Fair Housing Series Part 3: Disparate Impact Is Not a Theory. It Is a Law. – Footnotes

U.S. Department of Justice, “Justice Department Reaches $335 Million Settlement to Resolve Allegations of Lending Discrimination by Countrywide Financial Corporation,” December 21, 2011. The settlement resolved allegations that Countrywide discriminated against qualified African American and Hispanic borrowers by charging them higher fees and interest rates than similarly qualified white borrowers between 2004 and 2008.
U.S. Department of Justice, “Department of Justice Reaches $175 Million Settlement with Wells Fargo for Discriminatory Mortgage Lending,” July 12, 2012. The settlement resolved allegations that Wells Fargo’s independent mortgage brokers charged African American and Hispanic borrowers higher fees and rates than similarly qualified white borrowers and placed borrowers in subprime loans when they qualified for prime loans.
Executive Order No. 14281: Restoring Equality of Opportunity and Meritocracy, April 23, 2025. The order states it is the policy of the United States to eliminate disparate impact liability “in all contexts to the maximum degree possible.” It directed all federal agencies to evaluate pending proceedings relying on disparate impact theories within 45 days.
Spencer Fane LLP, “HUD Moves to Dismantle Its Disparate Impact Framework Under the Fair Housing Act,” January 15, 2026. HUD proposed eliminating its disparate impact regulation entirely, with a public comment period closing February 13, 2026. If finalized, the proposal would rescind HUD’s disparate impact regulation and leave further development of the doctrine to the courts.
Massachusetts Attorney General Andrea Campbell et al. v. U.S. Department of Housing and Urban Development, filed March 2026. In September 2025, HUD issued guidance threatening to decertify state fair housing agencies and cut off funding unless they stopped enforcing protections against housing discrimination based on sexual orientation, gender identity, language, criminal records, source of income, and disparate impact claims.
Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519 (2015). The Supreme Court held 5-4 that disparate impact claims are cognizable under the Fair Housing Act, affirming that Congress intended the Act to reach facially neutral policies with discriminatory effects.
Alliance for Housing Justice, “Statement: Housing Implications of Trump’s Disparate Impact Executive Order,” April 30, 2025. Private litigation remains available for disparate impact claims under the Fair Housing Act regardless of federal enforcement posture, because the Supreme Court’s 2015 ruling established the doctrine as a matter of statutory interpretation that an executive order cannot override.

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Fair Housing Series Part 3: Disparate Impact Is Not a Theory. It Is a Law. – Footnotes

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