Advocacy Groups Sue to Save Fair Housing and Discrimination Protections

In response to a new rule from U.S. Department of Housing and Urban Development (HUD) dismantling longstanding housing discrimination protections under the Fair Housing Act (FHA), Lawyers for Civil Rights and Anderson & Kreiger have filed a federal lawsuit calling for the rule to be permanently enjoined. The lawsuit was filed on behalf of the Massachusetts Fair Housing Center, the oldest fair housing organization in Massachusetts that fights to end systemic housing discrimination,and Housing Works, a New York City-based non-profit fighting the crises of HIV/AIDS and homelessness by providing housing, healthcare, and free legal services.  

This is the first lawsuit nationally to challenge HUD’s roll-back of these critical protections. 

Passed in the wake of Dr. Martin Luther King’s murder, the FHA has made possible the de-segregation of America, enabling millions of families to exercise housing choice and move to neighborhoods where they can access well-paying jobs, high-quality schools, and affordable primary healthcare. The new rule effectively guts disparate impact discrimination, a critical tool under the FHA for people of color, women, immigrants, people with disabilities and other vulnerable individuals to challenge unjustified policies that disproportionately harm or exclude them. Disparate impact has been used to challenge everything from exclusionary zoning ordinances preventing the development of multifamily housing in predominantly wealthy, white neighborhoods to screening policies that deny housing to tenants of color. 

Now, in violation of the Administrative Procedure Act (APA), HUD has imposed extraordinary burdens on victims of housing and lending discrimination and created defenses for those who would discriminate. As just one egregious example, the new rule now permits defendants to evade liability if they can demonstrate their discriminatory policy was revenue-generating. This prioritization of profit over people contravenes the spirit and intent of the FHA and the civil rights movement that led to its passage. 

“For over thirty years, we have spent countless hours and dollars fighting to end housing discrimination in Western and Central Massachusetts,” said Meris Bergquist, Executive Director at the Massachusetts Fair Housing Center. “HUD’s new rule flagrantly violates the letter and spirit of the Fair Housing Act and upends decades of legal precedent. With a stroke of the pen, the administration has undermined our work and abrogated its legal responsibility to affirmatively further fair housing. This rule is misguided and cannot stand.” 

 “For HUD to issue this rule in the midst of a pandemic is truly unconscionable,” said Armen H. Merjian, Senior Staff Attorney at Housing Works. “Housing is healthcare, and our most vulnerable populations, who are still reeling from the effects of COVID-19, need more, not less, protection from discrimination. By eviscerating the relevant Fair Housing Act provisions, this rule will make it extremely difficult or impossible to overcome the rampant discrimination that still exists in the market and to access the life-saving shelter our clients so desperately need.” 

“The new rule is simply this Administration’s latest attack on marginalized communities,” said Lauren Sampson, Staff Attorney at Lawyers for Civil Rights. “The President claimed rescinding the Affirmatively Furthering Fair Housing Rule would protect ‘suburban housewives’ from crime. HUD is trying to deny families with mixed immigrant statuses federal housing assistance and enable shelter operators to discriminate against transgender and nonbinary people. They must be held accountable.” 

 “The Supreme Court has spoken: disparate impact is a vital and necessary part of the Fair Housing Act,” said Scott Lewis, partner at Anderson & Kreiger. “The new rule is breathtaking in its unlawfulness, disregarding decades of precedent to impose unnecessary burdens on victims of housing and lending discrimination that have no place in our law. We call upon the federal court to enjoin the rule immediately.” 

Anderson & Kreiger is providing pro bono support in this matter. 

The complaint is available here along with Exhibit A and Exhibit B.  

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