Disparate impact liability, a longstanding part of the Fair Housing Act (Act), prohibits the use of arbitrary, harmful policies that, though facially neutral, have an unjustified discriminatory effect. Disparate impact liability has played a critical role in protecting civil rights, advancing equal opportunity, and addressing the segregation that still persists in America. HUD’s Current Rule interpreting the Act’s disparate impact standard helps make housing accessible for women, LGBTQ+ people, people with disabilities, people of faith, people of color, and families with children, ensuring that the Act’s promise of equal housing opportunity is a reality for all people. It does this by requiring banks, landlords, and other housing providers to choose policies that apply fairly to all people. Some facially neutral policies can unfairly exclude certain groups of people or segregate particular communities in practice. Disparate impact liability requires the elimination of artificial barriers to equal opportunity for all. It allows us to identify and prevent harmful, inequitable, and unjustified policies, thereby ensuring that everyone can be treated fairly.

The text and history of the Fourteenth Amendment give Congress authority to enact laws that, like the Fair Housing Act, prohibit state action neutral in form, but discriminatory in operation, as a means of realizing the promise of equal opportunity contained in the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause provides broadly that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” To ensure that this guarantee is a reality, Section 5 of the Fourteenth Amendment provides that Congress shall have “the power to enforce, by appropriate legislation, the provisions of” the Amendment. Consistent with this core guarantee of equality for all persons, Congress has repeatedly used its express power to enforce the Fourteenth Amendment to prevent state and local governments from enacting laws and policies that result in an unjustified, disproportionate impact on people of color, recognizing that sometimes the simple prohibition of disparate treatment is insufficient to realize the Fourteenth Amendment’s goal that all persons enjoy “equal protection of the laws.” Using a robust disparate impact standard brings us further along the arc of progress marked by the amendments to our nation’s founding document.