On December 10, 2025, the U.S. Department of Justice (DOJ) issued a final rule rescinding parts of its Title VI regulations that had long allowed enforcement actions based on disparate impact—policies that are neutral on their face but disproportionately harm protected classes. The rule officially eliminates disparate-impact liability under the DOJ’s Title VI enforcement framework, limiting federal enforcement to cases of intentional discrimination.
This regulatory change marks a significant shift in civil rights enforcement philosophy and has profound implications for fair housing protections nationwide.
What the Final Rule Does
The DOJ rule amends 28 CFR § 42.104 by removing several provisions that barred discriminatory practices, even when discriminatory intent could not be proven. Specifically, the rule:
- Removes the broad ban on policies that “have the effect” of discriminating based on race, color, or national origin.
- Removes language related to disparate impact in site selection, facility location, and employment practices.
- Rescinds affirmative-action provisions related to addressing discriminatory effects.
- Confirms that the DOJ will no longer pursue disparate-impact claims under Title VI against recipients of federal financial assistance.
The DOJ justifies these changes by citing Supreme Court precedent that holds Title VI bans only intentional discrimination and by arguing that enforcement based on disparate impact raises constitutional and policy issues.
Why Disparate Impact Has Always Been Important in Fair Housing
Disparate impact has long been a key tool in fair housing enforcement—not because landlords or owners are always acting maliciously, but because discrimination often manifests through policy choices rather than overt bias.
Many exclusionary outcomes in housing arise from:
- Occupancy standards
- Criminal background screening
- Income or credit thresholds
- Residency preferences
- Zoning-driven site selection
- Refusal to accept alternative forms of income
While some disparate impacts are genuinely unintended, the reality—especially in housing—is that owners and landlords often implement policies fully aware that certain groups will be disproportionately excluded, while avoiding explicit discriminatory language. Disparate-impact analysis has traditionally been the tool regulators and courts use to address these outcomes when intent is carefully concealed.
Removing disparate-impact liability doesn’t eliminate discriminatory outcomes. It just makes them more difficult to challenge.
Intentional Discrimination Sets a High Standard—and That’s the Point
By limiting enforcement to cases of deliberate discrimination, the DOJ has raised the evidentiary standard in fair housing cases. Demonstrating intent requires direct or circumstantial evidence of motive—emails, statements, admissions, or patterns so clear that they allow no other explanation.
In practice, sophisticated housing operators seldom leave that kind of trail.
Disparate-impact standards recognize a simple truth: outcomes matter. If a policy predictably and unjustifiably excludes protected classes, fair housing law has historically allowed regulators to inquire why—and whether less discriminatory options existed.
This rule eliminates that inquiry from the DOJ’s Title VI toolkit.
A Wider Pullback from Aggressive Fair Housing Enforcement
This rule does not stand alone. It aligns with—and strengthens—the current administration’s clear aim of not actively enforcing federal civil rights laws, especially when doing so would require examining structural or systemic discrimination.
The rule explicitly relies on Executive Order 14281, which states that it is U.S. policy to eliminate disparate-impact liability “to the maximum degree possible.”
The DOJ itself acknowledges that enforcement of disparate-impact claims has been “minimal and sporadic” for years and confirms that this rule formalizes that retreat.
In plain terms: this is not about clarifying the law. It is about narrowing enforcement.
What This Means for Housing Providers
Housing providers should not mistake this rule for a green light.
- The Fair Housing Act’s disparate-impact standard remains intact unless and until Congress or the courts say otherwise.
- State and local fair housing laws may still impose disparate-impact liability.
- HUD enforcement policies might differ from the DOJ’s Title VI stance (though this is unlikely with the current HUD leadership).
- Private litigation remains a risk in jurisdictions that recognize disparate impact.
Furthermore, policies intentionally designed to exclude protected groups—whether or not they are labeled “business necessity”—are still illegal. The lack of vigorous federal enforcement does not make bad policies lawful.
Final Thought: Compliance Remains a Choice
Fair housing compliance has never been about just meeting the minimum requirements to avoid penalties. It has always been about understanding how policies work in real life and prioritizing fairness over convenience.
This rule limits accountability but does not alter reality.
Owners and operators who knowingly enforce exclusionary policies might feel safer now, but history shows that swings happen, administrations change, and enforcement priorities shift back. Covering up unequal outcomes has never aged well.
The smart money still favors doing fair housing the right way.
For questions about fair housing risk, policy review, or compliance strategy in this evolving enforcement landscape, contact A. J. Johnson Consulting Services.