SharePresident Biden recently issued several actions related to ending discrimination and promoting fair housing and equal opportunity for all Americans. Included in these was the January 20,2021, Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation and the January 26, 2021, Memorandum on Redressing Our Nation's and the Federal Government's History of Discriminatory Housing Practices and Policies.
Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation
The executive order directs heads of federal agencies to examine previous agency actions and promulgate new actions to ensure that statutes prohibiting sex discrimination, including the Fair Housing Act, are implemented consistent with the Supreme Court's 2020 holding in Bostock v. Clayton County.
In Bostock, the Supreme Court held that the prohibition on discrimination "because of sex" in Title VII of the Civil Rights Act of 1964 encompasses discrimination based on sexual orientation and gender identity.
The order directs federal agencies to interpret all civil rights laws, including the Fair Housing Act, that include a prohibition on discrimination "because of sex" to include discrimination on the basis of sexual orientation and gender identity.
NAR supports including sexual orientation and gender identity as protected classes under the Fair Housing Act, having amended the NAR code of ethics to prohibit discrimination in real estate based on sexual orientation in 2010 and gender identity in 2013. NAR adopted policy in 2016 to support legislation that includes sexual orientation and gender identity as prohibited bases for discrimination under the Fair Housing Act.
Memorandum on Redressing Our Nation's and the Federal Government's History of Discriminatory Housing Practices and Policies
The memorandum directs the federal government to redress its history of discriminatory housing and lending practices by actively combatting racial bias in rental and home-purchase transactions, eliminating barriers to housing choice, and supporting the development of safe, inclusive communities.
The memorandum specifically calls on the Department of Housing and Urban Development (HUD) to examine the Trump Administration's repeal of the Affirmatively Furthering Fair Housing rule and the 2020 rule amending HUD's interpretation of the Fair Housing Act's disparate impact standard to determine if those actions had a detrimental impact on HUD's duty to uphold the Fair Housing Act. Following that review, HUD is directed to ensure its programs and procedures are affirmatively furthering fair housing and fully enforcing the Fair Housing Act, including the prevention of practices with an unjustified discriminatory effect.
In 2020 NAR sent a comment letter asking for HUD to withdraw the rule to amend the interpretation of the Fair Housing Act’s disparate impact standard. NAR also sent comment stating its support of the Affirmatively Furthering Fair Housing requirement in the Fair Housing Act.
NAR 2020 Affirmatively Furthering Fair Housing Comment Letterpdf