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Center on Disability comments opposing HUD’s proposed elimination of its 2013 Fair Housing Act disparate impact regulations

February 12, 2026

Regulations Division
Office of the General Counsel
Department of Housing and Urban Development
451 Seventh Street SW, Room 10276
Washington, DC 20410-0500

Re: HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard, Docket No. FR–6540–P–01, RIN 2529–AB09 

The Center on Disability submits this comment in opposition to the U.S. Department of Housing and Urban Development’s (“HUD”) Notice of Proposed Rulemaking (“Notice”) regarding the removal of HUD’s Fair Housing Act’s (FHA) discriminatory effects regulations from the Code of Federal Regulations, in furtherance of HUD’s policy of refusing to fully enforce the Fair Housing Act with respect to disparate impact.

My name is Jan Garrett, and I am the Deputy Director of the Center on Disability. The Center provides education, advocacy, and support to advance the full and equal participation of people with disabilities in all aspects of society. The Fair Housing Act prohibits discrimination on the basis of disability in all types of housing transactions. On almost a daily basis, the Center on Disability staff provide technical assistance to individuals with disabilities and their supporters regarding their rights under the FHA, as well as to those inquiring about their responsibilities under this law.

The Center firmly believes that all people deserve to have access to the housing they need without facing unfair discrimination. This is equally true whether that discrimination takes the form of disparate treatment based on disability, race, national origin or other protected class characteristics or whether it is manifested in the kinds of hidden, sometimes subtle forms of discrimination against which the disparate impact standard, as codified in HUD’s current regulation and based in over 50 years of legal precedent, has been successful in combatting. The existing disparate impact standard is a vital tool to ensure that our local housing market operates in a manner that is free from discrimination. This, in turn, is fundamental to the social and economic vitality of our community.

The Center on Disability opposes HUD’s proposed removal of its discriminatory effects regulations. This furthers HUD’s policy of refusing to fully enforce the Fair Housing Act with respect to claims based on discriminatory impact and other claims that the current administration does not favor. Maintaining HUD’s clear articulation of the disparate impact standard in the current regulations, fully investigating all HUD-filed complaints that allege disparate impact discrimination, and adhering to Supreme Court and other judicial precedent are vital to our efforts to address housing discrimination in our community. HUD’s refusal to recognize binding Supreme Court precedent confirming that disparate impact is part of the Fair Housing Act makes it more difficult to challenge policies and practices that appear neutral on their face but are unjustified and have a disparate impact on the basis of protected class.

As discussed in a recent Urban Institute paper, “Disabled people living in the United States tend to have lower incomes and are less likely to be working than the nondisabled population. Twenty-two percent of people with disabilities have ‘extremely low’ incomes, as defined by the US Department of Housing and Urban Development (HUD). Only 1 in 4 disabled people (23 percent) were working in 2021, compared with 69 percent of the nondisabled population. And the median income for households with at least one disabled member was $42,736—less than 60 percent of the median income for households without a disabled member ($75,000).”  As a result, individuals with disabilities are particularly impacted by unfair housing policies.  

The current rule, as well as HUD’s enforcement of it, has been critical for challenging a wide range of discriminatory housing policies that prevent fair access to housing for individuals with disabilities. It can provide protection for:

  • Home mortgage applicants, when a bank charges unfair and excessive fees or rates to certain groups who seek loans, forcing them to take on risky or costly loans or forgo financing altogether. 
  • Individuals whose landlord refuses to rent to people using government housing vouchers or who aren’t employed full-time (even when they have enough income to qualify).
  • Individuals whose lender denies an applicant because they cannot provide proof of their disability assistance continuing for years, even when similar future income requirements are not made for other applicants.  

These are just a few of the kinds of policies that appear neutral on their face but discriminate based on protected class – policies that the existing disparate impact standard helps to root out. Disparate impact’s focus on less discriminatory alternatives encourages housing providers and others to adopt less arbitrary and restrictive practices while still meeting their business needs. Eliminating disparate impact under the FHA would allow insurance companies, financial institutions, and other major corporations to engage in covert discriminatory practices with impunity.

Abandoning the use of disparate impact liability is also short-sighted, considering the nation’s longstanding shortage of affordable housing. According to the National Low Income Housing Coalition, the nation’s “10.9 million extremely low-income renter households face a shortage of 7.1 million affordable and available rental homes, resulting in only 35 affordable and available homes for every 100 extremely low-income renter households.” People with disabilities are disproportionately extremely low-income renters and are disproportionately impacted by the housing shortage. 

Accordingly, HUD’s existing rule should not be eliminated.  Instead, HUD must return to full enforcement of the Fair Housing Act as required by law, including disparate-impact claims, to remove unnecessary and discriminatory barriers to housing choice that communities around the country continue to experience.  

Thank you for the opportunity to comment. 

Sincerely,
Jan Garrett
Deputy Director
Center on Disability

 1 24 C.F.R. § 100.500.
 2 NLIHC, The Gap: A Shortage of Affordable Homes, at 4 (2025), available at: https://nlihc.org/gap.

Photo by Disabled and Here