This issue before the Supreme Court of the United States in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project is whether the Fair Housing Act allows for liability based on disparate impact, as distinct from discriminatory acts or motives.
Disparate impact has metastasized at the federal level. Increasingly, entities which are government contractors or subcontractors, or which receive federal funding, have to make race-conscious decisions to avoid disparate impact in housing, employment, education, grant programs, government contracting, etc.
The Courts decision in Ricci highlights the conflict between disparate impact doctrine and the constitutional guarantees of equal protection because requiring employers to avoid disparate impact liability could lead to a de facto quota system. As explained in Justice Scalias concurrence, a disparate impact theory of liability may violate the Equal Protection Clause because subjecting defendants to disparate impact claims leads them to engage in unconstitutional race-conscious decision-making to avoid liability for such claims and leads to substantially adverse results. See Ricci v. DeStefano, 557 U.S. 557, 582, 594 (2009).
Atlantic Legal joined in an amicus brief Pacific Legal Foundation filed on behalf of a number of public interest legal foundations and think tanks. That brief argued that (1) the text of the Fair Housing Act does not support a cognizable disparate impact claim, (2) there is a conflict between the disparate impact theory of liability and Equal Protection, and (3) the extension of the disparate impact doctrine to the Fair Housing Act leads to adverse results.
To view the brief, which was filed on November 24, 2014, please click here.