On September 16 and 17, HUD issued memoranda that withdrew guidance on several fair housing topics, including assistance animals.

The memoranda indicated that new guidance will only be forthcoming as necessary and only if it reduces compliance burdens.

What does it all mean?

First and foremost, it does not alter the underlying federal and state fair housing laws (statutes and regulations) with which housing providers must comply. Housing providers must, for example, process reasonable accommodation requests for individuals who have a disability, including requests for exceptions to a “no pet” policy to have an assistance animal.

What does it mean for assistance animal requests?

The withdrawal means that those HUD memoranda are no longer official guidance for residents or housing providers on how to address assistance animal requests. For those familiar with the prior 2013 and 2020 guidance, they covered, among other topics, what documentation housing providers could request from a resident or prospective resident and how to process/handle assistance animal requests. HUD is essentially saying that it will not actively pursue or penalize housing providers who do not follow what is now withdrawn guidance. However, as stated above, while a housing provider is not required to follow withdrawn guidance (and guidance is just that -- direction – it is not a mandatory procedure and did not carry the force or weight of the law), it is important to reiterate that the underlying obligations under state and federal law still exist.

Housing providers may also consider that while the federal guidance on this topic from HUD is no longer effective, some of the guidance may be good practice or may be similar to information that the Commonwealth publishes and that guidance may still carry persuasive value with state administrative agencies like the Massachusetts Commission Against Discrimination (MCAD) or in the state courts.

What does it mean that HUD will not use or enforce cases reliant on disparate impact theory?

The courts have recognized two theories for proving housing discrimination, one based on intent, and the other based on outcome. This means that housing discrimination can be proven in two ways (1) through demonstrating that a housing provider has engaged in intentional discriminatory conduct that has deprived an individual of housing and/or housing benefits; or (2) by demonstrating that a practice, policy or rule that is facially neutral caused a disproportionate adverse effect on a protected group in terms of accessing housing and/or housing benefits (this is known as disparate impact theory). Under a disparate impact theory, a plaintiff (housing resident or applicant) does not need to prove the housing provider intended to discriminate; instead, they can produce evidence that the otherwise facially neutral or conduct had a disproportionately negative effect or impact on a protected class and an alternative practice with a lesser discriminatory impact existed.

The Supreme Court (and the First Circuit before it) upheld that disparate impact is a viable theory (and/or evidence standard) under the Fair Housing Act for establishing a housing discrimination case.

While HUD as the agency charged with enforcement of federal fair housing laws may not actively pursue enforcement of discrimination cases that are focused on outcome rather than intent, an individual or group of individuals can still bring a private cause of action or file a state administrative complaint that is reliant on disparate impact theory; it is still good law.

How does the guidance change use of criminal record history information in housing?

This primarily impacts use of criminal record history as a tenant screening tool. Prior HUD guidance advised against blanket bans on individuals with a criminal record history and emphasized an individualized assessment of the individual’s housing application. This guidance has now been withdrawn and will not be enforced by HUD. One reason this guidance came out in the first place was to address that certain protected classes are arrested and incarcerated at higher rates and that excluding someone from housing based on arrest and/or criminal record history thus has a disproportionate impact on protected classes. Like “ban the box” legislation pertaining to employment applications, the idea was to open opportunities that might otherwise be closed based on a single response about a past interaction with the criminal justice system. As set forth above, HUD is de-prioritizing enforcement of discrimination cases based on disparate impact theory. This, however, does not change the law or the priorities of state enforcement agencies.

Does the HUD rule change gender identity protection?

HUD has effectively halted enforcement of cases of discrimination based on gender identity. This move, coming before the September 2025 guidance, is the subject of legal challenge. However, gender identity remains a distinct protected class under Massachusetts state law and Massachusetts state agencies have not indicated any intent to halt enforcement.

Why did HUD withdraw the guidance?

HUD indicated that, at least as to certain areas of guidance withdrawn, that the prior guidance improperly created, or appeared to create, new or additional legal responsibilities or requirements on housing providers beyond the scope of the law.

In the case of rejecting disparate impact theory cases, HUD indicated that disparate impact theory improperly requires housing providers to consider race in their otherwise neutral policies.

Is there new guidance from HUD?

Not yet. HUD did not replace the withdrawn guidance with new guidance and may not. The memoranda indicated that new guidance will only be forthcoming as necessary and only if it reduces compliance burdens.

For more information, please see the following:

Fair Housing Act Enforcement and Prioritization of Resources

Notice of the Withdrawal of FHEO Guidance Documents