Id. at 531–45.
71 Id. at 521.
72 Id. at 542.
73 Id. at 545.
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To support its interpretation of the FHA, the Court began its analysis with two prior cases: Smith74
and Griggs v. Duke Power Co.,75 which the Court described as providing “essential background
and instruction in the case now before the Court.”76 In Smith and Griggs, the Court interpreted the
ADEA and Title VII of the Civil Rights Act of 1964, respectively, as permitting discriminatory
effect claims. The Court reasoned that both statutes contain language that focuses not just on the
intent or motivation of employers but also on the discriminatory consequences or effects of their
actions.77 Similar to the ADEA and Title VII, FHA Section 804(a) makes it unlawful to “refuse to
sell or rent . . . or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or
deny, a dwelling to any person because of race, color, religion, sex, familial status, or national
origin.”78 The Court stated that “the logic of Griggs and Smith provides strong support for the
conclusion that the FHA encompasses discriminatory effect claims . . . [because] Congress’ use of
the phrase ‘otherwise make unavailable’ refers to the consequences of an action rather than the
actor’s intent.”79
The Court added that this conclusion is bolstered by the fact that Congress amended the FHA in
1988 to establish three exemptions to discriminatory effect liability without making any changes
to the statutory language that previous courts had relied upon to conclude that discriminatory
effect claims were cognizable under the Act. “In short, the 1988 amendments signal that Congress
ratified disparate-impact liability.”80
After concluding that the FHA supports discriminatory effect claims, the Court provided guidance
on how discriminatory effect claims should be assessed. The Court made clear that, before a
plaintiff can establish a prima facie case of discriminatory effect based on a statistical disparity,
courts should apply a “robust causality requirement” that requires the plaintiff to prove that a
policy or decision led to the disparity.81 The Court stressed that a careful examination of the
plaintiff’s causality evidence should be made at preliminary stages of litigation to avoid “the
inject[ion of] racial considerations into every housing decision;” the erection of “numerical
quotas” and similar constitutionally dubious outcomes; the imposition of liability on defendants
for disparities that they did not cause; and unnecessarily protracted litigation that might dissuade
the development of housing for the poor, which would “undermine [the FHA’s] purpose as well as
the free-market system.”82
The Court emphasized that discriminatory effect claims should be further limited by ensuring that
defendants, whether private developers or governmental actors, have the ability to counter a
prima facie case with evidence that the policy or decision in question is “necessary to achieve a
valid interest.”83 Further, the Court indicated that such policies should stand unless the “plaintiff
has shown that there is an available alternative . . . practice that has less disparate impact and
serves the [defendant’s] legitimate needs.”84 The Court explained that the “cautionary standards”

74 554 U.S. 228 (2005) (plurality opinion).
75 401 U.S. 424 (1971).
76 Inclusive Cmties., 576 U.S. at 532.
77 Id.
78 Id. at 533 (emphasis added) (quoting 42 U.S.C. § 3604(a)).
79 Id.
80 Id. at 538.
81 Id. at 542.
82 Id. at 544.
83 Id. at 541.
84 Id. at 533 (citation omitted). The Court did not expressly state that, in the FHA context, the burden at step three
(continued...)
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articulated in Inclusive Communities are intended to ensure that “disparate-impact liability [does
not] displace valid governmental and private priorities, rather than solely ‘remov[ing] . . .
artificial, arbitrary, and unnecessary barriers.’”85
Shortly after the Supreme Court’s Inclusive Communities decision, the U.S. Court of Appeals for
the D.C. Circuit vacated the district court’s decision that had vacated HUD’s 2013 discriminatory
effect regulations and remanded proceedings for reconsideration in accordance with Inclusive
Communities.86
Subsequently, HUD, under the Trump Administration, began a rulemaking process to modify the
2013 discriminatory effect rule “to better reflect the Supreme Court’s 2015 [Inclusive
Communities] ruling.”87 This process culminated in a final rule issued in September 2020 that
would have significantly altered the 2013 rule by, among other things, imposing new pleading
requirements on plaintiffs to maintain a prima facie discriminatory effect claim and establishing
new defenses that a defendant could use to rebut discriminatory effect claims.88 Shortly after the
rule’s issuance, however, housing advocates filed a lawsuit in federal district court alleging that
the 2020 rule should be set aside because it was an arbitrary and capricious interpretation of the
law in violation of the Administrative Procedure Act.89 Before the 2020 rule went into effect, the
district court issued a preliminary injunction prohibiting HUD from implementing and enforcing
that rule, which had the effect of keeping the 2013 rule in place.90
The district court explained that the 2020 rule constituted a “massive overhaul” of the 2013 rule
by “introducing new, onerous pleading requirements,” “easing the burden on defendants of
justifying a policy with discriminatory effect while at the same time rendering it more difficult for
plaintiffs to rebut that justification,” and “arm[ing] defendants with broad new defenses.”91 In the
court’s view, these alterations “weaken[ed], for housing discrimination victims and fair housing
organizations, disparate impact liability under the Fair Housing Act.”92 HUD argued that these
changes were justified because they brought the rule into alignment with Inclusive Communities
and provided “greater clarity to the public.”93 The court concluded that these major changes,
which ran “the risk of effectively neutering disparate impact liability under the Fair Housing Act,
appear[ed] inadequately justified” and “accomplish[ed] the opposite of clarity.”94 Consequently,
the court held that the plaintiffs demonstrated “a substantial likelihood of success on the merits as
to their claim that the 2020 Rule [wa]s arbitrary and capricious” under the Administrative
Procedure Act.95

should be on the plaintiff to prove the existence of a less discriminatory alternative. Instead, it stated that the plaintiff
carries the burden of the third step in the burden-shifting tests applied in Title VII and ADEA cases and that the “cases
interpreting Title VII and the ADEA provide essential background and instruction in the case now before the Court.”
Id.
85 Id. at 539 (quoting Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971)),
86 Am. Ins. Assoc. v. HUD, No. 14-5321, 2015 WL 14038463 (D.C. Cir. Sept. 23, 2015) (per curiam).
87 HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard, 85 Fed. Reg. 60288 (Sept. 24, 2020)
(to be codified at 24 C.F.R. pt. 100).
88 Id.
89 Mass. Fair Hous. Ctr. v. HUD, 496 F. Supp. 3d 600, 603 (D. Mass. 2020).
90 Id. at 612.
91 Id. at 606–08.
92 Id. at 606.
93 Id. at 610.
94 Id. at 611.
95 Id.
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Within his first month of taking office, President Biden issued a memorandum directing HUD to
“take all steps necessary to examine the effects” of the 2020 rule.96 HUD responded to this
presidential directive by voluntarily dismissing its appeal of the federal district court’s
injunction97 and proposing a regulation that would recodify the 2013 rule and effectively rescind
the 2020 rule.98 In the proposed rule issued on June 25, 2021, HUD expressed its belief “that the
practical effect of the 2020 Rule’s amendments” was “to severely limit HUD’s and plaintiffs’ use
of the discriminatory effects framework in ways that substantially diminish[ed] that framework’s
effectiveness in accomplishing the purposes that Inclusive Communities articulated.”99 HUD
further explained that “the 2013 Rule has provided a workable and balanced framework for
investigating and litigating discriminatory effects claims that is consistent with the Act, HUD’s
own guidance, Inclusive Communities, and other jurisprudence.”100
In March 2023, HUD issued a final rule reinstating the 2013 rule.101
Disparate Impact Three-Step Burden-Shifting Test
As described above, to support a prima facie disparate impact claim under the FHA, a plaintiff, at
step one, must prove that a challenged, facially neutral housing policy caused or will predictably
cause a disparate effect on a protected class.102 According to the Supreme Court’s Inclusive
Communities decision, disparate impact claims must identify a generally applicable policy—not a
one-time, individual decision or action103—that imposes “artificial, arbitrary, and unnecessary
barriers.”104 Such challenged policies can be implemented by either governmental or private
parties.105
A disparate impact claim must generally be supported by statistical evidence and documentation
showing that the policy in question caused or will predictably cause the statistical disparity on the
individuals in a protected class as compared to similarly situated members of a nonprotected
class.106 The statistics must show not only how a subset of a protected class was negatively
affected by the challenged policy but also how other “appropriate comparison groups” were

96 Memorandum of Jan. 26, 2021, Redressing Our Nation’s and the Federal Government’s History of Discriminatory
Housing Practices and Policies, 86 Fed. Reg. 7487 (Jan. 29, 2021).
97 Judgment, Mass. Fair Hous. Ctr. v. HUD, No 21-1003 (1st Cir. Feb. 18, 2021) (unpublished order).
98 Reinstatement of HUD’s Discriminatory Effects Standard, 86 Fed. Reg. 33590 (June 25, 2021).
99 Id. at 33594.
100 Id.
101 Reinstatement of HUD’s Discriminatory Effects Standard, 88 Fed. Reg. 19450-19500 (Mar. 31, 2023) (to be
codified at 24 C.F.R. pt. 100).
102 24 C.F.R. § 100.500(a), (c)(1); Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmties. Project, Inc., 576 U.S. 519,
537 (2015).
103 Inclusive Cmties., 576 U.S. at 538 (“A plaintiff who fails to allege facts at the pleading stage or produce statistical
evidence demonstrating a causal connection cannot make out a prima facie case of disparate impact. For instance, a
plaintiff challenging the decision of a private developer to construct a new building in one location rather than another
will not easily be able to show this is a policy causing a disparate impact because such a one-time decision may not be
a policy at all.”) (emphasis added); see also Nadiyah J. Humber, A Home for Digital Equity: Algorithmic Redlining and
Property Technology, 111 CAL. L. REV. 1421 (2023); Robert G. Schwemm and Calvin Bradford, Proving Disparate
Impact in Fair Housing Cases after Inclusive Communities, 19 Legis. & Pub. Pol’y 685, 693 (2016).
104 Inclusive Cmties., 576 U.S. at 538 (quoting Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971)).
105 Id.
106 24 C.F.R. § 100.500(a); Inclusive Cmties., 576 U.S. at 544.
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relatively less impacted by the policy.107 Additionally, courts require that the statistical disparities
be “significant,”108 although they have not established a bright-line rule for how large the
disparity must be.109
If the plaintiff meets her burden at step one, then the burden shifts to the defendant at step two to
prove that the challenged policy “is necessary to achieve a valid interest.”110 If the defendant
meets its burden at step two, a plaintiff can still prevail by showing at step three that the
defendant’s valid interest “could be served by another practice that has a less discriminatory
effect.”111
Segregative Effect Three-Step Burden-Shifting Test
HUD’s regulations define a discriminatory segregative effect as a housing policy or practice that
“actually or predictably . . . creates, increases, reinforces, or perpetuates segregated housing
patterns because of race, color, religion, sex, handicap, familial status, or national origin.”112 In
developing this definition, HUD looked to more than a dozen federal courts of appeals
decisions,113 determining that “every federal court of appeals to have addressed the issue has
agreed with HUD’s interpretation that the Act prohibits practices with the unjustified effect of
perpetuating segregation.”114
To make a prima facie case of a segregative effect, a plaintiff must show, at step one, that a
challenged housing policy or decision actually or predictably will create or exacerbate
segregation.115 Like a disparate impact claim, the plaintiff must generally rely on statistical
evidence that shows that the housing practice or decision substantially caused or exacerbated
segregation.116 As a result, “most perpetuation-of-segregation claims have been made against
municipal defendants accused of blocking integrated housing developments in predominantly
white areas.”117 Thus, the statistical disparity involves a relative comparison of integration in a

107 Tsombanidis v. West Haven Fire Dep’t, 352 F.3d 565, 576–77 (2d Cir. 2003) (“Whether using statistics or some
other analytical method, plaintiffs must also utilize the appropriate comparison groups. They must first identify
members of a protected group that are affected by the neutral policy and then identify similarly situated persons who
are unaffected by the policy.”); see also Schwemm & Bradford, supra note 103, at 698.
108 Schwemm & Bradford, supra note 103, at 699 (quoting Tsombanidis, 352 F.3d at 576).
109 Id. at 699–700, 706–07.
110 Inclusive Cmties., 576 U.S. at 537; see also 24 C.F.R. § 100.500(c)(2) (“[T]he respondent or defendant has the
burden of proving that the challenged practice is necessary to achieve one or more substantial, legitimate,
nondiscriminatory interests of the respondent or defendant.”). This valid interest standard is the housing equivalent to
the “business necessity” standard under Title VII employment discrimination claims. Inclusive Cmties., 576 U.S. at
537.
111 24 C.F.R. § 100.500(c)(3); see also Inclusive Cmties., 576 U.S. at 533 (housing policies should stand unless the
“plaintiff has shown that there is an available alternative . . . practice that has less disparate impact and serves the
[entity’s] legitimate needs.”).
112 24 C.F.R. § 100.500(a).
113 Implementation of the FHA’s Discriminatory Effects Standard, 78 Fed. Reg. 11460, 11468 (Feb. 15, 2013) (to be
codified at 24 C.F.R. pt. 100); see also Schwemm & Bradford, supra note 103, at 691 (“The Supreme Court’s 2015
decision in Inclusive Communities endorsed FHA disparate-impact claims, but did not deal with—indeed, barely
mentioned—the segregative-effect theory. . . . This is not to say that segregative-effect claims are now on shaky
ground. To the contrary, based on the 2013 HUD regulation and Inclusive Communities’ recognition that the FHA is
designed to foster integration, such claims have a strong foundation” (internal citations omitted)).
114 Implementation of the FHA’s Discriminatory Effects Standard, 78 Fed. Reg. at 11468.
115 24 C.F.R. § 100.500(c)(1).
116 Humber, supra note 103, at 1468–69.
117 Schwemm & Bradford, supra note 103, at 691.
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particular geographic area. In contrast to disparate impact claims, segregative effect claims can
hinge on one-time decisions in addition to broad-based policies.118
Steps two and three of the burden-shifting test applicable to segregative effect claims are the
same as those applicable to disparate impact claims. If the plaintiff meets her burden at step one,
then the burden shifts to the defendant at step two to prove that the challenged policy or decision
“is necessary to achieve a valid interest.”119 If the defendant meets its burden at step two, a
plaintiff can still prevail by showing at step three that the defendant’s valid interest “could be
served by another practice that has a less discriminatory effect.”120
Affirmatively Furthering Fair Housing Standards
In addition to prohibiting discrimination, the FHA imposes a broad mandate on HUD and all
other federal “executive departments and agencies [to] administer their programs and activities
relating to housing and urban development . . . in a manner affirmatively to further the purposes
of” the FHA.121 The statute does not elaborate more on this mandate, which is known as
affirmatively furthering fair housing (AFFH). Various court decisions involving HUD’s
obligations under the mandate have concluded that it means more than refraining from
discrimination.122 A 1987 federal appellate court decision examined the FHA’s legislative history
and concluded that the “law’s supporters saw the ending of discrimination as a means toward
truly opening the nation’s housing stock to persons of every race and creed.”123 With that goal in
mind, the court stated, “This broader goal suggests an intent that HUD do more than simply not
discriminate itself; it reflects the desire to have HUD use its grant programs to assist in ending
discrimination and segregation, to the point where the supply of genuinely open housing
increases.”124
HUD has applied the AFFH requirement to states and localities that receive certain HUD grant
funds (state and local grantees) and public housing authorities (collectively called program
participants), first through program guidance and then through regulations. The Obama, Trump,

118 Id.; see, e.g., United States v. City of Black Jack, 508 F.2d. 1179, 1186 (8th Cir. 1974) (“There was ample proof that
many blacks would live in the development, and that the exclusion of the townhouses would contribute to the
perpetuation of segregation in a community which was 99 percent white.”); Trafficante v. Metro. Life Ins. Co., 409
U.S. 205, 209–10 (1972) (“[T]he alleged injury to existing tenants by exclusion of minority persons from the apartment
complex is the loss of important benefits from interracial associations.”).
119 Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmties. Project, Inc.576 U.S. 519, 537 (2015); see also 24 C.F.R. §
100.500(c)(2) (“the respondent or defendant has the burden of proving that the challenged practice is necessary to
achieve one or more substantial, legitimate, nondiscriminatory interests of the respondent or defendant.”). This valid
interest standard is the housing-equivalent to the “business necessity” standard under Title VII employment
discrimination claims. Inclusive Cmties., 576 U.S. at 537.
120 24 C.F.R. § 100.500(c)(3); see also Inclusive Cmties., 576 U.S. at 533 (housing policies should stand unless the
“plaintiff has shown that there is an available alternative . . . practice that has less disparate impact and serves the
[defendant’s] legitimate needs.”).
121 42 U.S.C. § 3608(d).
122 See, e.g., NAACP v. Sec’y of Hous. & Urban Dev., 817 F.2d 149, 155 (1st Cir. 1987) (“Finally, every court that has
considered the question has held or stated that Title VIII imposes upon HUD an obligation to do more than simply
refrain from discriminating (and from purposefully aiding discrimination by others).”); Nat’l Fair Hous. Alliance v.
Carson, 330 F. Supp. 3d 14, 25 (D.D.C. 2015) (stating the same).
123 NAACP, 817 F.2d at 155.
124 Id.
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and Biden Administrations have implemented the mandate differently. AFFH rules have been
controversial, and in past Congresses, legislation has been introduced to curb their application.125
The Obama Administration issued the first AFFH regulations in 2015 (2015 Rule).126 The 2015
Rule defined AFFH as “taking meaningful actions that, taken together, address significant
disparities in housing needs and in access to opportunity, replacing segregated living patterns with
truly integrated and balanced living patterns, transforming racially and ethnically concentrated
areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil
rights and fair housing laws.”127 Under the 2015 Rule, HUD program participants were required
to file reports on their local communities’ fair housing needs to HUD.128 These reports, called
Assessments of Fair Housing, required a review of housing-related data received by HUD and
responses to around 100 questions developed by HUD, as well as the assessment of
approximately forty contributing factors for every fair-housing-related concern identified by a
program participant.129
In May 2018 during the Trump Administration, HUD suspended implementation of the 2015 Rule
and in August 2020 issued a new final rule (2020 Rule) that repealed and replaced the 2015
Rule.130 The 2020 Rule, which went into effect on September 8, 2020, cited concerns including,
among others, the 2015 Rule’s complexity, compliance and implementation costs to program
participants and HUD, and federalization of local housing decisionmaking.131 The 2020 Rule
redefined AFFH as “tak[ing] any action rationally related to promoting any attribute or attributes
of fair housing.”132 The 2020 Rule required state and local grantees to certify that they satisfied
the AFFH requirement, which HUD would accept “if the grantee has taken some active step to
promote fair housing.”133 The rule did not require certifications from public housing authorities.
In January 2021, President Biden issued a presidential memorandum to HUD, directing the
agency to “take all steps necessary to examine the effects of the [2020 Rule] . . . including the
effect that repealing [the 2015 Rule] has had on HUD’s statutory duty to affirmatively further fair
housing.”134 In response, HUD published an interim final rule in June 2021 (2021 Interim Final
Rule) that rescinded the 2020 Rule and reinstated certain aspects of the 2015 Rule, including its
definition of AFFH.135

125 For example, in the 114th Congress, the Local Zoning Decisions Protection Act of 2015 (S. 1909) would have
prohibited federal funds from being used to administer, implement, or enforce the AFFH rule. (Similar versions were
introduced in the 115th Congress.) In the 115th Congress, the Restoring Fair Housing Protections Eliminated by HUD
Act of 2018 (H.R. 6220) would have reinstated the Obama Administration AFFH rule. In the 116th Congress, the
Economic Justice Act (S. 5065) would have repealed the Trump Administration rule.
126 Affirmatively Furthering Fair Housing, 80 Fed. Reg. 42353 (July 16, 2015) (to be codified in scattered sections of
24 C.F.R.).
127 Id. at 42353.
128 Id. at 42355–56.
129 Affirmatively Furthering Fair Housing, 88 Fed. Reg. 8516, 8518 (Feb. 9, 2023) (to be codified in scattered sections
of 24 C.F.R.).
130 Preserving Community and Neighborhood Choice, 85 Fed. Reg. 47899 (Aug. 7, 2020) (to be codified in scattered
sections of 24 C.F.R.).
131 Id. at 47900–01.
132 Id. at 47905.
133 Id. at 47902.
134 Memorandum of Jan. 26, 2021, Redressing Our Nation’s and the Federal Government’s History of Discriminatory
Housing Practices and Policies, 86 Fed. Reg. 7487 (Jan. 29, 2021).
135 Restoring Affirmatively Furthering Fair Housing Definitions and Certifications, 86 Fed. Reg. 30779, 30783 (Jun.
10, 2021).
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In January 2023, HUD issued a proposed rule that would replace the 2021 Interim Final Rule and
reinstate additional aspects of the 2015 Rule while establishing a compliance process intended to
be less onerous for program participants.136
Selected Types of Housing Discrimination
This section addresses several different types of discrimination that have been the source of a
significant number of legal disputes or otherwise raise complex legal issues under the FHA.
Discrimination Based on Sex, Sexual Orientation, and Gender
Identity
The FHA prohibits discrimination based on an individual’s sex but does not expressly bar
discrimination on the basis of sexual orientation or gender identity. However, citing a Supreme
Court ruling involving an analogous anti-discrimination statute, HUD has interpreted the Act’s
sex-based protections as encompassing sexual orientation and gender identity.137
In the 2020 opinion Bostock v. Clayton County, the Supreme Court ruled that Title VII of the
Civil Rights Act of 1964’s prohibition against sex-based discrimination in the workplace
encompasses discrimination because an individual is gay or transgender.138 The Bostock Court
explained that “homosexuality and transgender status are inextricably bound up with sex. . . [so]
to discriminate on these grounds requires an employer to intentionally treat individual employees
differently because of their sex.”139 As a result, the Court concluded that “it is impossible to
discriminate against a person for being homosexual or transgender without discriminating against
that individual based on sex.”140 Thus, the Court held that Title VII’s sex-based protections make
it unlawful to discriminate on the basis of sexual orientation or gender identity in the
workplace.141
In response to Bostock, President Biden issued Executive Order 13,988 concluding that laws that
prohibit sex-based discrimination, expressly including the FHA, also “prohibit discrimination on
the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient
indications to the contrary.”142 The executive order further directed HUD and other relevant
federal agencies to take administrative action to implement this policy.143
In accordance with E.O. 13,988, HUD issued a legal memorandum stating that the FHA’s
proscription on sex discrimination is “nearly identical” to Title VII’s.144 The memorandum

136 Affirmatively Furthering Fair Housing, 88 Fed. Reg. 8516, 8517 (Feb. 9, 2023) (to be codified in scattered sections
of 24 C.F.R.).
137 See Memorandum from Damon Y. Smith, HUD Principal Deputy Gen. Couns., to Jeanine M. Worden, HUD Acting
Assistant Sec’y for Fair Hous. 1 (Feb. 9, 2021), https://www.hud.gov/sites/dfiles/ENF/documents/
Bostock%20Legal%20Memorandum%2002-09-2021.pdf.
138 590 U.S. 644 (2020); see also CRS Report R46832, Potential Application of Bostock v. Clayton County to Other
Civil Rights Statutes, by Christine J. Back and Jared P. Cole.
139 Id. at 660–61.
140 Id. at 660.
141 Id. at 669–71.
142 Preventing and Combatting Discrimination on the Basis of Gender Identity or Sexual Orientation, 86 Fed. Reg. 7023
(Jan. 25, 2021).
143 Id. at 7023–24.
144 Supra note 137.
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continues that “[n]othing in the Fair Housing Act’s text, purposes, or precedent suggests that sex
discrimination under the Act should be construed more narrowly than under Title VII with respect
to discrimination because of gender identity or sexual orientation.”145 Consequently, HUD will
enforce the FHA’s protections against sex-based discrimination as covering discrimination on the
basis of sexual orientation or gender identity, consistent with Bostock and E.O. 13,988.146
Discrimination Based on Disability147
The FHA also prohibits discrimination in housing on the basis of disability. The Act defines the
term as “(1) a physical or mental impairment which substantially limits one or more of such
person’s major life activities, (2) a record of having such an impairment, or (3) being regarded as
having such an impairment.”148 The definition expressly excludes the current illegal use of or
addiction to a controlled substance.149 However, because this exclusion does not apply to former
drug users, the Act’s proscription against disability discrimination encompasses individuals who
have had drug or alcohol problems that are severe enough to substantially impair a major life
activity but who are not current illegal users or addicts. As a result, recovering alcoholics and
drug addicts can fall within the FHA’s protections.150
The FHA makes it unlawful to ask about the disabilities of an applicant for housing or someone
with whom the applicant is associated. However, FHA regulations allow raising certain questions
that may have some bearing on one’s disability so long as those questions are posed to all
applicants. For example, all applicants could be asked whether they would be able to mow their
lawns if required in a rental agreement.151
Reasonable Modifications
Disability-based discrimination under the FHA includes prohibiting disabled individuals to make
reasonable modifications to a housing unit that will “afford [them] full enjoyment of the
premises.”152 For example, a landlord must generally allow a disabled tenant to install grab bars
in a bathroom at the tenant’s expense. However, a landlord can premise the changes on the
tenant’s promise to return the unit to its original state upon ending the tenancy. A landlord may
not increase a required security deposit to cover these changes but can require tenants to, in

145 Id. at 2.
146 Id. Approximately thirty states, the District of Columbia, and numerous localities have also implemented housing
discrimination laws that prohibit discrimination on the basis of sexual orientation and gender identity, either expressly
or through sex-based discrimination restrictions. See Non-Discrimination Laws: Housing, MOVEMENT ADVANCEMENT
PROJECT (Apr. 26, 2024), http://www.lgbtmap.org/equality-maps/non_discrimination_laws.
147 The FHA uses the term “handicapped.” This report uses the term disability interchangeably with handicap.
148 42 U.S.C. § 3602(h). The FHA’s disability protections do not require “that a dwelling be made available to an
individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy
would result in substantial physical damage to the property of others.” Id. § 3604(f)(9).
149 Id. § 3602(h). The regulations also state that “an individual shall not be considered to have a handicap solely
because that individual is a transvestite.” 24 C.F.R. § 100.201.
150 See, e.g., Oxford House-C v. City of St. Louis, 77 F.3d 249, 251 (8th Cir. 1996).
151 24 C.F.R. § 100.202(c). The regulations include the following examples of permissible questions: “(1) Inquiry into
an applicant’s ability to meet the requirements of ownership or tenancy, (2) Inquiry to determine whether an applicant
is qualified for a dwelling available only to persons with handicaps . . . [and] (4) Inquiring whether an applicant for a
dwelling is a current illegal abuser or addict of a controlled substance.” Id.
152 42 U.S.C. § 3604(f)(3)(A).
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certain circumstances, make payments into an escrow account to cover restoration costs.153 The
landlord can require the tenant to remove the grab bars at the tenancy’s end without running afoul
of the FHA’s reasonable modification mandate, but the Act would prohibit a landlord from
requiring a tenant to remove any necessary in-wall blocking that was installed to support the grab
bars because the blocking “will not interfere in any way with the landlord’s or the next tenant’s
use and enjoyment of the premises and may be needed by some future tenant.”154
In addition, all “covered multifamily dwellings”155 built after March 13, 1991, must meet certain
design and construction specifications that ensure they are readily accessible to and usable by
individuals with disabilities.156
Reasonable Accommodations and Assistance Animals
The FHA also prohibits landlords from “refus[ing] to make reasonable accommodations in rules,
policies, practices, or services, when such accommodations may be necessary to afford [a
disabled individual] equal opportunity to use and enjoy [the] dwelling.”157 A common reasonable
accommodation required by the Act is for housing providers to set aside parking spaces for
individuals with disabilities as an exception to the normal policy of providing parking on a first-
come, first-served basis.158 Housing providers must also generally provide reasonable
accommodations from standard pet policies for assistance and support animals.159 HUD defines
support animals as “service [and] other animals that do work, perform tasks, provide assistance,
and/or provide therapeutic emotional support for individuals with disabilities.”160 A housing
provider must, for example, provide a tenant with a legitimate disability-related need an
accommodation from a building’s general pet size or breed restriction upon the tenant’s
request.161 The housing provider can, however, deny such an accommodation request if it would
(1) be an undue administrative or financial burden, (2) pose a direct threat to safety or health, or
(3) result in a significant property damage that could not be reduced by other reasonable
accommodations.162

153 24 C.F.R. § 100.203(a). Payments required to be made into escrow must be reasonable and must be for no more than
restoration costs. Id.
154 Id. § 100.203(c).
155 Covered multifamily dwellings have four or more living units. 24 C.F.R. § 100.201.
156 42 U.S.C. § 3604(f)(3)(C). In 1991, HUD published final Fair Housing Accessibility Guidelines to provide builders
and developers with technical guidance for these accessibility requirements. Final Fair Housing Accessibility
Guidelines, 56 Fed. Reg. 9472 (Mar. 6, 1991) (to be codified in 24 C.F.R ch. 1). HUD supplemented these guidelines in
1994. Supplement to Notice of Fair Housing Accessibility Guidelines: Questions and Answers About the Guidelines,
59 Fed. Reg. 33362 (June 28, 1994) (to be codified in 24 C.F.R ch. 1).
157 42 U.S.C. § 3604(f)(3)(B).
158 24 C.F.R. § 100.204(b).
159 OFF. OF FAIR HOUS. & EQUAL OPPORTUNITY, HUD, FHEO-2020-01, ASSESSING A PERSON’S REQUEST TO HAVE AN
ANIMAL AS A REASONABLE ACCOMMODATION UNDER THE FAIR HOUSING ACT 3 (2020) (defining support animals to
mean “trained or untrained animals that do work, perform tasks, provide assistance, and/or provide therapeutic
emotional support for individuals with disabilities”); see also 24 C.F.R. § 5.303(a).
160 Id. at 3.
161 Id. at 14.
162 Id. at 13–15.
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The FHA’s Accessibility Standards and Their Intersection with Other Federal
Disability Laws
The FHA requires that certain multifamily housing properties built after March 13, 1991, meet
specified design and construction accessibility standards for individuals with disabilities.163
Constructing covered properties in violation of these accessibility standards constitutes unlawful
disability discrimination under the FHA.164
Several other federal laws also regulate building accessibility standards on various types of
properties, such as places of public accommodations; properties used by entities receiving federal
financial assistance; and properties that are designed, constructed, or rehabilitated using federal
funds. These other federal laws—including the Americans with Disabilities Act (ADA), Section
504 of the Rehabilitation Act of 1973, and the Architectural Barriers Act of 1968—are generally
not focused on housing, but their applicability often intersects or overlaps in some ways with
FHA-covered housing. Properties can, and often are, subject to multiple such laws.165
For example, the ADA broadly prohibits discrimination against individuals with disabilities but
generally does not apply to permanent housing.166 However, the ADA does cover public
accommodations, which include various types of transient housing, such as “an inn, hotel, motel,
or other place of lodging.”167 Additionally, the ADA covers “commercial facilities,” which it
defines as “facilities intended for nonresidential use . . . whose operations will affect
commerce,”168 but the term excludes “facilities that are covered or expressly exempted from
coverage under the Fair Housing Act.”169
Section 504 of the Rehabilitation Act of 1973 bars discrimination against individuals with
disabilities in any federally funded or federally conducted program or activity, which can include
housing-related programs.170 HUD’s Section 504 regulations impose accessibility and design
standards, called the Uniform Federal Accessibility Standards, that are more stringent than those
required under the FHA.171 Under the Architectural Barriers Act of 1968 (ABA), certain publicly
owned buildings and facilities that are designed, built, or modified using federal funds must be

163 42 U.S.C. § 3604(f)(3)(C); 24 C.F.R. § 100.205; see also HUD, FAIR HOUSING ACT DESIGN MANUAL (1998).
164 42 U.S.C. § 3604(f)(3)(C).
165 See generally Off. of Fair Hous. & Equal Opportunity, Physical Accessibility, HUD, https://www.hud.gov/
program_offices/fair_housing_equal_opp/physical_accessibility (last visited Apr. 27, 2024).
166 42 U.S.C. §§ 12101–12213.
167 Id. § 12181(2)(A). The ADA excludes from the definition of public accommodations “an establishment located
within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor
of such establishment as the residence of such proprietor.” Id.
168 Id. § 12181(2)(A)(2).
169 Id. The Department of Justice’s comments on its ADA rules address mixed use facilities, such as hotels that also
have separate accommodations for apartments. The comments explain that the residential wing would be covered by
the FHA even though the rest of the hotel would be covered by the ADA. However:
[i]f a hotel allows both residential and short-term stays, but does not allocate space for these
different uses in separate, discrete units, both the ADA and the Fair Housing Act may apply to the
facility. Such determinations will need to be made on a case-by-case basis. . . . A similar analysis
would also be applied to other residential facilities that provide social services, including homeless
shelters, shelters for people seeking refuge from domestic violence, nursing homes, residential care
facilities, and other facilities where persons may reside for varying lengths of time.
Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilitates, 56 Fed. Reg.
35552 (July 26, 1991).
170 29 U.S.C. § 794(a).
171 24 C.F.R. § 8.32.
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accessible to individuals with physical disabilities.172 Four different agencies—the General
Services Administration (GSA), the Department of Defense (DOD), United States Postal Service
(USPS), and HUD—implement the ABA. ABA-covered properties within HUD’s jurisdiction
must comply with the Uniform Federal Accessibility Standards.173 ABA-covered properties
within the jurisdictions of the other three agencies must comply with accessibility standards
developed by the U.S. Access Board.174
Group Homes and Zoning Restrictions
The FHA protects group homes for people with disabilities from discrimination by certain types
of state or local zoning laws. While the FHA does not “limit[] the applicability of any reasonable
local, State, or Federal restrictions regarding the maximum number of occupants permitted to
occupy a dwelling,”175 it does generally prohibit “[l]ocal zoning and land use laws that treat
groups of unrelated persons with disabilities less favorably than similar groups of unrelated
persons without disabilities.”176
Nevertheless, some municipalities have attempted to restrict the location of group homes for
individuals with disabilities by enacting zoning ordinances that establish occupancy limits.177
Such occupancy limits, which are typically justified as a way to maintain the residential character
of certain neighborhoods, can operate to restrict group homes for recovering drug addicts and
alcoholics in violation of the FHA. Localities could also violate the reasonable accommodation
requirement of the Act by refusing to provide a variance from an occupancy ordinance to a group
home.178 As a result, these limits are the subject of controversy and legal challenges under the
FHA,179 and the Department of Justice (DOJ) and HUD have issued joint guidance on the issue.180
Determining whether zoning ordinances violate the FHA requires a case-by-case assessment
based on the ordinance language and the specific facts surrounding the alleged violation.181 The
ad-hoc, fact-specific nature of these disputes makes it difficult to predict how a court would rule
on a particular matter.

172 42 U.S.C. §§ 4151–4157.
173 24 C.F.R. § 570.614(a).
174 41 C.F.R. pt. 102-76 (2023) (GSA); Memorandum from the Deputy Sec’y of Def. to the Sec’ys of the Mil. Dep’ts,
et al. (Oct. 31, 2008), https://www.wbdg.org/FFC/DOD/dod_memo_aba.pdf (DOD); 39 C.F.R. pt. 254 (2023) (USPS).
175 42 U.S.C. § 3607(b)(1).
176 Press Release, U.S. Dep’t of Just. & U.S. Dep’t of Hous. & Urban Dev., Joint Statement of the Department of
Justice and the Department of Housing and Urban Development: Group Homes, Local Land Use, and the Fair Housing
Act (Aug. 18, 1999), https://www.justice.gov/crt/joint-statement-department-justice-and-department-housing-and-
urban-development [hereinafter Joint Statement].
177 Discrimination against group homes for the disabled is prohibited not only by the FHA but also by the Constitution
to the extent that such discrimination is found to be irrational. In City of Cleburne v. Cleburne Living Center, 473 U.S.
432 (1985), the Supreme Court held unconstitutional a zoning ordinance that allowed group homes generally but
prohibited them for mentally disabled individuals. The basis for the decision was that the ordinance was based on
irrational prejudice; that is, the discrimination failed a “rational basis” test under the Equal Protection Clause of the
Fourteenth Amendment. Id. at 446.
178 A city could be subject to a discriminatory effect discrimination claim based on all of its denials for variances. For
more information on discriminatory effect analysis, see the “Discriminatory Effects” section of this report.
179 See Michael J. Davis, Protecting Group Homes for the Non-Handicapped: Zoning in the Post-Edmonds Era,
46 KAN. L. REV. 777, 809–14 (1998).
180 Joint Statement, supra note 176.
181 See id.
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Zoning ordinances that limit the number of group homes that can be located within a certain
proximity of each other, commonly referred to as density restrictions, can also run afoul of the
FHA. In their group home guidance, HUD and DOJ “take the position, and most courts that have
addressed the issue agree, that density restrictions are generally inconsistent with the Fair
Housing Act.”182 For example, the Sixth Circuit, in Larkin v. Michigan Department of Social
Services, addressed a state licensing requirement that group homes for the disabled could not be
spaced within a 1,500-foot radius of other such group homes and had to comply with public
notice requirements.183 The court ruled that these spacing and notification requirements
discriminated on their face by “singl[ing] out for regulation group homes for the [disabled].”184
Once the court ruled that these non-uniform conditions were facially discriminatory, the court,
consistent with the intentional discrimination test applied by the majority of federal courts of
appeals discussed in the “Disparate Treatment/Intentional Discrimination” section above, required
the defendant to demonstrate that spacing and notification requirements “are warranted by the
unique and specific needs and abilities of those [disabled] persons to whom the regulations
apply.”185 The Sixth Circuit held that the state had failed to meet this burden because the
ordinance “is too broad, and is not tailored to the specific needs” of the disabled.186
The group home joint guidance also addresses claims that localities failed to make “reasonable
accommodations” for group homes:
Whether a particular accommodation is reasonable depends on the facts, and must be
decided on a case-by-case basis. The determination of what is reasonable depends on the
answers to two questions: First, does the request impose an undue burden or expense on
the local government? Second, does the proposed use create a fundamental alteration in the
zoning scheme? If the answer to either question is “yes,” the requested accommodation is
unreasonable.187
For example, it might be unreasonable for a locality to deny a request by a group home for five
individuals with disabilities for a variance from an ordinance that bars five or more unrelated
people from living in a single-family home where it is shown that the group home would “have
no more impact on parking, traffic, noise, utility use, and other typical concerns of zoning than an
‘ordinary family.’”188 In contrast, it would likely not be unreasonable to deny a variance from this
ordinance for a group home intended to house fifty individuals.189
Familial Discrimination and Housing for Older Persons
The Fair Housing Amendments Act of 1988 added familial status to the grounds upon which
housing discrimination is prohibited under the FHA.190 Familial status generally means living
with children under the age of eighteen.191 However, the FHA exempts from this general

182 Id.
183 Larkin v. Mich. Dep’t of Soc. Servs., 89 F.3d 285 (6th Cir. 1996).
184 Id. at 290.
185 Id. (citation omitted). See also Marbrunak, Inc. v. City of Stow, 974 F.2d 45, 47 (6th Cir. 1992).
186 Larkin, 89 F.3d at 292.
187 Joint Statement, supra note 176.
188 Id.
189 Id.
190 Pub. L. No. 100-430, § 5, 102 Stat. 1619 (1988), codified at 42 U.S.C. § 3604, 3606.
191 The statute (42 U.S.C. § 3602(k)) and the regulation (24 C.F.R. § 100.20) both define “familial status” as follows:
“Familial status” means one or more individuals (who have not attained the age of 18 years) being
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proscription “housing for older persons.”192 The committee report that accompanied the 1988
amendments explains the purpose of this exemption:
In many parts of the country families with children are refused housing despite their ability
to pay for it. Although 16 states have recognized this problem and have proscribed this
type of discrimination to a certain extent, many of these state laws are not effective. . . .
The bill specifically exempts housing for older persons. The Committee recognizes that
some older Americans have chosen to live together with fellow senior citizen [sic] in
retirement type communities. The Committee appreciates the interest and expectation these
individuals have in living in environments tailored to their specific needs.193
Housing for older persons is defined as housing that is (1) provided under any state or federal
housing program for the elderly; (2) “intended for and solely occupied by persons 62 years of age
or older;” or (3) “intended and operated for occupancy by persons 55 years of age or older” and
that meets several other requirements, such as having at least 80% of units occupied by a
minimum of one individual fifty-five or older.194
The FHA provides that an individual who believes in good faith that his or her housing facility
qualifies for housing for older persons exemption will not be held liable for money damages for
discriminating on the basis of familial status, even if the facility does not in fact qualify as
“housing for older persons.”195
Enforcement of the FHA
The HUD Secretary, the Attorney General, and victims of discrimination may each take action to
enforce the FHA’s protections against discrimination. HUD has primary administrative
enforcement authority of the Act, which it fulfills through administrative adjudications. However,
DOJ may also bring actions in federal court under certain circumstances.
Enforcement by the HUD Secretary
Within one year of the occurrence or end of an alleged discriminatory housing action, a harmed
party may file a complaint with the HUD Secretary, or the Secretary may file a complaint on her
own initiative. When a complaint is filed, the Secretary must, within ten days, serve the

domiciled with—
(1) a parent or another individual having legal custody of such individual or individuals; or
(2) the designee of such parent or other person having such custody, with the written
permission of such parent or other person.
The protections afforded against discrimination on the basis of familial status shall apply to any person who
is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18
years.
Compare 42 U.S.C. § 3602(k) with 24 C.F.R. § 100.20.
192 42 U.S.C. § 3607(b).
193 H.R. REP. NO. 100-711 at 19, 21 (1988).
194 42 U.S.C. § 3607(b)(2). The remaining requirements for the third category of housing for older persons are that “the
housing facility or community publish[] and adhere[] to policies and procedures that demonstrate the intent required” to
be housing for older persons and that the facility comply with HUD rules for occupancy verification. 42 U.S.C.
§ 3607(b)(2)(C); 24 C.F.R. §§ 100.304–100.307.
195 42 U.S.C. § 3607(b)(5).
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respondent—the party charged with committing a discriminatory practice—with notice of the
complaint. The respondent must then answer the complaint within ten days.196
From the filing of the complaint, the Secretary has 100 days, subject to extension, to complete an
investigation of the alleged discriminatory actions.197 During this time, the Secretary must, “to the
extent feasible, engage in conciliation with respect to” the complaint, and, as warranted, the
Secretary may enter into a conciliation agreement, which can include binding arbitration and the
award of monetary damages or other relief to harmed parties.198
After the investigation, the Secretary must determine whether “reasonable cause exists to believe
that a discriminatory housing practice has occurred or is about to occur.”199 If she finds no
reasonable cause, then the Secretary must dismiss the complaint.200 If she finds reasonable cause,
then the Secretary must file a charge on behalf of the harmed party, unless there is a conciliation
agreement.201 If a charge is filed, then the Secretary or any party to the dispute may elect to have
the case heard in a federal district court. Otherwise, the case will be heard by an administrative
law judge (ALJ).202 In such a hearing, parties may appear with legal representation, obtain the
issuance of subpoenas, cross-examine witnesses, and submit evidence.203
The ALJ must hold a hearing within 120 days of a charge being issued, unless adhering to that
time frame is impracticable.204 The ALJ must also “make findings of fact and conclusions of law
within 60 days after the end of the hearing . . . unless it is impracticable to do so.”205 “If the [ALJ]
finds that a respondent has engaged or is about to engage in a discriminatory housing practice,”
the ALJ may award the harmed party relief, which can include monetary damages, civil penalties,
and injunctive or other equitable relief.206 The ALJ may impose a civil penalty of up to $25,597
for first offenses and higher amounts for subsequent offenses.207

196 Id. § 3610(a)(1).
197 Id. § 3610(a)(1)(B)(iv). If the Secretary discovers that the complaint is within the jurisdiction of either a state or
local public agency that the Secretary has certified, he must refer the complaint to that agency prior to pursuing the
action. If the agency does not pursue the action within thirty days of the referral, or otherwise does not pursue “such
proceedings with reasonable promptness, or the Secretary determines that the agency no longer qualifies for
certification,” then the Secretary may take further action. 42 U.S.C. § 3610(f). The rules regarding the certification and
funding of state and local housing enforcement agencies are provided in 24 C.F.R. pt. 115. For a list of HUD-certified
fair housing agencies, see Off. of Fair Hous. & Equal Opportunity, Fair Housing Assistance Program (FHAP)
Agencies, HUD, https://www.hud.gov/program_offices/fair_housing_equal_opp/partners/FHAP/agencies (last visited
Apr. 29, 2024).
198 42 U.S.C. § 3610(b). “The Secretary may authorize a civil action for appropriate temporary or preliminary relief,
pending final disposition of the complaint.” Id. § 3610(e)(1). “Whenever the Secretary has reasonable cause to believe
that a respondent has breached a conciliation agreement, the Secretary shall refer the matter to the Attorney General
with a recommendation that a civil action be filed . . . [to] enforce [the] agreement.” Id. § 3610(c).
199 Id. § 3610(g)(2).
200 Id. § 3610(g)(3).
201 Id. § 3610(g)(2).
202 Id. § 3612(b). Upon such an election, the Secretary must authorize a civil action, which the Attorney General
(within thirty days) must commence and maintain on behalf of the harmed party, who may intervene as of right in that
civil action. If the federal court finds a discriminatory practice took place, it may award actual and punitive damages to
the extent it would in a civil action commenced by a private person. Id. § 3612(o).
203 Id. § 3612(c).
204 Id. § 3612(g).
205 Id.
206 Id.
207 Id. The statutory civil penalty cap of $10,000 is adjusted for inflation in accordance with the Federal Civil Penalties
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The ALJ’s orders, findings of fact, and conclusions of law may be reviewed by the Secretary.208
Parties are also authorized to appeal administrative orders to the federal courts.209 The Secretary
may seek enforcement of an administrative order in a federal court of appeals.210 Such court may
“affirm, modify, or set aside, in whole or in part, the order, or remand” it to the ALJ for additional
proceedings. The court may also grant any party “such temporary relief, restraining order, or
other order as the court deems just and proper.”211
A court may award reasonable attorney fees to a prevailing party other than the United States.212
Enforcement by the Attorney General
The Attorney General may bring a civil action in federal district court if (1) the Attorney General
has reasonable cause to think that an individual or a group is “engaged in a pattern or practice” of
denying one’s rights under the FHA and “such denial raises an issue of general public
importance” or (2) the HUD Secretary refers a case involving a violation of a conciliation
agreement or of housing discrimination to DOJ.213 In such a civil action, the court may issue
preventive relief (such as an injunction or a restraining order), provide monetary damages, issue
civil penalties, or provide some other appropriate relief. In some instances, prevailing parties may
be able to recover reasonable legal costs and fees.214
Individuals who use force or the threat of force to “willfully injure[], intimidate[] or interfere[]
with” a person’s ability to own, rent, sell, or otherwise engage in housing-related activities based
on a protected class could also be subject to criminal penalties.215
Enforcement by Private Persons
An “aggrieved person”216 may initiate a civil action, in either a federal district court or a state
court, within two years of “the occurrence or the termination of an alleged discriminatory housing
practice, or the breach of a conciliation agreement.”217 If the Secretary has filed a complaint, an
aggrieved person may still bring a private suit unless HUD has reached a conciliation agreement

Adjustment Act Improvements Act of 2015, Pub. L. No. 114-74, § 701, 129 Stat. 599 (2015), and the Federal Civil
Penalties Inflation Adjustment Act of 1990, Pub. L. No. 101-410, 104 Stat. 890 (1990). In 2024, the maximum penalty
for first violations is $25,597, the maximum penalty with one prior violation is $63,991, and the maximum penalty with
two or more prior violations is $123,965. Adjustment of Civil Monetary Penalty Amounts for 2024, 89 Fed. Reg.
13614, 13615 (Mar. 25, 2024) (to be codified in scattered sections of 24 C.F.R).
208 42 U.S.C. § 3612(h).
209 Id. § 3612(i).
210 Id. § 3612(j).
211 Id. § 3612(k)(1)(A).
212 Id. § 3612(p); see also Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health and Hum. Res., 532 U.S. 598,
605 (2001) (denying attorney fees to plaintiffs who tried to claim “prevailing party” status where there was no
“alteration in the legal relationship of the parties.”).
213 42 U.S.C. § 3614(a), (b). “Upon timely application, any person may intervene in a civil action commenced by the
Attorney General.” Id. § 3614(e).
214 Id. § 3614(e).
215 Id. § 3631.
216 “An ‘aggrieved person’ includes any person who claims to have been injured by a discriminatory housing practice
or believes that such person will be injured by a discriminatory housing practice that is about to occur.” Id. § 3602(i).
217 Id. § 3613(a)(1). The calculation of the two-year period does not include the time that an administrative proceeding
is pending. Id.
Congressional Research Service

24

The Fair Housing Act (FHA): A Legal Overview

or an administrative hearing has begun.218 The Attorney General may intervene in a private suit
upon determining that the suit is of “general public importance.” If the court determines that
discrimination has occurred or is going to occur, it may award punitive damages, actual damages,
equitable relief (e.g., a restraining order or injunction), or other appropriate relief.219 In some
instances, prevailing parties may be able to recover reasonable legal costs and fees.220

Author Information

David H. Carpenter

Legislative Attorney

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218 Id. § 3613(a)(2)–(3).
219 Id. § 3613(c).
220 Id. § 3613(c)(2).
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