graphic image depicting green amicus briefs for Atlantic Legal Foundation Amicus Brief Summary

Disparate Treatment vs Disparate Impact: Should a Clause Intended To Ban Racial Discrimination Be Interpreted To Encourage It?

This case presents the question whether the Federal Fair Housing Act’s ban on racial discrimination can be violated by someone who does not engage in racial discrimination. The federal court of appeals below allowed a “disparate impact” claim to proceed under the Act against the Texas Department of Housing and Community Affairs. Inclusive Communities Project, Inc. v. Texas Dep’t of Hous. & Cmty. Affairs, 747 F.3d 275, 276 (5th Cir.), cert. granted in part, 135 S. Ct. 46 (2014). For such a claim, the plaintiffs need not allege, nor prove, that individuals were treated differently because of their race. Instead, plaintiffs need only show that a neutral practice has a disproportionate effect—that is, a disparate impact—on some racial group. Ricci v. DeStefano, 557 U.S. 557, 577 (2009).


The statutory text and the legislative history of the Fair Housing Act, as expressed by its proponents in Congress, establish that the Act was intended to apply solely to disparate treatment, not to actions having a disparate impact on protected classes. The Fair Housing Act makes it unlawful “to refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(a). By its terms, the Act prohibits disparate treatment: that is, intentional discrimination. The act does not mention, as giving rise to a cause of action or otherwise, disparate racial patterns that may emerge as a consequence of the adoption of otherwise justifiable requirements that landlords or employers may adopt. 


Issue Areas:

Free Enterprise, Individual Liberty, Limited Government

Read the Amicus Brief:
Question(s) Presented:

Are disparate-impact claims cognizable under the Fair Housing Act—Title VIII of the Civil Rights Act of 1968?

Additional Background:

This Court has consistently differentiated between language imposing liability for disparate treatment and language imposing liability for disparate impact. Language in Section 703 of Title VII describes “disparate treatment,” see Ricci, 557 U.S. at 577; as does Section 4(a) of the Age Discrimination in Employment Act (ADEA), see Smith v. City of Jackson, Miss., 544 U.S. 228, 236 n.6 (2005) (plurality opinion). In both those cases, this Court held that language materially identical to the language at issue here imposes liability for disparate treatment. Very differently-worded provisions impose liability for disparate impact.

ALF’s Amicus Brief:

In an amicus brief amici argue that Congressional intent is clearly derived from the unambiguous plain meaning of the act which used language that assigned liability to the accused’s motives. Further allowing disparate impact claims ensures that parties will be incentivized to discriminate based on race to avoid liability for disparate impact claims. Business owners will be asked to make sure that their policies do not affect too many of a certain group and too few of another, rather than deciding policies based on sound business practices, profit, or quality of service, which is the exact opposite of the plain meaning of the statute. When public employers were considered by this Court, racial quotas were held to violate the Constitution. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 993 (1988). Therefore allowing disparate impact claims without a showing of intent violates the constitutional avoidance canon. 

The amici ask the Supreme Court to grant certioari to affirm the plain meaning of Congress to ban rather than encourage racial discrimination by dispirate treatment, not impact. 



On July 27, 2015 the Supreme Court issued an averse opinion written by Justice Kennedy representing the 5-4 majority, holding that disparate impact claims are cognizable under the FHA, building upon the scheme created by the Court in Griggs v. Duke Power Co., 401 U. S. 424 (1971), which Justice Thomas characterizes as an illegitimate rewriting of the law to allow EEOC radicals to overcome the compromises that were made to pass the act’s moderate plain language.  


Date Originally Posted: June 16, 2014

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