The Supreme Court last week ruled 5-4 (Justice Kennedy writing the majority opinion, joined by the four liberal justices) that “disparate impact” claims may be brought under the Fair Housing Act. The court’s decision fails to follow the clear language of the statute, and it will encourage race-based decision making in the housing area — exactly what the Fair Housing Act was meant to prohibit.
Here’s why. Under a disparate-impact claim of discrimination, discriminatory motive is irrelevant: It need not be alleged nor proved, and it doesn’t even matter if the defendant proves that there was no discriminatory motive. If a policy or procedure results in a disproportion of some sort — not only on the basis of race, color or national origin, but also religion, sex or whatever — then that’s enough, even if the policy is nondiscriminatory by its terms, in its intent and in its application.
