Fair Housing and Equal Opportunity rules got harder to parse in the last year. Previously, there was substantial reliance on nonbinding guidance documents from the various agencies about topics like fair housing advertisement and reasonable accommodation policy practices. We previously relied on documents like the 1995 Achtenberg memo [for fair housing compliant advertisements], and FHEO 2020-1 [for questions of reasonable accommodation policy].
In 2025, the Trump Administration issued EO 14192 (“Unleashing Prosperity Through Deregulation”) and EO 14219 (“Ensuring Lawful Governance and Implementing the President’s ‘Department of Government Efficiency’ Deregulatory Initiative”). The Office of Fair Housing and Equal Opportunity issued a notice withdrawing several pieces of guidance on the grounds that the new policy of the Office is “issuing guidance only where guidance is necessary and would reduce compliance burdens rather than increase them.” As a result, FHEO 2020-1 is no longer even nonbinding guidance, however .pdfs still persist online. HUD provided no notice and simply removed the Achtenberg memo. The Achtenberg memo is technically still findable online, but to date, nothing has been placed in the void space of that guidance; presumably this means the Achtenberg memo is still technically valid guidance, but not guidance that the present agency wants you to review or rely on. For lack of a better description, the Achtenberg memo is treated as being begrudgingly accurate. This puts practitioners in a tenuous position – you are obligated to comply with the fair housing directives of the Fair Housing Act, but have little to support you besides reading the exact text of the laws. All brokers are encouraged to kick back tonight and open up 42 USC chapter 45 for some light reading before assuming that blanket removal of all guidance documents makes fair housing rules materially easier to understand.
Some legal practitioners have taken the stance that guidance documents are still valuable sources of information until they are told otherwise; other practitioners have taken this as an epoch of statutory language and caselaw supremacy over guidance. Fair housing practices must now be reviewed for compliance. If the policy or practice was designed to mirror previous HUD guidance, it must be reconsidered to determine whether it is grounded in enforceable law or non-withdrawn agency guidance. Practitioners must take additional care to document decisions and policy applications to produce the strongest possible defense against discrimination claims. For example, if a tenant requests permission to have an assistance dog and the dog is a Pitbull, where previous guidance in FHEO 2020-1 stated that there was no ground for denial of a request based on beliefs about the breed or type of dog, it is now uncertain whether breed-based denial is still prohibited based on a textualist reading of 42 USC 3604(f)(3)(B), which states that it is discrimination to refuse to “make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” This should not be taken as a total resetting of the law, because all previous agency guidance was based on the same laws, but rather just notes that you were previously walking around a labyrinth with the lights on, and now you’re wandering around the same labyrinth with the lights off. It’s possible the walls moved, it’s possible they’re still there, and you’ll run headlong into them in the dark.
The risk-managed approach is to assume that previous guidance restricting a practice is still valid until guidance is released stating otherwise. While the Achtenberg memo is old, you’re not likely to find a better explanation of protected class-based discrimination in advertising. While FHEO 2020-1 was eradicated, it’s still probably a violation of the Fair Housing Act to deny a paralyzed applicant’s request to use their trained capuchin monkey [actual example from FHEO 2020-1 because the monkey has little hands that do things a service dog couldn’t do].