On the seventh of August the Federal Trade Commission announced it will no longer bring claims based on disparate impact. Its chairman called the theory "nearly impossible to square with our colorblind Constitution." The vote was two to nil.
If you list houses in Cherry Hill, that changed nothing about your Monday.
I want to walk through why, because the headline and the reality have come apart, and gaps like that have a habit of turning up on a designated broker's desk eighteen months later with a solicitor attached.
The two kinds, briefly
Housing law recognises two kinds of discrimination. Disparate treatment is the one everybody pictures: you treated this person worse because of who they are. Intent is the whole case.
Disparate impact is the other one. You applied the same neutral rule to everybody, and it landed harder on one protected group than another. No intent required, and usually none alleged.
The test is not whether a policy had an uneven effect. Nearly everything has an uneven effect. The test is whether the practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest, and whether you could have reached that same interest a less discriminatory way. Hold on to that sentence. Three governments in our patch have written a version of it down in the last nine months.
The bit nobody is putting in the headline
The Fair Housing Act's disparate impact standard is not an agency regulation. It is a Supreme Court holding.
In Texas Department of Housing and Community Affairs v. Inclusive Communities Project, 576 U.S. 519, decided in 2015, the Court held that the Fair Housing Act reaches policies that are neutral on their face but produce discriminatory effects, even without proof of intent, and that such policies are permissible only where they are necessary to achieve a valid interest. The Court has not revisited that decision.
So read the last twelve months precisely. An agency can decide it will not bring these cases. It can withdraw its own regulations and its own guidance. What it cannot do is rewrite a statute passed by Congress or the Supreme Court's reading of it. Private plaintiffs still have the cause of action. State attorneys general still have it. Fair housing testing organisations still have it, and they are the ones who actually knock on your door.
That is the whole trick of this news cycle. The enforcer changed. The rule did not.
What genuinely did change, and it is worse than it sounds
Federal agencies have spent a year not repealing your obligations but withdrawing the instructions for meeting them.
In September 2025 HUD's Office of Fair Housing and Equal Opportunity issued guidance that it would prioritise cases with strong evidence of intentional discrimination and de-prioritise investigations based on disparate impact, characterising those as "novel or tenuous theories." The next day it withdrew a stack of existing guidance documents outright. Among them, and I would like you to read this list as a working agent rather than as a policy person:
- the 2013 and 2020 guidance on service and assistance animals, which told you how to handle an accommodation request;
- the 2022 guidance on using criminal records in tenant screening, which told you to assess individually rather than apply a blanket bar;
- the 2007 Limited English Proficiency guidance;
- the 2021 statement on Special Purpose Credit Programs;
- guidance addressing appraisal bias and zoning.
Then, in December, the Department of Justice published a final rule rescinding the disparate impact provisions in the Title VI regulations, and on the fourteenth of January 2026 HUD proposed a rule that would eliminate all of its own regulations governing disparate impact liability under the Fair Housing Act.
Now put those two facts side by side. The statute still says what the Supreme Court said it says. The documents explaining how to comply with it have been taken off the wall. Anyone reading this as permission has it backwards. You are being asked to meet the same standard with less instruction and a smaller chance of a federal investigator telling you early and quietly that you have a problem.
The obligations did not shrink. The map did. Withdrawn guidance is not a repealed rule, and "HUD stopped publishing advice about this" has never been a defence to anything.
New Jersey went the other way, and your job title is in it
On the fifteenth of December 2025 the New Jersey Division on Civil Rights adopted Rules Pertaining to Disparate Impact Discrimination, at N.J.A.C. 13:16. They cover employment, housing, housing financial assistance, places of public accommodation and contracting.
Look at who is covered. Property owners, landlords, property management companies, sellers, lenders, and then, on its own line: "real estate brokers, agents, and salespersons." Not a footnote. Named.
Give the Division credit for the honest part, because it is more uncomfortable than a new law would have been. Their own published FAQ says the rules do not create new liability and do not change the law in New Jersey. They clarify standards that DCR and the New Jersey courts have recognised under the Law Against Discrimination for decades. Which means if this feels new to you, the exposure was not new. Only your awareness of it is.
The rules include worked examples. Five of them are things a working agent or landlord does without thinking twice.
Income standards. A minimum income requirement can produce a disparate impact based on source of lawful income, which is a protected characteristic in housing under the LAD. New Jersey requires that any minimum income requirement or financial standard be applied exclusively to the portion of rent the tenant will actually pay. If a voucher covers most of the rent, your three-times-the-rent rule runs against the tenant's share, not the whole figure. That is the single most specific instruction in the document and it is the easiest one to be caught on.
Blanket history screens. Excluding applicants from consideration on criminal history, eviction history or credit history is named as a practice that may produce a disproportionate effect on the basis of race, national origin or ancestry.
Word of mouth. Filling units exclusively through referrals from current residents, where the result is that everybody new resembles everybody already there.
Appraisal practice that discounts homes in majority-Black neighbourhoods, or in neighbourhoods with signage in languages other than English.
Advertising placement. And I need you to sit down for this one.
New Jersey's rules name "targeting online advertisements to particular locations" as a housing practice that may produce an unlawful disparate impact on the basis of race or national origin, among other protected characteristics.
Which brings me to the bridge
Last week I wrote that Google will still let you draw a radius one kilometre wide on a housing campaign, because Google's own published policy says radius targeting requires at least 1 km. That is accurate, and it is the platform's rule.
New Jersey's rules say a location-targeted housing advertisement may produce a disparate impact.
Both are true simultaneously, and they are not in conflict, because they answer different questions. Google's policy tells you what its system will accept from you. New Jersey's rules tell you what a state regulator may later say about the effect of what you did with it. The platform's permission has never been a defence in a regulated category, and it is not one here.
I am not telling you to stop advertising locally. Local advertising is the entire business. I am telling you that the record of where you chose to advertise, and just as importantly where you chose not to, is now a document that a state agency has written down a standard for reading.
Four markets, four answers
We work South Jersey, Philadelphia, Wilmington and Baltimore, and the four are not the same on this. I went and looked at each.
New Jersey. The strongest by some distance. N.J.A.C. 13:16, adopted 15 December 2025. Burden shifts to you once a disproportionate effect is shown, and you have to demonstrate both that the practice is necessary to a substantial legitimate interest and that no less discriminatory alternative exists. Agents named. Automated tools addressed directly.
Maryland. Codified. House Bill 573, "Fair Housing and Housing Discrimination / Regulations, Intent, and Discriminatory Effect," provides that certain discriminatory housing practices may be committed without intent, prohibits acting in a manner that has a discriminatory effect, and provides that conduct necessary to achieve certain nondiscriminatory interests does not constitute a violation. Same shape as New Jersey's, written into statute rather than regulation.
Pennsylvania. This is the awkward one. I could not find a statewide codification of disparate impact for housing. The Pennsylvania Human Relations Act protects more classes than federal law does, and it has for a long time, but that is a different thing from a written effects standard. Pittsburgh added disparate impact to its city anti-discrimination ordinance in November 2025, which tells you the direction of travel and does nothing for you in Philadelphia. In the city itself, the Fair Practices Ordinance has protected source of income for more than forty years, which covers voucher holders, and it is enforced by the Philadelphia Commission on Human Relations. Reporting on that provision describes enforcement as rare. Rare enforcement is not the same as no rule, and I would not build a screening policy on the gap.
Delaware. I looked and did not find a 2025 or 2026 codification comparable to New Jersey's or Maryland's. That is not a finding that nothing exists, it is a statement about what I could verify. If you work Wilmington and you know otherwise, tell me and I will correct this piece rather than quietly leave it wrong.
Here is the uncomfortable summary. If your brokerage runs one screening policy, one advertising plan and one set of house rules on both sides of the river, then you are either running your Camden County business under Pennsylvania's standard or your Philadelphia business under New Jersey's. Only one of those two mistakes is expensive, and it is not the careful one.
What I would actually do this month
- Write down the rules you apply to everybody. Income multiples, credit minimums, eviction and criminal history screens, deposit structures, pet policies. If it is not written down you cannot test it, and "we just know" has never survived contact with a complaint.
- For each one, answer the two questions the standard asks. What substantial, legitimate, nondiscriminatory interest does this serve, and is there a less discriminatory way to serve it? In writing, before anybody asks you.
- Fix the income calculation this week if you touch New Jersey. Apply the multiple to the tenant's portion of the rent. It is the clearest instruction in the rules and it takes an afternoon.
- Keep the targeting record. Radius, exclusions, budget split by area, for every housing campaign you run. You want to be able to show a pattern of covering your market rather than a pattern of avoiding parts of it.
- Ask what your software is screening on. New Jersey's rules address automated tools directly. If a piece of software ranks your applicants or decides where your listings appear, somebody in your office should be able to say what it uses to do that. If nobody can, you have found the thing to fix first.
- Set one policy, at the strictest of the four markets. Run New Jersey's standard everywhere. It costs you very little in Philadelphia and it removes an entire category of problem from your business, permanently.
The part I keep coming back to
Nothing about your obligation to the person standing in front of you changed on the seventh of August. What changed is which government is paying attention, and the answer is now the one closer to you.
I have said before that a company's values statement is aspirational and its system is the truth, because the system is what happens whether anybody is watching or not. That applies to governments as neatly as it applies to brokerages. The federal system has announced it will stop watching this. Your state has written down precisely what it is watching for, and put your job title on the list of who it is watching.
So the question was never which rules survived. It is which side of the bridge you were standing on when you set your policy, and whether anybody has checked it since.