The Fair Housing Act: HUD Oversight, Programs, and Activities

July 6, 2016 – April 7, 2021 R44557

The Fair Housing Act: HUD Oversight,
April 7, 2021
Programs, and Activities
Libby Perl
The federal Fair Housing Act, enacted in 1968 as Title VIII of the Civil Rights Act (P.L. 90-284),
Specialist in Housing Policy
prohibits discrimination in the sale, rental, or financing of housing based on race, color, religion,

national origin, sex, familial status, and handicap. The Department of Housing and Urban
Development (HUD), through its Office of Fair Housing and Equal Opportunity (FHEO),

receives and investigates complaints under the Fair Housing Act and determines if there is
reasonable cause to believe that discrimination has occurred or is about to occur.
State and local fair housing agencies and private fair housing organizations also investigate complaints based on federal,
state, and local fair housing laws. If alleged discrimination takes place in a state or locality with its own similar fair housing
enforcement agency, HUD must refer the complaint to that agency. Two programs administered by FHEO provide federal
funding to assist state, local, and private fair housing organizations:
 The Fair Housing Assistance Program (FHAP) funds state and local agencies that HUD certifies as having
their own laws, procedures, and remedies that are substantially equivalent to the federal Fair Housing Act.
Funding is used for such activities as capacity building, processing complaints, administrative costs, and
training. In FY2021, the appropriation for FHAP was $24.4 million.
 The Fair Housing Initiatives Program (FHIP) funds eligible entities, most of which are private nonprofit
organizations. Funds are used for investigating complaints, including testing (comparing outcomes when
members of a protected class attempt to obtain housing with outcomes for those not in a protected class),
education, outreach, and capacity building. In FY2021, the appropriation for FHIP was $66.3 million, an
additional $20 million of which was provided in the American Rescue Plan Act (P.L. 117-2).

Another provision of the Fair Housing Act requires that HUD affirmatively furt her fair housing (AFFH). As part of this
requirement, recipients of certain HUD funding—jurisdictions that receive Community Planning and Development grants
and Public Housing Authorities—are to certify that they are affirmatively furthering fair housing. In July 2015, HUD issued a
rule governing the process, called the Assessment of Fair Housing (AFH). The rule provided that funding recipients assess
their jurisdictions and regions for fair housing issues (including areas of segregation, racially and ethnically concentrated
areas of poverty, disparities in access to opportunity, and disproportionate housing needs), identify factors that contribute to
these fair housing issues, and set priorities and goals for overcoming them.
Within two years of publication of the final rule, HUD suspended it indefinitely, in May 2018. Within another two years,
HUD issued a different final rule, entitled “Preserving Community and Neighborhood Choice,” which became effective on
September 8, 2020. Grant recipients are to certify that they have taken an action rationally related to “promoting one or more
attributes of fair housing”—that it is “affordable, safe, decent, free of unlawful discrimination, and accessible as required
under civil rights laws.” The Biden Administration has asked HUD to examine the effects of both repealing the 2015 rule and
implementing the new one on the agency’s duty to affirmatively further fair housing.
Among other activities undertaken by HUD’s FHEO are efforts to prevent discrimination that may not be explicitly directed
against protected classes under the Fair Housing Act. This includes issuing a regulation to prohibit discrimination in HUD
programs based on sexual orientation and gender identity and releasing guidance in 2016 addressing several issues: the use of
criminal background checks in screening applicants for housing, local nuisance ordinances that may disproportionately affect
victims of domestic violence, and failure to serve people who have limited English proficiency.
FHEO also oversees efforts to ensure that clients with Limited English Proficiency (LEP) have access to HUD programs.
Guidance from FHEO helps housing providers determine how best to provide translation services, and HUD also receives a
small appropriation through the Fair Housing and Equal Opportunity account for the agency to translate documents and
provide translation on the phone or at events.
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Introduction
The Fair Housing Act was enacted as Title VIII of the Civil Rights Act of 1968 (P.L. 90-284).1 As
initial y enacted, the Fair Housing Act prohibited discrimination in the sale, rental, or financing of
housing based on race, color, religion, and national origin. In 1974, Congress added sex as a
protected category (the Housing and Community Development Act, P.L. 93-383), and in 1988 it
added familial status and handicap (the Fair Housing Amendments Act, P.L. 100-430). The Fair
Housing Act also prohibits retaliation when individuals attempt to exercise their rights (or assist
others in exercising their rights) under the law.2
This report discusses the Fair Housing Act from the perspective of the activities undertaken and
programs administered by the Department of Housing and Urban Development (HUD) and its
Office of Fair Housing and Equal Opportunity (FHEO). For information about legal aspects of
the Fair Housing Act, such as types of discrimination, exceptions to the law, and discussion of
court precedent, see CRS Report 95-710, The Fair Housing Act (FHA): A Legal Overview.
HUD and FHEO play a role in enforcing the Fair Housing Act by receiving, investigating, and
making determinations regarding complaints of Fair Housing Act violations. FHEO also oversees
federal funding to state, local, and nonprofit organizations that investigate fair housing complaints
based on federal, state, or local laws through the Fair Housing Assistance Program and Fair
Housing Initiatives Program.
The Fair Housing Act also requires that HUD affirmatively further fair housing (AFFH). While
not defined in statute, affirmatively furthering fair housing has been found by courts to mean
doing more than simply refraining from discrimination, and working to end discrimination and
segregation.3 In July 2015, HUD released a rule to govern how certain recipients of HUD funding
(those receiving Community Planning and Development formula grants and Public Housing
Authorities) must affirmatively further fair housing. In 2018, HUD suspended enforcement of the
2015 AFFH rule, and on August 7, 2020, it issued a new rule that repealed and replaced the 2015
AFFH rule.
Additional y, under the Obama Administration, HUD and FHEO took steps to protect against
discrimination not explicitly directed against members of classes protected under the Fair
Housing Act—issuing a rule to prevent discrimination in HUD programs based on sexual
orientation and gender identity (the equal access to housing rule), and providing guidance to
prevent discrimination that may arise from criminal background checks, nuisance ordinances, and
failure to provide housing to those who do not speak English. While the Trump Administration
released a proposed rule to make changes to the equal access to housing rule, it did not become
final. Further, under the Biden Administration HUD wil consider discrimination based on sex to
include sexual orientation and gender identity in al housing, an expansion of the protections in
the equal access to housing rule, which applied only to HUD programs.4

1 42 U.S.C. §3601 et seq.
2 42 U.S.C. §3617.
3 For more information, see the section of the report entitled “ Affirmatively Furthering Fair Housing”.
4 U.S. Department of Housing and Urban Development, Memorandum: Implementation of Executive Order 13988 on
the Enforcem ent of the Fair Housing Act, February 11, 2021, https://www.hud.gov/sites/dfiles/FHEO/documents/
WordenMemoEO13988FHActImplementation.pdf (hereinafter Mem orandum : Im plementation of Executive Order
13988 on the Enforcem ent of the Fair Housing Act).
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After a brief summary of the Fair Housing Act, this report discusses each of these Fair Housing
activities, as wel as another initiative administered by FHEO, Limited English Proficiency.
A Brief Overview of the Fair Housing Act
The Fair Housing Act protects specified groups from discrimination in obtaining and maintaining
housing. The act applies to the rental or sale of dwel ing units with exceptions for single-family
homes (as long as the owner does not own more than three single-family homes) and dwel ings
with up to four units where one is owner-occupied.5
Discrimination based on the following characteristics is prohibited under the act. In cases where
the statute defines a protected characteristic, or there is additional relevant information on
exemptions or how a protected category is interpreted, it is included here. The terms race, color,
and national origin are not defined in the Fair Housing Act statute.
 Race
 Color
 Religion—The statute provides an exemption for religious organizations to rent
or sel property they own or operate to members of the same religion (as long as
membership is not restricted based on race, color, or national origin).6
 National origin
 Sex—In February 2021, HUD released a memo stating that it would begin
accepting complaints for discrimination based on sexual orientation or gender
identity, and that FHEO would conduct “al other activities involving the
application, interpretation, and enforcement of the Fair Housing Act’s prohibition
on sex discrimination to include discrimination because of sexual orientation and
gender identity.”7 HUD issued this guidance in response to the 2020 decision,
Bostock v. Clayton County, in which the Supreme Court held that Title VII of the
Civil Rights Act of 1964 barred employers from firing an individual for being
gay or transgender.8 HUD’s guidance explains that “the Fair Housing Act’s sex
discrimination provisions are comparable to those of Title VII and that they
likewise prohibit discrimination because of sexual orientation and gender
identity.” Further, courts have found discrimination based on sex to include
sexual harassment, and HUD regulations outline quid pro quo and hostile
environment sexual harassment that violates the Fair Housing Act.9
Discrimination based on nonconformity with gender stereotypes may also be
unlawful sex-based discrimination under the Fair Housing Act.10

5 42 U.S.C. §3603. For more information about this exception, see CRS Report 95-710, The Fair Housing Act (FHA):
A Legal Overview, by David H. Carpenter.
6 42 U.S.C. §3607(a).
7 Memorandum: Implementation of Executive Order 13988 on the Enforcement of the Fair Housing Act .
8 For more information, see CRS Legal Sidebar LSB10496, Supreme Court Rules Title VII Bars Discrimination Against
Gay and Transgender Em ployees: Potential Im plications.
9 24 C.F.R. §100.600.
10 For more information, see CRS Report 95-710, The Fair Housing Act (FHA): A Legal Overview.
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 Familial status—The statute defines familial status to mean parents or others
having custody of one or more children under age 18.11 Familial status
discrimination does not apply to housing dedicated to older persons.12
 Handicap13—The statute defines handicap as having a physical or mental
impairment that substantial y limits one or more major life activities, having a
record of such impairment, or being regarded as having such an impairment.14
Regulations provide lists of conditions that may constitute physical or mental
impairments.15 Major life activities means “functions such as caring for one’s
self, performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning and working.”16
Note that states and localities may have fair housing laws with broader protections than those
encompassed in the federal Fair Housing Act, including such protected classes as age, sexual
orientation, or source of income (prohibiting discrimination against those relying on government
subsidies to pay for housing).
The Fair Housing Act protects individuals in the covered classes from discrimination in a range of
activities involving housing. Some of the specific types of activities that are prohibited include
the following:17
 Refusing to rent or sel , refusing to negotiate for a rental or sale, or otherwise
making a dwel ing unavailable based on protected class.
 Discriminating in the terms, conditions, or privileges of sale or rental or in the
services and facilities provided in connection with a sale or rental.
 Making, printing, or publishing notices, statements, or advertisements that
indicate preference, limitation, or discrimination in connection with a sale or
rental based on protected class.
 Representing that a dwel ing is not available for inspection, sale, or rental based
on protected class.
 Inducing, for profit, someone to sel or rent based on the representation that
members of a protected class are moving to the neighborhood (sometimes
referred to as blockbusting).
 Refusing to al ow reasonable modifications or reasonable accommodations for
persons with a disability. Reasonable modifications involve physical changes to
the property while reasonable accommodations involve changes in rules, policies,
practices, or services to accommodate disabilities.
 Discriminating in “residential real estate related transactions,” including the
provision of loans and sel ing, brokering, or appraising property.18

11 42 U.S.C. §3602(k).
12 42 U.S.C. §3607(b).
13 Although the term “disability” has come to be preferred, the Fair Housing Act still uses the word “handicap.”
14 42 U.S.C. §3602(h).
15 24 C.F.R. §100.201.
16 Ibid.
17 Unless otherwise noted, prohibited activities are listed at 42 U.S.C. §3604.
18 42 U.S.C. §3605.
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 Retaliating (i.e., coercing, intimidating, threatening, or interfering) against
anyone attempting to exercise rights under the Fair Housing Act.19
HUD’s Involvement in Enforcement of the
Fair Housing Act
HUD, together with state and local fair housing agencies and private fair housing organizations,
investigates fair housing complaints. HUD receives complaints from individuals who believe they
have been subject to discrimination or are about to experience discrimination. If the
discrimination takes place in a state or locality with its own similar fair housing enforcement
agency, sometimes referred to as a Fair Housing Assistance Program (FHAP) agency, HUD must
refer the complaint to that agency.20 (See the “Fair Housing Assistance Program (FHAP)” section
of this report for more information about state and local agencies.) In addition, if a complaint
involves a chal enge to zoning or land use laws, then HUD must refer the case to the Department
of Justice (DOJ).21 HUD also refers complaints with possible criminal violations or patterns or
practices of discrimination to DOJ.22
Once an individual has filed a complaint with HUD, or HUD has filed a complaint on its own
initiative, a notice is served on the party al eged to have discriminated. That party, in turn, has the
opportunity to file a response to the complaint.23 HUD investigates complaints to determine if
there is reasonable cause to believe a discriminatory practice has occurred or is about to occur.24
While an investigation is ongoing, HUD may also engage in conciliation to try to reach an
agreement between the parties.25 Conciliation requires voluntary participation of both parties.
Relief can be sought both for the aggrieved party and for the public interest. If parties do not
reach an agreement, then HUD determines whether there is reasonable cause to believe
discrimination occurred or was about to occur.26
 No Reasonable Cause: If HUD finds no reasonable cause to believe that
discrimination occurred, then it dismisses the complaint. While not part of the
statutory process, HUD may al ow the person submitting the complaint to ask for
reconsideration of the denial.27
 Reasonable Cause: If HUD finds reasonable cause to believe that discrimination
occurred, it issues a charge—a written statement of facts on which the
determination of reasonable cause is based.28 Either party may request that the
case be heard in court, but if neither party makes this election, then the case is

19 42 U.S.C. §3617.
20 42 U.S.C. §3610(f).
21 42 U.S.C. §3610(g)(2)(C).
22 U.S. Department of Housing and Urban Development, Annual Report on Fair Housing, FY2012-2013, November 7,
2014, p. 27, http://portal.hud.gov/hudportal/documents/huddoc?id=2012-13annreport.pdf.
23 42 U.S.C. §3610(a).
24 42 U.S.C. §3610(g).
25 42 U.S.C. §3610(b).
26 42 U.S.C. §3610(g), 24 C.F.R. §103.400.
27 See HUD’s website at https://www.hud.gov/program_offices/fair_housing_equal_opp/complaint-process, accessed
February 22, 2021.
28 42 U.S.C. §3610(g), 24 C.F.R. §103.405.
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heard before an administrative law judge.29 If the case goes to federal court, then
HUD transfers the case to DOJ.30
Aggrieved parties may seek actual monetary damages. The law also al ows an administrative law
judge to impose a civil penalty “to vindicate the public interest” (amounts vary based on whether
there have been previous infractions) and to order injunctive relief.31
If an individual withdraws a complaint, no longer cooperates, or cannot be reached for follow -up,
then HUD closes the complaint as an administrative closure.32
For more information on complaints, see “HUD and FHAP Agency Complaint and Enforcement
Data.”
HUD Funding for State, Local, and Private
Nonprofit Fair Housing Programs
HUD oversees two programs that promote fair housing at the state and local level: the Fair
Housing Assistance Program (FHAP) and the Fair Housing Initiatives Program (FHIP). FHAP
funds state and local fair housing agencies, and FHIP funds eligible entities that largely include
private nonprofit organizations.33 These recipients in turn supplement HUD’s efforts to promote
fair housing, detect discrimination, investigate complaints, and enforce the fair housing law. The
following subsections describe FHAP and FHIP and provide funding levels for the programs.
Fair Housing Assistance Program (FHAP)
FHAP funds state and local agencies that HUD certifies as having their own laws, procedures,
and remedies that are substantial y equivalent to the federal Fair Housing Act.34 The Fair Housing
statute requires HUD to refer complaints that violate state and local fair housing laws to the
certified agencies responsible for enforcing them (in jurisdictions that have such agencies).35 At
the time of the enactment of the Fair Housing Act, multiple states and local jurisdictions had
enacted their own laws and established agencies for their enforcement.36
Funding to assist state and local agencies in enforcing fair housing laws was first provided in the
FY1980 Appropriations Act for HUD (P.L. 96-103) after a budget request from the Carter

29 42 C.F.R. §3612.
30 State of Fair Housing Annual Report to Congress, FY2018 -FY2019, p. 29, https://www.hud.gov/sites/dfiles/FHEO/
documents/FHEO%20Report%202020%20-%20Printable%20Version.pdf (hereinafter, FY2018-FY2019 Annual Fair
Housing Report to Congress).
31 42 U.S.C. §3612(g)(3).
32 U.S. Department of Housing and Urban Development, Handbook 8024.1, Title VIII Complaint Intake, Investigation,
and Conciliation, pp. 9-1, https://www.hud.gov/sites/documents/80241c9FHEH.pdf.
33 Kenneth T emkin, Tracy McCracken, and Veralee Liban, Study of the Fair Housing Initiatives Program , U.S.
Department of Housing and Urban Development, May 2011, p. 21, https://www.huduser.gov/portal//Publications/pdf/
FHIP_2011.pdf.
34 42 U.S.C. §3610(f)(3).
35 42 U.S.C. §3610(f)(1).
36 See, for example, Housing and Home Finance Agency, Fair Housing Laws: Summaries and Text of State and
Municipal Laws (Washington, DC: U.S. Government Printing Office, 1964). See also U.S. Congress, Senate
Committee on Banking and the Currency, Subcommittee on Housing and Urban Affairs, S. 1358, S. 2114, and 2280
Relating to Civil Rights and Housing, 90th Cong., 1st sess., August 21-23, 1967, pp. 491-496.
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Administration. The FY1980 budget justifications discussed limitations in the ability of states to
handle fair housing complaints referred from HUD, and that in many cases complaints had to be
sent back to HUD for processing.37 The President’s budget proposed funding for financial and
technical assistance to assist states in handling fair housing complaints, with first-year funding
provided for capacity building, and subsequent years’ funding based on the number of complaints
processed by each agency. Funding continues to be based on the number of complaints handled
by FHAP agencies. Congress followed the Administration’s FY1980 request and appropriated
$3.7 mil ion for the program. The appropriation initial y supported 31 state and local agencies.38
At the end of FY2019, there were 77 state and local agencies, which represents a gradual
reduction over recent years as agencies withdrew from the program; in FY2009, 113 FHAP
agencies were funded.39
Activities for which FHAP agencies receive funding include capacity building, processing
complaints, administrative costs, training, and special enforcement efforts.40 When a FHAP
agency receives a fair housing complaint, it goes through much the same process as HUD.41 The
agency conducts an investigation, and, as the investigation is ongoing, works on conciliation with
the parties. For more information on complaints, see “HUD and FHAP Agency Complaint and
Enforcement Data.”
Fair Housing Initiatives Program (FHIP)
The Fair Housing Initiatives Program (FHIP) was created as part of the Housing and Community
Development Act of 1987 (P.L. 100-242) as a demonstration program and was made permanent in
1992 (P.L. 102-550). Through FHIP, HUD enters into contracts or awards competitive grants to
eligible entities—including state and local governments, nonprofit organizations, or other public
or private entities, including FHAP agencies—to participate in activities resulting in enforcement
of federal, state, or local fair housing laws, and for education and outreach. The majority of FHIP
grantees are private nonprofit organizations.
FHIP was added to the Fair Housing law in recognition of the fact that additional assistance was
needed to detect fair housing violations and enforce the law. In particular, FHIP authorized
funding for organizations to conduct testing whereby matched pairs of individuals, one with
protected characteristics and the other without, both attempt to obtain housing from the same
providers.
HUD funds three activities that are provided for under the statute:42

37 U.S. Department of Housing and Urban Development, FY1980 Budget Justifications, p. Q-2.
38 U.S. Department of Housing and Urban Development, FY1981 Budget Justifications, p. P-7.
39 FY2018-FY2019 Annual Fair Housing Report to Congress, p. 52; and FY2009 Budget Justifications, p. O-3,
http://archives.hud.gov/budget/fy09/cjs/fheo1.pdf.
40 24 C.F.R. §115.302 and §115.304.
41 HUD regulations spell out criteria that must be in state and local laws. 24 C.F.R. §115.204.
42 42 U.S.C. §3616a. A fourth activity, the Administrative Enforcement Initiative, is not currently funded. U.S.
Department of Housing and Urban Development, Fair Housing Initiatives Program Application and Award Policies
and Procedures Guide, July 2015, p. 246, http://portal.hud.gov/hudportal/documents/huddoc?id=
fhipappguide729.docx. T he Administrative Enforcement Initiative funded state and local governments that administer
laws that are substantially equivalent to the federal Fair Housing Act. 24 C.F.R. §125.201. However, these entities
already receive funding under FHAP.
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 Private Enforcement Initiative:43 Provides funds for fair housing enforcement
organizations to investigate violations of the federal Fair Housing Act and similar
state and local laws, and to obtain enforcement of the laws. Fair housing
enforcement organizations are private nonprofit organizations that receive and
investigate complaints about fair housing, test fair housing compliance, and bring
enforcement actions for violations.44 Organizations may receive Private
Enforcement Initiative funding if they have at least one year of experience
participating in these activities.
 Education and Outreach Initiative:45 The statute provides for awards to fair
housing enforcement organizations, private nonprofit organizations, public
entities, and state or local FHAP agencies to be used for national, regional, local,
and community-based education and outreach programs. Such activities include
developing brochures, advertisements, videos, presentations, and training
materials.46
 Fair Housing Organization Initiative:47 Provides funding for existing fair
housing enforcement organizations or new organizations to build their capacity to
provide fair housing enforcement.
Organizations that receive FHIP funding investigate fair housing complaints brought to them by
individuals and also initiate their own investigations. If there is evidence that discrimination
occurred, then FHIP agencies can help individuals file complaints with HUD or a state or local
FHAP agency, or bring a private action in court.
Funding for FHAP and FHIP
Appropriations for FHIP have not been authorized since FY1994 (P.L. 102-550), and FHAP was
never separately authorized (Title VIII of the Civil Rights Act general y was authorized at such
sums as necessary48) but Congress has continued to provide funding for the two programs in
every year through FY2021.
In FY2020, both programs received additional funding as part of the Coronavirus Aid, Relief, and
Economic Security (CARES) Act (P.L. 116-136), $1.5 mil ion for FHAP and $1 mil ion for FHIP,
to address issues related to the COVID-19 pandemic. FHAP funds were available for education
and outreach, technology needs, fair housing testing, and staffing related to increased
complaints.49 FHIP funds were directed to the Education and Outreach Initiative, with half of the
funds set aside for a national media campaign and the other half awarded to applicants for general
education and outreach around Fair Housing Act rights and responsibilities.
FY2021 FHIP funding also increased as a consequence of the COVID-19 pandemic. The
American Rescue Plan Act (P.L. 117-2) appropriated $20 mil ion for FHIP grantees to address fair

43 42 U.S.C. §3616a(b), 24 C.F.R. §125.401.
44 42 U.S.C. §3616a(h).
45 42 U.S.C. §3616a(d), 24 C.F.R. §125.301.
46 See, for example, U.S. Department of Housing and Urban Development, FY2020 Fair Housing Initiatives Notice of
Funding Availability, May 11, 2020, https://www.hud.gov/sites/dfiles/SPM/documents/
FHIP_Education_and_Outreach_TechnicalCorrection_5.6.2020_FR-6400-N-21A-TC.pdf.
47 42 U.S.C. §3616a(c), 24 C.F.R. §125.501.
48 42 U.S.C. §3618.
49 U.S. Department of Housing and Urban Development, Notice: Fair Housing Assistance Program (FHAP) COVID-
19 Funds, April 20, 2020, https://www.hud.gov/sites/dfiles/Main/documents/FHAP-COVID-19-Funds.pdf.
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housing complaints, conduct investigations, engage in education and outreach, and account for
increased program delivery costs.
Figure 1, below, shows funding for FHAP and FHIP since FY1996. (For exact amounts
appropriated since FY1996, see Appendix A.)
Figure 1. FHAP and FHIP Funding Trends, FY1996-FY2021

Source: For dol ar amounts and data source, see Table A-1.
Note: Additional funding was appropriated for both FHIP and FHAP in FY2020 and FY2021 to respond to the
COVID-19 pandemic.
HUD and FHAP Agency Complaint and
Enforcement Data
A Note About Fair Housing Data
HUD issues annual reports that contain the number of fair housing complaints it receives and investigates, as wel
as the number received by FHAP agencies. Agencies that receive FHIP funds also investigate fair housing
complaints, but HUD does not include FHIP agency complaints and investigations in its reports. The National Fair
Housing Al iance (NFHA), a nonprofit organization, col ects data from its member organizations (some of which
receive FHIP funds) about the number of fair housing complaints investigated.50 The NFHA data include
organizations in addition to those that receive FHIP funding, and also include complaints that are eventual y
referred to HUD and FHAP agencies, so some numbers in the NFHA reports may duplicate those in the HUD
reports. In addition, NFHA data may include complaints based on state and local laws with protected categories
not covered by the federal Fair Housing Act (such as discrimination based on source of income or age). As a
result, NFHA data are not included in this section.
FHIP agencies receive thousands of complaints a year, likely exceeding HUD and FHAP complaints combined, so
the data presented here are not a complete picture of fair housing complaints.51

50 T he National Fair Housing Alliance reports data on complaints in its annual Fair Housing T rends Report, available at
https://nationalfairhousing.org/reports-research/.
51 For example, in its 2020 Annual Fair Housing T rends Report, the National Fair Housing Alliance reported more than
21,000 complaints investigated by nonprofit fair housing organizations in FY2019.
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HUD reports the number of fair housing complaints it receives as wel as those received by FHAP
agencies. In recent years, the number of complaints filed with both HUD and FHAP agencies has
declined, from a high of 10,552 in FY2008 to 7,729 in FY2019, the most recent year in which
data are available.52 During this time period, the number of FHAP agencies decreased from 108
operating at the end of FY2008 to 77 at the end of FY2019.53 See Figure 2 for HUD and FHAP
agency complaints between FY2008 and FY2019.
Figure 2. Number of Complaints Filed with HUD and FHAP Agencies
FY2008-FY2019

Source: HUD Annual Reports on Fair Housing, FY2008-FY2019, available at http://portal.hud.gov/hudportal/
HUD?src=/annualreport.
Complaints filed with HUD and FHAP agencies rarely result in charges against housing
providers. In many cases there is a finding of no reasonable cause to pursue the complaint—37%
of complaints for HUD and 55% for FHAP agencies in FY2019.54 HUD conciliated and settled
36% of cases in FY2019, with FHAP agencies doing so for 20% of cases. Only 2% of complaints
to HUD and 8% of those to FHAP agencies resulted in a charge being filed in FY2019.
Approximately 21% of complaints for HUD were either administrative closures, meaning
general y that complainants did not continue to pursue their complaints, or were withdrawn after
some kind of resolution. For FHAP agencies, 17% of cases were either administrative closures or
withdrawn with resolution. See Figure 3 for HUD and FHAP agency complaint dispositions in
FY2019.

52 See U.S. Department of Housing and Urban Development, The State of Fair Housing, FY2008 Annual Report on
Fair Housing, http://portal.hud.gov/hudportal/documents/huddoc?id=DOC_12309.pdf (hereinafter, FY2008 Annual
Report on Fair Housing); and FY2018-FY2019 Annual Fair Housing Report to Congress, p. 23.
53 FY2008 Annual Report on Fair Housing, p. 31; and FY2018-FY2019 Annual Fair Housing Report to Congress, p.
52.
54 Resolution data are in FY2018-FY2019 Annual Fair Housing Report to Congress, p. 27.
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Figure 3. HUD and FHAP Agency Complaint Disposition
FY2019

Source: HUD, Annual Report on Fair Housing, FY2016, January 19, 2017, available at https://portal.hud.gov/
hudportal/documents/huddoc?id=FY2016FHEOAnnualReport.pdf.
Since FY2005, the highest percentage of fair housing complaints filed have been based on
disability. Until that time, the percentage of complaints based on race and disability had been
nearly equal: 38% and 41% of total complaints, respectively.55 However, by FY2019 the
percentage of complaints based on disability increased to 62%, and race declined to 26%.56 (Note
that in calculating complaint percentages HUD takes into account the fact that one case may
al ege multiple bases for discrimination. As a result, the sum of percentages for al types of
discrimination exceeds 100%.) Familial status complaints have also declined somewhat during
this period, while other protected categories—national origin, sex, religion, and color—have
remained at about the same levels. HUD also reports the number of complaints based on
retaliation, which have increased from approximately 5% in FY2005 to 13% in FY2019. See
Figure 4 for complaints filed by protected class through FY2019.
The high percentage of complaints based on disability may in part have to do with additional
protections for people with disabilities. Unlike other protected statuses, the Fair Housing Act
imposes affirmative duties on housing providers to make “reasonable accommodations” for
individuals with disabilities. Under the law, it is discriminatory to refuse to al ow residents with
disabilities to make physical changes to the premises, at their own expense, in order to afford
them full enjoyment of the premises.57 Examples of reasonable accommodations include changes
to a unit such as widening doorways, instal ing a ramp or grab bars, or lowering cabinets.58 In
addition, the law gives residents with disabilities the right to request “reasonable
accommodations” in the rules, policies, practices, or services that may ordinarily apply to housing
residents. It is considered discrimination under the Fair Housing Act to refuse to make a

55 FY2008 Annual Report on Fair Housing, p. 3.
56 FY2018-FY2019 Annual Fair Housing Report to Congress, p. 24.
57 42 U.S.C. §3604(f)(3)(A).
58 See Reasonable Modifications Under the Fair Housing Act, Joint Statement of T he Department of Housing and
Urban Development and the Department of Justice, March 5, 2008, p. 4, https://www.hud.gov/sites/documents/
reasonable_modifications_mar08.pdf.
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reasonable accommodation in order to give residents with disabilities an equal opportunity to use
and enjoy their dwel ing unit.59 Examples of reasonable accommodations include making parking
spaces available to residents with disabilities or al owing assistance animals in a property that
does not otherwise al ow pets.60 An accommodation is not considered reasonable if it imposes an
undue financial or administrative burden, or if it fundamental y alters the nature of the housing
provider’s operations.61 In FY2019, the failure to make a reasonable accommodation was the
second-most frequently raised issue in complaints, representing 43% of HUD and FHAP
complaints raised in cases filed (after discriminatory terms, conditions, privileges, services, and
facilities in the rental or sale of property).62
Figure 4. HUD and FHAP Complaints Filed by Protected Status
FY2005-FY2019

Source: HUD Annual Reports on Fair Housing, FY2008-FY2016, available at http://portal.hud.gov/hudportal/
HUD?src=/annualreport.
Note: Percentages represent the number of discrimination complaints as a percentage of al cases filed. Cases
may contain more than one complaint of discrimination (for example, race and sex). As a result, the sum of
percentages each year exceeds 100%.
Other HUD Efforts to Prevent Discrimination
in Housing
During the Obama Administration, HUD issued regulations and guidance to protect individuals
from discrimination that may not be explicitly directed against protected classes under the Fair

59 42 U.S.C. §3604(f)(3)(B).
60 Reasonable Accommodations Under the Fair Housing Act, Joint Statement of the Department of Housing and Urban
Development and the Department of Justice, May 17, 2004, http://www.nhl.gov/offices/fheo/library/
huddojstatement.pdf.
61 Ibid., p. 7.
62 FY2018-FY2019 Annual Fair Housing Report to Congress, p. 26. HUD calculates percentages based on total number
of complaints as a percentage of all cases filed. Because each case can contain more than one basis for a complaint, the
sum of percentages exceeds 100%.
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Housing Act. In one case, HUD used its authority to prevent discrimination in the programs it
administers by issuing regulations prohibiting discrimination based on sexual orientation and
gender identity. HUD also released guidance to inform housing providers and localities about
policies that may seem facial y neutral but could have discriminatory effects in violation of the
Fair Housing Act. These include policies regarding criminal background checks, local nuisance
ordinances that prohibit certain behaviors, and treatment of people with limited English
proficiency.
The following subsections describe HUD’s regulations regarding equal access to housing as wel
as several guidance documents HUD released during 2016.
HUD’s Equal Access to Housing Regulations
In 2012, HUD published a final rule providing for equal access to HUD housing programs
regardless of sexual orientation or gender identity.63 The Fair Housing Act does not expressly
protect individuals from discrimination based on sexual orientation or gender identity, and at the
time of the rule’s publication, HUD did not interpret discrimination based on sex to include
sexual orientation and gender identity. (In February 2021, HUD announced it would interpret
discrimination based on sex more expansively. See “A Brief Overview of the Fair Housing Act”.)
As a result, HUD issued the rule pursuant to its charge to ensure equal access to its programs, and
to provide “decent housing and a suitable living environment for every American family.”64
The regulations promulgated by the rule apply to al HUD housing programs, including loan
programs. Housing in these programs must be made available without regard to actual or
perceived sexual orientation, gender identity, or marital status.65 In addition, the rule provided that
property owners, program administrators, and lenders may not inquire about sexual orientation or
gender identity of an applicant for or occupant of HUD-insured or HUD-assisted housing.66
Application of Equal Access Rules to Emergency Shelters
The 2012 regulations contained an exception to the prohibition on inquiries into sex when an
individual is an applicant or occupant of temporary emergency shelter where there may be shared
bedrooms or bathrooms or to determine the number of bedrooms to which a family is entitled.
The exception resulted in a number of commenters to the proposed rule expressing concern about
transgender individuals’ ability to gain access to single-sex shelters in accordance with their
gender identity. While HUD noted that it was not mandating a policy on placement of transgender
persons, it said it would monitor how programs operate and issue additional guidance if
necessary.
2016 Final Rule: In February 2015, based on this monitoring, HUD followed up by issuing a
notice governing Community Planning and Development (CPD) programs—Community
Development Block Grants, HOME Investment Partnerships, Housing Opportunities for Persons
with AIDS, Emergency Solutions Grants, and the Continuum of Care program.67 In the notice,

63 U.S. Department of Housing and Urban Development, “Equal Access to Housing in HUD Programs Regardless of
Sexual Orientation or Gender Identity,” 77 Federal Register 5662-5676, February 3, 2012, https://www.govinfo.gov/
content/pkg/FR-2012-02-03/pdf/2012-2343.pdf.
64 77 Federal Register 5672.
65 24 C.F.R. §5.105(a)(2)(i).
66 77 Federal Register 5674.
67 U.S. Department of Housing and Urban Development, Notice CPD-15-02, Appropriate Placement for Transgender
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HUD clarified that it expected placement in single-sex shelters to occur in accordance with an
individual’s gender identity. HUD followed this notice, in November 2015, with a proposed rule
that would apply to HUD CPD programs.68 A final rule was released on September 21, 2016, and
was effective one month later.69
The final rule requires that placement in facilities with shared sleeping and/or bath
accommodations occur in conformance with a person’s gender identity. In addition, the final rule
removed the general prohibition in the 2012 regulation on asking questions about sexual
orientation and gender identity so that providers can ask questions to ensure they are complying
with the rule.70 The rule provides that individuals shal not be asked “intrusive” questions or
“asked to provide anatomical information or documentary, physical, or medical evidence of the
individual’s gender identity.”71 The final rule also updated the definition of gender identity as it
applies to al HUD programs and defined “perceived” gender identity.72
2020 Proposed Rule: On July 24, 2020, HUD released a proposed rule to make changes to the
2016 equal access rule. The proposed rule stated that HUD had reconsidered the 2016 rule’s
provisions, and that providers operating single-sex facilities should be able to consider biological
sex, and make their own determinations about biological sex, in making placement decisions,
without regard to gender identity.73 According to HUD, “the 2016 Rule impermissibly restricted
single-sex facilities in a way not supported by congressional enactment, minimized local control,
burdened religious organizations, manifested privacy issues, and imposed regulatory burdens.”74
The 2020 proposed rule was not made final.
HUD Guidance
In 2016, HUD released several guidance documents that inform housing providers and local
communities about policies and practices that may violate the Fair Housing Act by having a
discriminatory effect on members of a protected class. The guidance addresses how use of
criminal background checks, nuisance ordinances, and treatment of people with limited English
proficiency can potential y result in discrimination. The guidance discusses situations where

Persons in Single-Sex Em ergency Shelters and Other Facilities, February 20, 2015, https://www.hudexchange.info/
resources/documents/Notice-CPD-15-02-Appropriate-Placement-for-Transgender-Persons-in-Single-Sex-Emergency-
Shelters-and-Other-Facilities.pdf.
68 U.S. Department of Housing and Urban Development, “Equal Access in Accordance W ith an Individual’s Gender
Identity in Community Planning and Development Programs,” 80 Federal Register 72642, November 20, 2015,
https://www.govinfo.gov/content/pkg/FR-2015-11-20/pdf/2015-29342.pdf.
69 U.S. Department of Housing and Urban Development, “Equal Access in Accordance With an Individual’s Gender
Identity in Community Planning and Development Programs,” 81 Federal Register 64763-64782, September 21, 2016,
https://www.govinfo.gov/content/pkg/FR-2016-09-21/pdf/2016-22589.pdf.
70 Ibid., p. 64765.
71 Ibid., p. 64782.
72 81 Federal Register 64782. T he new definition of gender identity is “the gender with which a person identifies,
regardless of the sex assigned to that person at birth and regardless of the person’s perceived gender identity.”
Perceived gender identity is “the gender with which a person is perceived to identify based on that person’s appearance,
behavior, expression, other gender related characteristics, or sex assigned to the individual at birth or identified in
documents.”
73 U.S. Department of Housing and Urban Development, “Making Admission or Placement Determinations Based on
Sex in Facilities Under Community Planning and Development Housing Programs, ” 85 Federal Register 44811, July
24, 2020, https://www.govinfo.gov/content/pkg/FR-2020-07-24/pdf/2020-14718.pdf.
74 85 Federal Register 44812.
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discrimination could occur and the balancing test used to determine if policies or practices have a
discriminatory effect.
Disparate Impact
Each of the HUD guidance documents described in this section relies on a burden-shifting test for determining
discriminatory effects discrimination, which is also referred to as disparate impact discrimination. The test is
drawn from case law and HUD regulations published in 2013.75 In 2015, the Supreme Court added clarity to the
issue when it held that disparate impact claims are cognizable under the Fair Housing Act and outlined the burden-
shifting test that should be applied for assessing disparate impact discrimination claims. The burden-shifting test
applied by the Supreme Court was similar, but not identical, to the test outlined in HUD’s prior regulations and
guidance. In September 2020, HUD issued a new disparate impact rule modifying the one issued in 2013.76 HUD
stated that modifications were made to bring the rule into alignment with the Supreme Court decision as
understood by HUD.77 As of the date of this report, the 2020 disparate impact rule had not gone into effect
because a federal district court, as part of a legal chal enge to the rule, issued a preliminary injunction enjoining
HUD from implementing or enforcing the rule.78 President Biden has issued a memorandum directing HUD to
examine the effects of the 2020 disparate impact rule on HUD’s duty to comply with the Fair Housing Act.79 For
more information, see CRS Report R44203, Disparate Impact Claims Under the Fair Housing Act.
Use of Criminal Background Checks
In April 2016, HUD’s Office of General Counsel released guidance applying the Fair Housing
Act to use of criminal background checks in screening prospective tenants for housing.80 Unlike
HUD’s regulations regarding discrimination based on sexual orientation and gender identity, the
guidance is directed at al housing providers subject to the Fair Housing Act, not just HUD
programs. While individuals with a record of arrests or convictions are not protected under the
Fair Housing Act, HUD’s guidance noted that African American and Hispanic individuals are
disproportionately represented in the criminal justice system, and that screening for criminal
records could have discriminatory effect or disparate impact based on race or national origin,
which may be prohibited under the act.
HUD’s guidance on this issue states that, in screening for criminal history (including arrest
records), “arbitrary and overbroad criminal history-related bans are likely to lack a legal y
sufficient justification.”81 If a housing provider does take criminal history into account, HUD’s

75 U.S. Department of Housing and Urban Development, “Implementation of the Fair Housing Act ’s Discriminatory
Effects Standard,” 78 Federal Register 11459, February 15, 2013, https://www.govinfo.gov/content/pkg/FR-2013-02-
15/pdf/2013-03375.pdf. T he regulations were codified at 24 C.F.R. §100.500.
76 U.S. Department of Housing and Urban Development Act, “HUD’s Implementation of the Fair Housing Act ’s
Disparate Impact Standard,” 85 Federal Register 60288, September 24, 2020, https://www.govinfo.gov/content/pkg/
FR-2020-09-24/pdf/2020-19887.pdf.
77 U.S. Department of Housing and Urban Development, “HUD’s Implementation of the Fair Housing Act ’s Disparate
Impact Standard,” 84 Federal Register 42857, August 19, 2019, https://www.govinfo.gov/content/pkg/FR-2019-08-19/
pdf/2019-17542.pdf.
78 T he final rule is at 85 Federal Register 60288, September 24, 2020, https://www.govinfo.gov/content/pkg/FR-2020-
09-24/pdf/2020-19887.pdf. T he grant of the order of preliminary injunction was made in Massachusetts Fair Housing
Center and Housing Works, Inc. v. HUD, available at http://prrac.org/pdf/massachusetts-di-pl-decision.pdf.
79 U.S. President (Biden), “Redressing Our Nation’s and the Federal Government ’s History of Discriminatory Housing
Practices and Policies,” 86 Federal Register 7487-7488, January 26, 2021, https://www.govinfo.gov/content/pkg/FR-
2021-01-29/pdf/2021-02074.pdf.
80 U.S. Department of Housing and Urban Development, Office of General Counsel Guidance on Application of Fair
Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate -Related T ransactions,
April 4, 2016, https://portal.hud.gov/hudportal/documents/huddoc?id=HUD_OGCGuidAppFHAStandCR.pdf.
81 Ibid., p. 10.
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guidance states that the policy should be tailored to serve a “substantial, legitimate,
nondiscriminatory interest” and consider the particulars of an individual’s circumstances such as
type of crime and amount of time that has passed since a conviction occurred.82
Nuisance Ordinances and Victims of Crime, Including Domestic Violence
In September 2016, HUD released guidance about application of the Fair Housing Act to
nuisance ordinances that may result in victims of crime, particularly domestic violence, losing
their housing.83 So-cal ed nuisance ordinances, enacted at the local level, require property owners
to abate—to lessen or remove—a nuisance associated with their property. The types of activities
categorized as nuisances depend on jurisdiction, and may have to do with upkeep of the property
itself, but they can also include disruptive behavior, criminal activity, or cal s to law enforcement
that exceed a certain minimum number. Similarly, lease provisions may consider cal s to law
enforcement a lease violation, potential y resulting in eviction. As described in the HUD
guidance, cal s from victims of domestic violence to law enforcement can result in evictions after
landlords have been cited for violating nuisance ordinances for exceeding a minimum number of
cal s to law enforcement.84
The HUD guidance points out that a nuisance ordinance could have a discriminatory effect,
potential y violating the Fair Housing Act, if it is enforced disproportionately against victims of
domestic violence resulting in discrimination based on sex.85 In such a case, the burden would
shift to the government enforcing the nuisance ordinance to show that the nuisance ordinance is
necessary to achieve a substantial, legitimate, and nondiscriminatory interest, and that there is no
less-discriminatory alternative.
People with Limited English Proficiency
Another area of potential discrimination where HUD released guidance in 2016 is limited English
proficiency, with guidance released just days after that regarding nuisance ordinances.86 While the
Fair Housing Act does not prohibit discrimination based on the language someone speaks, it is
possible that this practice could have a discriminatory effect based on race or national origin.87
Language-related restrictions could include requiring that tenants speak English or turning away
tenants who do not speak English, particularly if low-cost translation services are available.88
If someone were to chal enge language-related restrictions, the same balancing test described in
the other HUD guidance would apply. If a policy or behavior is shown to have a discriminatory
effect, then the burden shifts to the housing provider to show that the practice is necessary to

82 Ibid.
83 U.S. Department of Housing and Urban Development, Office of General Counsel Guidance on Application of Fair
Housing Act Standards to the Enforcement of Local Nuisance and Crime-Free Housing Ordinances Against Victims of
Domestic Violence, Other Crime Victims, and Others Who Require Police or Emergency Services, September 13,
2016, https://portal.hud.gov/hudportal/documents/huddoc?id=FinalNuisanceOrdGdnce.pdf.
84 Ibid., pp. 3-5.
85 Ibid., p. 8.
86 U.S. Department of Housing and Urban Development, Office of General Counsel Guidance on Fair Housing Act
Protections for Persons with Lim ited English Proficiency, September 15, 2016, https://portal.hud.gov/hudportal/
documents/huddoc?id=lepmemo091516.pdf.
87 Ibid., p. 2.
88 Ibid., p. 4.
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serve a substantial, legitimate, nondiscriminatory interest, and that no less-discriminatory
alternative is available.
Affirmatively Furthering Fair Housing
In addition to prohibiting discrimination, the Fair Housing Act, since its inception, has required
HUD and other federal agencies that administer programs related to housing and urban
development to administer their programs in a way that affirmatively furthers fair housing.89
What “affirmatively further fair housing” means is not defined in statute. Various courts, in
decisions regarding HUD’s obligations, have concluded that it means more than refraining from
discrimination.90 For example, a federal court decision in 1973 interpreting the AFFH section of
the Fair Housing Act regarding residents of public housing stated
Action must be taken to fulfill, as much as possible, the goal of open, integrated residential
housing patterns and to prevent the increase of segregation, in ghettos, of racial groups
whose lack of opportunities the Act was designed to combat.91
A 1987 federal appel ate court decision looked at the legislative history of the Fair Housing Act,
saying that the “law’s supporters saw the ending of discrimination as a means toward truly
opening the nation’s housing stock to persons of every race and creed.” And with that goal in
mind, the court stated
This broader goal suggests an intent that HUD do more than simply not discriminate itself;
it reflects the desire to have HUD use its grant programs to assist in ending discrimination
and segregation, to the point where the supply of genuinely open housing increases.92
In addition to HUD, the AFFH requirement has also been applied, via statute, regulation, and
competitive grants, to recipients of HUD funding. The requirement applies to communities,
states, and insular areas that receive formula funds through the Community Development Block
Grant (CDBG), HOME Investment Partnerships, Housing Opportunities for Persons with AIDS
(HOPWA), and Emergency Solutions Grants (ESG) programs, as wel as to Public Housing
Authorities (PHAs) that administer both Public Housing and Section 8 programs.93 Applicants for
HUD’s competitive grants are required to certify that they wil affirmatively further fair housing
as part of the grant application process.94

89 42 U.S.C. §3608(d), (e)(5).
90 See, for example, NAACP v. HUD, 817 F.2d 149, 155 (1st Cir. 1987) (“Finally, every court that has considered the
question has held or stated that T itle VII imposes upon HUD an obligation to do more than simply refrain from
discriminating (and from purposefully aiding discrimination by others)”).
91 Otero v. New York City Housing Authority, 484 F.2d 1122, 1134 (2nd Cir. 1973).
92 NAACP v. HUD, 817 F.2d at 155.
93 Statutory requirements are at 42 U.S.C. §5304(b)(2) (CDBG) and 42 U.S.C. §1437c-1(d)(16) (Public Housing
Authorities). Regulations require recipients of HOME, HOPWA, and ESG funds to affirmatively further fair housing as
part of the consolidated planning process. See 24 C.F.R. §91.225, §91.325, and §91.425. Prior to the consolidated plan,
recipients were required to affirmatively further fair housing as part of the Comprehensive Housing Affordability
Strategy (P.L. 101-625).
94 See, for example, U.S. Department of Housing and Urban Development, General Administrative Requirements and
Term s for HUD Financial Assistance Awards, https://www.hud.gov/sites/dfiles/SPM/documents/
GeneralAdministrationRequirementsand%20T ermsforHUDAssistanceAwards2.pdf .
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Status of HUD AFFH Regulations
Over the years, HUD has enforced the AFFH requirement first through guidance, and then
through regulations. HUD’s AFFH regulations have changed under the previous two presidential
administrations. Prior to 2015, HUD had not issued regulations regarding AFFH, and instead
provided guidance for HUD grantees to follow, cal ed an Analysis of Impediments (AI). In 2015,
and again in 2020, HUD issued final rules governing the AFFH requirement. Below is a
chronology of the AFFH rulemaking process, resulting in subsequent sets of regulations. (For
more information about the details of each policy, including AI and AFFH, see Appendix B.)
 On July 16, 2015, HUD released an AFFH rule requiring states and communities
receiving HUD formula grants, as wel as PHAs, to affirmatively further fair
housing by conducting an Assessment of Fair Housing (AFH).95 The AFH
process was implemented and enforced for approximately two years (2016-
2017).
 On January 5, 2018, HUD issued a notice stating that it would delay
implementation of the AFFH rule for local governments receiving more than
$500,000 in CDBG funds until after October 31, 2020 (other jurisdictions were
not yet required to submit AFHs).96 On May 23, 2018, HUD issued several more
notices, the effect of which was to delay implementation of the 2015 rule
indefinitely and revert to the former process of affirmatively furthering fair
housing, the AI.97
 On January 14, 2020, HUD released a proposed AFFH rule.98 Before the rule
could be finalized, HUD issued a different final rule, on August 7, 2020, entitled
“Preserving Community and Neighborhood Choice.”99
 The 2020 final rule states that HUD need not go through the notice and comment
process normal y required of rulemaking under the Administrative Procedure Act
(APA) due to an APA exception for matters “relating to agency management or
personnel or to public property, loans, grants, benefits, or contracts.” The rule
took effect on September 7, 2020.
 On January 26, 2021, the Biden Administration issued a presidential
memorandum to HUD, directing the agency to “take al steps necessary to
examine the effects of the August 7, 2020, rule entitled ‘Preserving Community
and Neighborhood Choice’ … including the effect that repealing the July 16,

95 Department of Housing and Urban Development, “Affirmatively Furthering Fair Housing,” 80 Federal Register
42272, July 16, 2015, https://www.govinfo.gov/content/pkg/FR-2015-07-16/pdf/2015-17032.pdf.
96 U.S. Department of Housing and Urban Development, “Affirmatively Furthering Fair Housing: Extension of
Deadline for Submission of Assessment of Fair Housing for Consolidated Plan Participants” 83 Federal Register 683-
685, January 5, 2018, https://www.govinfo.gov/content/pkg/FR-2018-01-05/pdf/2018-00106.pdf.
97 See Appendix B, “HUD Decision to Delay Implementation of the 2015 AFFH Rule,” for citations to the three
notices.
98 U.S. Department of Housing and Urban Development, “Affirmatively Furthering Fair Housing,” 85 Federal Register
2041-2061, January 14, 2020, https://www.govinfo.gov/content/pkg/FR-2020-01-14/pdf/2020-00234.pdf.
99 U.S. Department of Housing and Urban Development, “Preserving Community and Neighborhood Choice,” 85
Federal Register 47899-47912, August 7, 2020, https://www.govinfo.gov/content/pkg/FR-2020-08-07/pdf/2020-
16320.pdf.
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2015, rule entitled ‘Affirmatively Furthering Fair Housing’ has had on HUD’s
statutory duty to affirmatively further fair housing.”100
Limited English Proficiency
In addition to administering fair housing programs and enforcing the law, FHEO oversees HUD’s
compliance with limited English proficiency (LEP) requirements to ensure that persons with
limited English proficiency have access to HUD programs. Title VI of the Civil Rights Act
prohibits discrimination in federal y assisted programs on the basis of race, color, or national
origin.101 One aspect of this prohibition has been ensuring that LEP individuals have access to
federal programs (lack of access may be considered discrimination based on national origin).102 In
2000, President Clinton signed an executive order to require federal agencies to publish guidance
for recipients of federal funding about ensuring that LEP individuals have access to programs and
services.103 In 2007, HUD issued final guidance to recipients of HUD funding about factors to
consider in meeting the needs of LEP clients.104
HUD’s guidance applies to al recipients of funding, including state and local governments,
PHAs, and for-profit and nonprofit housing providers, and also includes recipients that receive
funds indirectly, such as subgrantees of state CDBG or HOME grants. The guidance directs
recipients “to take reasonable steps to ensure meaningful access to their programs and activities
by LEP persons.”105 The guidance lays out four factors for recipients to consider in determining
how to serve LEP clients: (1) the number or proportion of LEP clients likely to be served or
encountered by the recipient, (2) how frequently eligible LEP persons are encountered by the
recipient, (3) the nature and importance of the program or service in people’s lives, and (4) the
recipient’s resources and the cost of LEP services.106
Depending on a recipient’s analysis of these factors, it may opt to provide translation services on
an as-needed basis by contracting with translation companies; or, if LEP clients are more
frequent, it may decide to hire either a translator or bilingual staff. Recipients may also decide to
have a wide number of documents translated or translate only the most critical documents.
Enforcement of LEP requirements occurs through such avenues as compliance reviews or
investigating complaints.107

100 T he White House (President Biden), “Redressing Our Nation’s and the Federal Government’s History of
Discriminatory Housing Practices and Policies,” presidential memorandum, 86 Federal Register 7487-7488, January
26, 2021, https://www.govinfo.gov/content/pkg/FR-2021-01-29/pdf/2021-02074.pdf.
101 42 U.S.C. §2000d.
102 See Department of Justice, “Guidance to Federal Financial Assistance Recipients Regarding T itle VI Prohibition
Against National Origin Discrimination Affecting Limited English Proficiency Persons,” 67 Federal Register 41457,
June 18, 2002, https://www.govinfo.gov/content/pkg/FR-2002-06-18/pdf/02-15207.pdf.
103 T he White House (President Clinton), “Improving Access to Services for Persons With Limited English
Proficiency,” Executive Order 13166, 65 Federal Register 50121-50122, August 16, 2000, https://www.govinfo.gov/
content/pkg/FR-2000-08-16/pdf/00-20938.pdf.
104 U.S. Department of Housing and Urban Development, “Final Guidance to Federal Financial Assistance Recipients
Regarding T itle VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons,”
72 Federal Register 2732, January 22, 2007, htt ps://www.govinfo.gov/content/pkg/FR-2007-03-16/pdf/E7-4794.pdf.
105 72 Federal Register, p. 2740.
106 Ibid.
107 Ibid., p. 2476. See also 28 C.F.R. §§42.106-42.107.
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Congress set aside $400,000 for HUD to translate materials as part of the FY2008 Consolidated
Appropriations Act (P.L. 110-161) and has continued to set aside funding since that time, ranging
from $300,000 to $500,000. Funding has been used to translate HUD documents, provide
translation services at HUD events, provide phone translations for cal ers to HUD, and acquire
technology, among other services.108
Section 3, Economic Opportunities for Low- and Very Low-Income Persons
Until November 30, 2020, FHEO oversaw HUD’s Section 3 program, through which Public and Indian Housing
Authorities and grant recipients of HUD housing and community development construction or rehabilitation funds
are to provide employment and training opportunities for low- and very low-income persons, particularly those
residing in assisted housing. After release of new Section 3 regulations, on September 29, 2020, the offices
overseeing HUD’s programs that are subject to Section 3 wil oversee the program’s requirements and FHEO is
no longer involved.109

108 U.S. Department of Housing and Urban Development, FY2015 Budget Justifications, p. D-8, http://portal.hud.gov/
hudportal/documents/huddoc?id=fy15cj_fair_hsng_prog.pdf.
109 U.S. Department of Housing and Urban Development, “Enhancing and Streamlining t he Implementation of Section
3 Requirements for Creating Economic Opportunities for Low- and Very Low-Income Persons and Eligible
Businesses,” 85 Federal Register 61524, 61567, September 29, 2020, https://www.federalregister.gov/documents/2020/
09/29/2020-19185/enhancing-and-streamlining-the-implementation-of-section-3-requirements-for-creating-economic.
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Appendix A. FHAP and FHIP Funding Table
The table below shows FHAP and FHIP funding from FY1996 to the present.
Table A-1. Funding for FHAP and FHIP, FY1996-FY2021
(Dol ars in mil ions)
Fair Housing Assistance Program
Fair Housing Initiatives Program

(FHAP)
(FHIP)
President’s
President’s
Fiscal Year
Budget Request
Appropriation
Budget Request
Appropriation
1996
15.0
13.0
30.0
17.0
1997
15.0
15.0
18.0
15.0
1998
15.0
15.0
24.0
15.0
1999
23.0
16.5
29.0
23.5
2000
20.0
20.0
27.0
24.0
2001
21.0
22.0
29.0
23.9
2002
23.0
25.6
22.9
20.3
2003
25.6
25.5
20.3
20.1
2004
29.8
27.6
20.3
20.1
2005
27.1
26.3
20.7
19.8
2006
22.7
25.7
16.1
19.8
2007
24.8
25.7
19.8
19.8
2008
24.8
25.6
20.2
24.0
2009
25.0
25.5
26.0
27.5
2010
29.5
29.0
42.5
42.1a
2011
28.2
28.7
32.3
42.0
2012
29.5
28.0
42.5
42.5
2013
24.6
26.6
41.1
40.3
2014
24.6
24.1
44.1
40.1
2015
23.3
23.3
45.6
40.1
2016
23.3
24.3
45.6
39.2
2017
21.9
24.3
46.0
39.2
2018
24.3
23.9
39.2
39.6
2019
24.3
23.9
36.2
39.6
2020
24.3
25.0b
36.2
46.0b
2021
23.9
24.4
39.6
66.3c
Sources: HUD Congressional Budget Justifications for FY1996-FY2021; the explanatory materials accompanying
the FY2020 Further Consolidated Appropriations Act, P.L. 116-94, at http://docs.house.gov/bil sthisweek/
20191216/BILLS-116HR1865SA-JES-DIVISION-H.pdf; the Coronavirus Aid, Relief, and Economic Security
(CARES) Act, P.L. 116-136; the explanatory materials accompanying the FY2021 Consolidated Appropriations
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Act (P.L. 116-260 ) at https://docs.house.gov/bil sthisweek/20201221/BILLS-116RCP68-JES-DIVISION-L.pdf; and
the American Rescue Plan Act (P.L. 117-2).
Notes: Amounts for the President’s FY2010 and FY2011 budget requests do not include funding proposed for
the Transformation Initiative.
a. The President’s budget request for FY2010 included additional FHIP funding to address mortgage fraud.
While Congress appropriated additional funds for FHIP, the conference report stated “the conferees do not
propose a separate set-aside for work on mortgage rescue scams as proposed by the Senate since these
activities are already being funded as part of the program.” See H.Rept. 111-366.
b. The FY2020 Further Consolidated Appropriations Act appropriated $23.5 mil ion and $45.0 mil ion for
FHAP and FHIP, respectively. The CARES Act provided an additional $1.5 mil ion for FHAP and $1.0 mil ion
for FHIP.
c. The FY2021 Consolidated Appropriations Act provided $46.3 mil ion for FHIP. An additional $20 mil ion
was appropriated for the program in FY2021 as part of the American Rescue Plan Act.

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Appendix B. Chronology of AFFH Proposed and
Final Rules, 2015-2020
For a number of years, to fulfil the
The Consolidated Plan
requirement to affirmatively further fair
Every three to five years, states and localities that
housing (AFFH), HUD required that certain
receive HUD formula grants must submit a
grantees go through a process cal ed an
consolidated plan to HUD for approval. The plan is an
Analysis of Impediments (AI). The grantees
assessment of affordable housing and community
development needs. The process for developing the
required to go through the process were states
consolidated plan must involve consultation with
and localities that receive formula funding
housing and services providers and al ow for citizen
through the CDBG, HOME, HOPWA, and
participation. Three of the four AFFH methods
ESG programs, as wel as PHAs. The
described in this appendix use, or proposed to use, the
jurisdictions receiving formula grants were to
consolidated plan as the way in which communities
certify that they have complied with the AFFH
go through the AI process as part of the
requirement.
consolidated planning process that they
participate in to receive the grants, and PHAs as part of their PHA plan.110
On July 16, 2015, HUD issued a final AFFH rule changing the process through which formula
grantees and PHAs were to affirmatively further fair housing, a process cal ed the Assessment of
Fair Housing (AFH). However, in May 2018 HUD indefinitely delayed implementation of the
rule and directed grantees to resume the AI process. The agency released a new proposed AFFH
rule in January 2020, but ultimately adopted a completely different final rule, published in August
2020, and which took effect on September 8, 2020. This appendix describes each of these four
methods for affirmatively furthering fair housing: the AI, the 2015 AFFH rule, the 2020 proposed
AFFH rule, and the 2020 final rule.
Analysis of Impediments (AI)
Prior to release of the 2015 final AFFH rule, the regulations governing the consolidated planning
process required HUD formula grantees to use the AI process to identify impediments to fair
housing choice and suggest steps for addressing them.111 Regulations governing PHA annual
plans contained similar language.112
Through a report issued in 1996, the Fair Housing Planning Guide, HUD defined impediments to
fair housing choice as “Any actions, omissions, or decisions taken because of race, color, religion,
sex, disability, familial status, or national origin which restrict housing choices or the availability
of housing choices,” as wel as those having the effect of restricting housing choice and
availability.113 Grantees were to identify impediments using local information and data. The guide

110 Consolidated plan requirements are at 24 C.F.R. §91.1(a). PHAs submit annual and five-year plans. Part of the
annual plan is a certification that PHAs will affirmatively further fair housing, http://portal.hud.gov/hudportal/
documents/huddoc?id=HUD-50077-CR-2-10.pdf.
111 See 2014 regulations for CDBG entitlement communities at 24 C.F.R. §570.601. Regulations for the consolidated
plan process are the 2014 versions of 24 C.F.R. §91.225 (local governments), §91.325 (state governments), and
§91.425 (consortia applicants).
112 24 C.F.R. §903.7(o) (2014).
113 U.S. Department of Housing and Urban Development, Fair Housing Planning Guide Volume 1, March 1996, p. 2-8,
https://www.hud.gov/sites/documents/FHPG.PDF (hereinafter, Fair Housing Planning Guide Volum e 1 ).
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also suggested steps a recipient community could take to address impediments. Recipients were
to keep written records of their analysis and actions taken as a result of the analysis.
HUD expected grantees to use data in their analysis, but did not provide the data.114 HUD
encouraged grantees to communicate the findings to government officials, policymakers,
community groups, and the general public, but there was no public process required for AIs, and
results of an AI were not required to be made public.115 There was also no requirement that
materials be submitted to HUD.116 Grantees were to submit a summary of the AI and any
accomplishments with the consolidated plan, and to complete or update an AI every three to five
years (depending on when the consolidated plan was due).117
Both HUD, in a report issued in 2009, and the Government Accountability Office, in a report
issued in 2010, found weaknesses in the AI process.118 They found that AIs were outdated and
that quality was uneven. GAO reported that among current AIs, many lacked timelines for
accomplishing goals. A limitation identified by GAO as contributing to the problems was that
regulations included very few requirements regarding AIs, with most procedures suggested in
HUD guidance. GAO recommended that HUD issue a new regulation governing AFFH and
include standards and a format for grantees to follow, require grantees to include time frames for
implementing their recommended changes, and require grantees to submit their plans to HUD.119
2015 Final AFFH Rule: The Assessment of Fair Housing (AFH)
The 2015 final AFFH rule put in place detailed regulations that were to govern the AFFH process.
The rule defined more specifical y what AFFH means and provided for a new process cal ed an
Assessment of Fair Housing (AFH) instead of the AI. Further, HUD was to provide data for
grantees (referred to in the rule as “program participants”) to use in preparing their AFHs and to
publish tools to help program participants through the AFH process. Program participants also
were to submit and have their AFHs approved by HUD.
AFH Requirements
The AFFH rule defined “affirmatively furthering fair housing” as
taking meaningful actions, in addition to combating discrimination, that overcome patterns
of segregation and foster inclusive communities free from barriers that restrict access to
opportunity based on protected characteristics. Specifically, affirmatively furthering fair
housing means taking meaningful actions that, taken together, address significant
disparities in housing needs and in access to opportunity, replacing segregated living
patterns with truly integrated and balanced living patterns, transforming racially and
ethnically concentrated areas of poverty into areas of opportunity, and fostering and

114 Fair Housing Planning Guide Volume 1, pp. 2-9 to 2-10.
115 Fair Housing Planning Guide Volume 1, p. 2-21.
116 Fair Housing Planning Guide Volume 1, p. 2-24.
117 Fair Housing Planning Guide Volume 1, p. 2-6.
118 U.S. Department of Housing and Urban Development, Office of Policy Development and Research, Analysis of
Im pedim ents Study: Draft, January 27, 2009, https://ia801002.us.archive.org/20/items/365748-hud-reporting-
compliance-report/365748-hud-reporting-compliance-report.pdf; and U.S. Government Accountability Office, Housing
and Com m unity Grants: HUD Needs to Enhance Its Requirem ents and Oversight of Jurisdictions’ Fair Housing Plans,
GAO-10-905, September 2010, http://www.gao.gov/new.items/d10905.pdf.
119 GAO, Housing and Community Grants: HUD Needs to Enhance Its Requirements and Oversight of Jurisdictions’
Fair Housing Plans, pp. 32-33.
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maintaining compliance with civil rights and fair housing laws. The duty to affirmatively
further fair housing extends to all of a program participant’s activities and programs
relating to housing and urban development.120
Program participants were to comply with the AFFH requirement by completing an AFH. The
AFH included several steps that program participants were to take:121
 Summarizing the extent to which fair housing actions have taken place in the
jurisdiction (e.g., lawsuits, enforcements actions, settlements, judgments), an
assessment of compliance with laws and regulations, and the jurisdiction’s fair
housing outreach and enforcement capacity.
 Identifying fair housing issues, including
o Segregation or lack of integration for any protected class. Segregation
was measured using a dissimilarity index showing the extent to which
the distribution of groups differs across Census tracts.122
o Racially or ethnically concentrated areas of poverty. These are areas
with a nonwhite population of 50% or more and a poverty rate that
exceeds 40% or is three or more times the average tract poverty rate for
the metropolitan/micropolitan area, whichever threshold is lower.123
o Significant disparities in access to opportunity for any protected class.
There were five areas of opportunity that program participants were to
evaluate: education, employment, transportation, low-poverty exposure,
and environmental y healthy neighborhood opportunities.124
o Disproportionate housing needs for any protected class. This included
being housing cost burdened, experiencing overcrowding, or living in
substandard housing.125
 Identifying factors that contribute to the fair housing issues and prioritizing them
based on the extent to which they affect fair housing choice. HUD listed possible
contributing factors for each of the four categories of fair housing issues in
assessment tools published subsequently.126 The list was lengthy and included
many possible factors such as lack of access to financial services, community
opposition to affordable housing, zoning laws, lack of accessibility features in a
neighborhood for people with disabilities, etc.
 Setting goals for overcoming the effects of contributing factors. Program
participants were to include strategies and actions they would take to achieve
their goals in their consolidated and PHA Plans.

120 80 Federal Register 42353.
121 80 Federal Register 42355.
122 HUD, Affirmatively Furthering Fair Housing (AFFH) Data Documentation, p. 11, https://www.hudexchange.info/
resources/documents/AFFH-Data-Documentation.pdf.
123 Ibid., p. 9.
124 Assessment of Fair Housing T ool for entitlement communities, pp. 3 -5, https://www.hudexchange.info/resources/
documents/Assessment -of-Fair-Housing-T ool.pdf.
125 80 Federal Register 42354.
126 See, for example, http://www.huduser.org/portal/sites/default/files/pdf/AFFH_AssessmentT ool_OptionA.pdf.
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The rule provided that program participants were to conduct the analysis for the programs they
administer, the jurisdiction, and the region.127 HUD encouraged program participants to
collaborate on an AFH.128 For example, PHAs located within a CDBG entitlement area could
work with each other or together with the city/county receiving CDBG funds. Program
participants were to ensure that members of the community had the opportunity to participate in
the AFH by communicating in a way to reach the broadest possible audience.129
Assessment Tool
Under the 2015 final rule, HUD was to provide data to help program participants identify fair
housing issues, and an assessment tool to prompt program participants to think about issues and
contributing factors.
In the months following the publication of the 2015 final rule, HUD issued final assessment tools
for entitlement communities and PHAs, while tools for states and insular areas were in the
comment period. The assessment tools were to be used by program participants in completing the
AFH, and were meant to help them work through the process.130 While there were different tools
for each category of program participant, the content was similar.
The assessment tools provided instructions to program participants as they completed each
portion of the AFH. For example, the assessment tools directed program participants how to
access and use HUD data for determining whether fair housing issues exist (such as segregation
and racial y or ethnical y concentrated areas of poverty) and prompted program participants for
information about these issues. The assessment tools also contained comprehensive lists of
possible contributing factors to fair housing issues.
HUD Decision to Delay Implementation of the 2015 AFFH Rule
On January 5, 2018, approximately two and a half years after releasing the final AFFH rule, HUD
issued a notice stating that it would extend the deadline for local governments receiving more
than $500,000 in CDBG funding to submit their AFHs until after October 31, 2020.131 Under the
rule, these local governments had begun submitting AFHs starting in 2016. (At the time of
HUD’s notice, these jurisdictions were the only ones required to submit AFHs.)
Prior to HUD issuing the notice, 49 local governments had submitted AFHs, 17 of which were not
initial y approved.132 HUD reasoned that “[b]ased on the initial AFH reviews, HUD believes that
program participants need additional time and technical assistance to adjust to the new AFFH
process and complete AFH submissions that can be accepted by HUD.”133

127 80 Federal Register 42355.
128 80 Federal Register 42356.
129 80 Federal Register 42357.
130 80 Federal Register 42352, definition of assessment t ool.
131 U.S. Department of Housing and Urban Development, “Affirmatively Furthering Fair Housing: Extension of
Deadline for Submission of Assessment of Fair Housing for Consolidated Plan Participants” 83 Federal Register 683-
685, January 5, 2018, https://www.govinfo.gov/content/pkg/FR-2018-01-05/pdf/2018-00106.pdf.
132 U.S. Department of Housing and Urban Development, “Affirmatively Furthering Fair Housing: Withdrawal of the
Assessment T ool for Local Governments,” 83 Federal Register 23922, 23923, May 23, 2018,
https://www.govinfo.gov/content/pkg/FR-2018-05-23/pdf/2018-11146.pdf.
133 83 Federal Register 684.
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On May 23, 2018, HUD issued three more notices. The effect of the notices was to suspend
indefinitely the implementation of the 2015 final rule and return to the AI process. The three
notices did the following: (1) withdrew the January 5, 2018, notice that delayed implementation
of the 2015 final rule for local governments until after October 31, 2020;134 (2) withdrew the final
assessment tool for local governments, which had been released on January 13, 2017;135 and (3)
directed program participants that had not already submitted an AFH under the 2015 final rule to
comply with the previous requirements, the AI.136
In withdrawing the local government assessment tool, HUD delayed the AFH submission dates
for those entities indefinitely. This was because, as required by the 2015 final rule, AFH
submission dates were to be delayed to al ow at least nine months between publication of the final
assessment tool and the AFH due date.137 HUD stated that it withdrew the assessment tool
because it had identified “significant deficiencies” that made it “unduly burdensome” for program
participants to use.138 The notice also contended that HUD did not have the personnel to provide
technical assistance to al of the jurisdictions that would need to use the tool and complete an
AFH. As a result, the notice provided that HUD would produce a “more effective and less
burdensome” tool and that it would accept information and recommendations from the public on
improving the tool.139
2020 AFFH Rule
On January 14, 2020, less than five years after the 2015 final rule was published, HUD released a
new proposed AFFH rule.140 The 2020 proposed rule was open for comment until March 16,
2020. Instead of responding to comments and issuing a final rule based on the proposal, HUD
issued a different final rule on August 7, 2020, cal ed “Preserving Community and Neighborhood
Choice.”141 In addition, HUD declared that the 2020 final rule was not subject to the
Administrative Procedure Act notice-and-comment rulemaking process, a departure from HUD
policy.142 As a result, the 2020 final rule became effective on September 8, 2020, 30 days after its
publication, without the opportunity for the public to respond.

134 U.S. Department of Housing and Urban Development, “Affirmatively Furthering Fair Housing: Withdrawing of
Notice Extending the Deadline for Submission of Assessment of Fair Housing for Consolidated Plan Participants,” 83
Federal Register 23928, May 23, 2018, https://www.govinfo.gov/content/pkg/FR-2018-05-23/pdf/2018-11143.pdf.
135 U.S. Department of Housing and Urban Development, “Affirmatively Furthering Fair Housing: Withdrawal of the
Assessment T ool for Local Governments,” 83 Federal Register 23922, May 23, 2081, https://www.govinfo.gov/
content/pkg/FR-2018-05-23/pdf/2018-11146.pdf.
136 U.S. Department of Housing and Urban Development, “Affirmatively Furthering Fair Housing (AFFH):
Responsibility to Conduct Analysis of Impediments,” 83 Federal Register 23927, May 23, 2018,
https://www.govinfo.gov/content/pkg/FR-2018-05-23/pdf/2018-11145.pdf.
137 80 Federal Register 42357.
138 83 Federal Register 23923.
139 83 Federal Register 23926.
140 U.S. Department of Housing and Urban Development, “ Affirmatively Furthering Fair Housing,” 85 Federal
Register 2041-2061, January 14, 2020, https://www.govinfo.gov/content/pkg/FR-2020-01-14/pdf/2020-00234.pdf.
141 U.S. Department of Housing and Urban Development, “Preserving Community and Neighborhood Choice,” 85
Federal Register 47899-47912, August 7, 2020, https://www.govinfo.gov/content/pkg/FR-2020-08-07/pdf/2020-
16320.pdf.
142 T he final rule stated that the APA exemption applying to matters “relating to agency management or personnel or to
public property, loans, grants, benefits, or contracts” meant that rulemaking was not n ecessary because AFFH
obligations apply to HUD grantees. 85 Federal Register 47904.
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This subsection describes both the proposed and final 2020 rules.
Proposed Rule
The 2020 proposed rule would have defined AFFH as “advancing fair housing choice within the
program participant’s control or influence.”143 The proposal further defined “fair housing choice.”
Fair housing choice means, within a HUD program participant’s sphere of influence, that
individuals and families have the opportunity and options to live where they choose, within
their means, without unlawful discrimination related to race, color, religion, sex, familial
status, national origin, or disability. Fair housing choice encompasses: (i) Protected choice,
which means access to housing without discrimination; (ii) Actual choice, which means
not only that affordable housing options exist, but that information and resources are
available to enable informed choice; and (iii) Quality choice, which means access to
affordable housing options that are decent, safe, and sanitary, and, for persons with
disabilities, access to accessible housing as required under civil rights laws.
HUD formula grantees would have been required to certify that they had satisfied AFFH
requirements as part of their consolidated plans. PHAs would have certified, through their PHA
plan, that they had consulted with the jurisdiction receiving formula grants during the
consolidated planning process.
Formula grantee certification would have consisted of listing three fair housing goals to
accomplish or obstacles to overcome, along with an explanation of how addressing these
goals/obstacles would AFFH.144 If the goals or obstacles were considered an “inherent barrier” to
fair housing choice (as identified in a list provided by HUD), then a jurisdiction would be
considered to satisfy the rule’s requirement simply by listing them.
The list of inherent barriers to fair housing choice proposed by HUD covered a variety of
potential activities.145 With the exception of housing accessible to persons with disabilities, none
of the inherent barriers referred to activities or outcomes that specifical y affect classes protected
by the Fair Housing Act.
 Some barriers on the list related to the availability, accessibility, and quality of
housing (e.g., “lack of a sufficient supply of decent, safe, sanitary, and
accessible” affordable housing).
 Others included regulations related to housing development such as design,
building, environmental, and labor standards (e.g., “unduly burdensome wetland
or environmental regulations”).
 Two inherent barriers on the list specifical y related to rent (source of income
restrictions on rental housing and rental control).
 In addition, while not on the list, the proposed rule provided that “jurisdictions
should feel free to examine their State or local zoning laws and may determine
that modifying these provisions is how they can best AFFH.”146
Under the 2020 proposed rule, HUD would not have evaluated grantees’ efforts to AFFH based
on their list of fair housing goals/obstacles. Instead, HUD would have ranked grantees based on

143 85 Federal Register 2053.
144 85 Federal Register 2056.
145 T he list of inherent barriers are at 85 Federal Register 2057-2058.
146 85 Federal Register 2046.
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their “supply of affordable and available quality housing for rent and for sale” as measured by
publicly available data sources.147 HUD proposed that highly ranked grantees would qualify for
additional points in HUD’s competitive grant programs while low-ranked grantees could have
their AFFH certification cal ed into question.148
Final Rule
The 2020 final rule, issued on August 7, 2020, differed markedly from the 2020 proposed rule.
The 2020 final rule defines the terms “fair housing” and “affirmatively further” separately.
 The phrase ‘‘fair housing’’ means housing that, among other attributes, is
affordable, safe, decent, free of unlawful discrimination, and accessible as
required under civil rights laws.
 The phrase ‘‘affirmatively further’’ means to take any action rational y related to
promoting any attribute or attributes of fair housing as defined in the preceding
subsection.
To satisfy the AFFH requirement, HUD formula grant recipients are to certify that they have
taken any action rational y related to “promoting one or more attributes of fair housing” as
defined in the rule. AFFH certification is to be included in grantees’ consolidated plans, but the
2020 final rule does not indicate whether grantees are required to submit specific documentation,
or if certification itself is sufficient. Unlike the 2015 final rule, there are no separate processes for
public participation. Grantees submitting consolidated plans are to consult with PHAs about a
number of issues, including AFFH, but PHAs are not otherwise required to participate.
Table B-1. Comparison of AFFH Processes
2015 Rule
Assessment
Analysis of
of
2020
Impediments
Fair Housing
Proposed
2020 Final
Element of Plan
(AI)
(AFH)
Rule
Rule
The process is governed by
regulations rather than HUD

X
X
X
guidance.
AFFH takes place via a process
separate from consolidated planning,

X

requiring separate public
participation.
HUD provides uniform data to
program participants.

X

Data required to be considered
includes segregation based on
X
X

protected category.
Program participants are required to
X
X
X

identify barriers to fair housing.
Program participants are required to
propose steps to overcome barriers
X
X

to fair housing.

147 85 Federal Register 2053.
148 85 Federal Register 2054.
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AFFH reports are submitted to
HUD.

X

AFFH reports are made publicly
available.

X

HUD evaluates proposals to address

X
a

barriers to fair housing.
Sources: CRS analysis of U.S. Department of Housing and Urban Development, “Affirmatively Furthering Fair
Housing,” 80 Federal Register 42272-42371, July 16, 2015; and U.S. Department of Housing and Urban
Development, Fair Housing Planning Guide Volume 1, March 1996, https://www.hud.gov/sites/documents/
FHPG.PDF.
a. The 2020 proposed rule would have evaluated grantees based on publicly available affordable housing data.

Author Information

Libby Perl

Specialist in Housing Policy

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should n ot be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
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