Federal Regulatory Changes Seek to Limit Disparate Impact Liability: What Housing Providers Should Expect in 2026

Litigation attorneys Lynn Calkins and Christine Walz co-authored an article for the National Apartment Association on recent federal actions that signal a shift in fair housing enforcement priorities around disparate impact liability. The authors explain how President Donald Trump's April 2025 executive order mandating an end to enforcement actions based on the disparate impact theory of liability has been followed by a series of developments from the U.S. Department of Housing and Urban Development (HUD) and U.S. Department of Justice (DOJ), including HUD guidance deprioritizing disparate impact investigations, withdrawal of prior fair housing guidance, updated criminal screening expectations for public housing authorities (PHAs) and DOJ's rescission of disparate impact provisions under Title VI of the Civil Rights Act of 1964. The article also highlights HUD's proposed rule to eliminate its disparate impact regulatory framework under the Fair Housing Act, while noting that disparate impact claims may remain viable through private litigation and under state and local laws.

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