Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc. , 192 L. Ed. 2d 514 ( 2015 )

(Slip Opinion) OCTOBER TERM, 2014 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
TEXAS DEPARTMENT OF HOUSING AND
COMMUNITY AFFAIRS ET AL. v. INCLUSIVE
COMMUNITIES PROJECT, INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 13–1371. Argued January 21, 2015—Decided June 25, 2015
The Federal Government provides low-income housing tax credits that
are distributed to developers by designated state agencies. In Texas,
the Department of Housing and Community Affairs (Department)
distributes the credits. The Inclusive Communities Project, Inc.
(ICP), a Texas-based nonprofit corporation that assists low-income
families in obtaining affordable housing, brought a disparate-impact
claim under §§804(a) and 805(a) of the Fair Housing Act (FHA), al-
leging that the Department and its officers had caused continued
segregated housing patterns by allocating too many tax credits to
housing in predominantly black inner-city areas and too few in pre-
dominantly white suburban neighborhoods. Relying on statistical ev-
idence, the District Court concluded that the ICP had established a
prima facie showing of disparate impact. After assuming the De-
partment’s proffered non-discriminatory interests were valid, it found
that the Department failed to meet its burden to show that there
were no less discriminatory alternatives for allocating the tax credits.
While the Department’s appeal was pending, the Secretary of Hous-
ing and Urban Development issued a regulation interpreting the
FHA to encompass disparate-impact liability and establishing a bur-
den-shifting framework for adjudicating such claims. The Fifth Cir-
cuit held that disparate-impact claims are cognizable under the FHA,
but reversed and remanded on the merits, concluding that, in light of
the new regulation, the District Court had improperly required the
Department to prove less discriminatory alternatives.
The FHA was adopted shortly after the assassination of Dr. Martin
Luther King, Jr. Recognizing that persistent racial segregation had
2 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
Syllabus
left predominantly black inner cities surrounded by mostly white
suburbs, the Act addresses the denial of housing opportunities on the
basis of “race, color, religion, or national origin.” In 1988, Congress
amended the FHA, and, as relevant here, created certain exemptions
from liability.
Held: Disparate-impact claims are cognizable under the Fair Housing
Act. Pp. 7–24.
(a) Two antidiscrimination statutes that preceded the FHA are rel-
evant to its interpretation. Both §703(a)(2) of Title VII of the Civil
Rights Act of 1964 and §4(a)(2) of the Age Discrimination in Em-
ployment Act of 1967 (ADEA) authorize disparate-impact claims.
Under Griggs v. Duke Power Co., 401 U.S. 424, and Smith v. City of
Jackson, 544 U.S. 228, the cases announcing the rule for Title VII
and for the ADEA, respectively, antidiscrimination laws should be
construed to encompass disparate-impact claims when their text re-
fers to the consequences of actions and not just to the mindset of ac-
tors, and where that interpretation is consistent with statutory pur-
pose. Disparate-impact liability must be limited so employers and
other regulated entities are able to make the practical business
choices and profit-related decisions that sustain the free-enterprise
system. Before rejecting a business justification—or a governmental
entity’s analogous public interest—a court must determine that a
plaintiff has shown that there is “an available alternative . . . practice
that has less disparate impact and serves the [entity’s] legitimate
needs.” Ricci v. DeStefano, 557 U.S. 557, 578. These cases provide
essential background and instruction in the case at issue. Pp. 7–10.
(b) Under the FHA it is unlawful to “refuse to sell or rent . . . or
otherwise make unavailable or deny, a dwelling to a person because
of race” or other protected characteristic, §804(a), or “to discriminate
against any person in” making certain real-estate transactions “be-
cause of race” or other protected characteristic, §805(a). The logic of
Griggs and Smith provides strong support for the conclusion that the
FHA encompasses disparate-impact claims. The results-oriented
phrase “otherwise make unavailable” refers to the consequences of an
action rather than the actor’s intent. See United States v. Giles, 300
U.S. 41, 48. And this phrase is equivalent in function and purpose to
Title VII’s and the ADEA’s “otherwise adversely affect” language. In
all three statutes the operative text looks to results and plays an
identical role: as a catchall phrase, located at the end of a lengthy
sentence that begins with prohibitions on disparate treatment. The
introductory word “otherwise” also signals a shift in emphasis from
an actor’s intent to the consequences of his actions. This similarity in
text and structure is even more compelling because Congress passed
the FHA only four years after Title VII and four months after the
Cite as: 576 U. S. ____ (2015) 3
Syllabus
ADEA. Although the FHA does not reiterate Title VII’s exact lan-
guage, Congress chose words that serve the same purpose and bear
the same basic meaning but are consistent with the FHA’s structure
and objectives. The FHA contains the phrase “because of race,” but
Title VII and the ADEA also contain that wording and this Court
nonetheless held that those statutes impose disparate-impact liabil-
ity.
The 1988 amendments signal that Congress ratified such liability.
Congress knew that all nine Courts of Appeals to have addressed the
question had concluded the FHA encompassed disparate-impact
claims, and three exemptions from liability in the 1988 amendments
would have been superfluous had Congress assumed that disparate-
impact liability did not exist under the FHA.
Recognition of disparate-impact claims is also consistent with the
central purpose of the FHA, which, like Title VII and the ADEA, was
enacted to eradicate discriminatory practices within a sector of the
Nation’s economy. Suits targeting unlawful zoning laws and other
housing restrictions that unfairly exclude minorities from certain
neighborhoods without sufficient justification are at the heartland of
disparate-impact liability. See, e.g., Huntington v. Huntington
Branch, NAACP, 488 U.S. 15, 16–18. Recognition of disparate-
impact liability under the FHA plays an important role in uncovering
discriminatory intent: it permits plaintiffs to counteract unconscious
prejudices and disguised animus that escape easy classification as
disparate treatment.
But disparate-impact liability has always been properly limited in
key respects to avoid serious constitutional questions that might
arise under the FHA, e.g., if such liability were imposed based solely
on a showing of a statistical disparity. Here, the underlying dispute
involves a novel theory of liability that may, on remand, be seen
simply as an attempt to second-guess which of two reasonable ap-
proaches a housing authority should follow in allocating tax credits
for low-income housing. An important and appropriate means of en-
suring that disparate-impact liability is properly limited is to give
housing authorities and private developers leeway to state and ex-
plain the valid interest their policies serve, an analysis that is analo-
gous to Title VII’s business necessity standard. It would be paradoxi-
cal to construe the FHA to impose onerous costs on actors who
encourage revitalizing dilapidated housing in the Nation’s cities
merely because some other priority might seem preferable. A dispar-
ate-impact claim relying on a statistical disparity must fail if the
plaintiff cannot point to a defendant’s policy or policies causing that
disparity. A robust causality requirement is important in ensuring
that defendants do not resort to the use of racial quotas. Courts must
4 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
Syllabus
therefore examine with care whether a plaintiff has made out a pri-
ma facie showing of disparate impact, and prompt resolution of these
cases is important. Policies, whether governmental or private, are
not contrary to the disparate-impact requirement unless they are “ar-
tificial, arbitrary, and unnecessary barriers.” Griggs, 401 U.S., at
431. Courts should avoid interpreting disparate-impact liability to be
so expansive as to inject racial considerations into every housing de-
cision. These limitations are also necessary to protect defendants
against abusive disparate-impact claims.
And when courts do find liability under a disparate-impact theory,
their remedial orders must be consistent with the Constitution. Re-
medial orders in disparate-impact cases should concentrate on the
elimination of the offending practice, and courts should strive to de-
sign race-neutral remedies. Remedial orders that impose racial tar-
gets or quotas might raise difficult constitutional questions.
While the automatic or pervasive injection of race into public and
private transactions covered by the FHA has special dangers, race
may be considered in certain circumstances and in a proper fashion.
This Court does not impugn local housing authorities’ race-neutral ef-
forts to encourage revitalization of communities that have long suf-
fered the harsh consequences of segregated housing patterns. These
authorities may choose to foster diversity and combat racial isolation
with race-neutral tools, and mere awareness of race in attempting to
solve the problems facing inner cities does not doom that endeavor at
the outset. Pp. 10–23.
747 F.3d 275, affirmed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which GINSBURG,
BREYER, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed a dis-
senting opinion. ALITO, J., filed a dissenting opinion, in which ROB-
ERTS, C. J., and SCALIA and THOMAS, JJ., joined.
Cite as: 576 U. S. ____ (2015) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–1371
_________________
TEXAS DEPARTMENT OF HOUSING AND COMMU-
NITY AFFAIRS, ET AL., PETITIONERS v. THE IN-
CLUSIVE COMMUNITIES PROJECT, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 25, 2015]
JUSTICE KENNEDY delivered the opinion of the Court.
The underlying dispute in this case concerns where
housing for low-income persons should be constructed in
Dallas, Texas—that is, whether the housing should be
built in the inner city or in the suburbs. This dispute
comes to the Court on a disparate-impact theory of liabil-
ity. In contrast to a disparate-treatment case, where a
“plaintiff must establish that the defendant had a discrim-
inatory intent or motive,” a plaintiff bringing a disparate-
impact claim challenges practices that have a “dispropor-
tionately adverse effect on minorities” and are otherwise
unjustified by a legitimate rationale. Ricci v. DeStefano,
557 U.S. 557, 577 (2009) (internal quotation marks omit-
ted). The question presented for the Court’s determina-
tion is whether disparate-impact claims are cognizable
under the Fair Housing Act (or FHA), 82 Stat. 81, as
amended, 42 U.S. C. §3601 et seq.
I
A
Before turning to the question presented, it is necessary
2 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
Opinion of the Court
to discuss a different federal statute that gives rise to this
dispute. The Federal Government provides low-income
housing tax credits that are distributed to developers
through designated state agencies. 26 U.S. C. §42. Con-
gress has directed States to develop plans identifying
selection criteria for distributing the credits. §42(m)(1).
Those plans must include certain criteria, such as public
housing waiting lists, §42(m)(1)(C), as well as certain
preferences, including that low-income housing units
“contribut[e] to a concerted community revitalization plan”
and be built in census tracts populated predominantly by
low-income residents. §§42(m)(1)(B)(ii)(III), 42(d)(5)(ii)(I).
Federal law thus favors the distribution of these tax cred-
its for the development of housing units in low-income
areas.
In the State of Texas these federal credits are distrib-
uted by the Texas Department of Housing and Community
Affairs (Department). Under Texas law, a developer’s
application for the tax credits is scored under a point
system that gives priority to statutory criteria, such as the
financial feasibility of the development project and the
income level of tenants. Tex. Govt. Code Ann.
§§2306.6710(a)–(b) (West 2008). The Texas Attorney
General has interpreted state law to permit the considera-
tion of additional criteria, such as whether the housing
units will be built in a neighborhood with good schools.
Those criteria cannot be awarded more points than statu-
torily mandated criteria. Tex. Op. Atty. Gen. No. GA–
0208, pp. 2–6 (2004), 2004 WL 1434796, *4–*6.
The Inclusive Communities Project, Inc. (ICP), is a
Texas-based nonprofit corporation that assists low-income
families in obtaining affordable housing. In 2008, the ICP
brought this suit against the Department and its officers
in the United States District Court for the Northern Dis-
trict of Texas. As relevant here, it brought a disparate-
impact claim under §§804(a) and 805(a) of the FHA. The
Cite as: 576 U. S. ____ (2015) 3
Opinion of the Court
ICP alleged the Department has caused continued segre-
gated housing patterns by its disproportionate allocation
of the tax credits, granting too many credits for housing in
predominantly black inner-city areas and too few in pre-
dominantly white suburban neighborhoods. The ICP
contended that the Department must modify its selection
criteria in order to encourage the construction of low-
income housing in suburban communities.
The District Court concluded that the ICP had estab-
lished a prima facie case of disparate impact. It relied on
two pieces of statistical evidence. First, it found “from
1999–2008, [the Department] approved tax credits for
49.7% of proposed non-elderly units in 0% to 9.9% Cauca-
sian areas, but only approved 37.4% of proposed non-
elderly units in 90% to 100% Caucasian areas.” 749
F. Supp. 2d 486, 499 (ND Tex. 2010) (footnote omitted).
Second, it found “92.29% of [low-income housing tax credit]
units in the city of Dallas were located in census tracts
with less than 50% Caucasian residents.” Ibid.
The District Court then placed the burden on the De-
partment to rebut the ICP’s prima facie showing of dis-
parate impact. 860 F. Supp. 2d 312, 322–323 (2012).
After assuming the Department’s proffered interests were
legitimate, id., at 326, the District Court held that a de-
fendant—here the Department—must prove “that there
are no other less discriminatory alternatives to advancing
their proffered interests,” ibid. Because, in its view, the
Department “failed to meet [its] burden of proving that
there are no less discriminatory alternatives,” the District
Court ruled for the ICP. Id., at 331.
The District Court’s remedial order required the addi-
tion of new selection criteria for the tax credits. For in-
stance, it awarded points for units built in neighborhoods
with good schools and disqualified sites that are located
adjacent to or near hazardous conditions, such as high
crime areas or landfills. See 2012 WL 3201401 (Aug. 7,
4 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
Opinion of the Court
2012). The remedial order contained no explicit racial
targets or quotas.
While the Department’s appeal was pending, the Secre-
tary of Housing and Urban Development (HUD) issued a
regulation interpreting the FHA to encompass disparate-
impact liability. See Implementation of the Fair Housing
Act’s Discriminatory Effects Standard, 78 Fed. Reg. 11460
(2013). The regulation also established a burden-shifting
framework for adjudicating disparate-impact claims.
Under the regulation, a plaintiff first must make a prima
facie showing of disparate impact. That is, the plaintiff
“has the burden of proving that a challenged practice
caused or predictably will cause a discriminatory effect.”
24 CFR §100.500(c)(1) (2014). If a statistical discrepancy
is caused by factors other than the defendant’s policy, a
plaintiff cannot establish a prima facie case, and there is
no liability. After a plaintiff does establish a prima facie
showing of disparate impact, the burden shifts to the
defendant to “prov[e] that the challenged practice is neces-
sary to achieve one or more substantial, legitimate, non-
discriminatory interests.” §100.500(c)(2). HUD has clari-
fied that this step of the analysis “is analogous to the Title
VII requirement that an employer’s interest in an em-
ployment practice with a disparate impact be job related.”
78 Fed. Reg. 11470. Once a defendant has satisfied its
burden at step two, a plaintiff may “prevail upon proving
that the substantial, legitimate, nondiscriminatory inter-
ests supporting the challenged practice could be served by
another practice that has a less discriminatory effect.”
§100.500(c)(3).
The Court of Appeals for the Fifth Circuit held, con-
sistent with its precedent, that disparate-impact claims
are cognizable under the FHA. 747 F.3d 275, 280 (2014).
On the merits, however, the Court of Appeals reversed and
remanded. Relying on HUD’s regulation, the Court of
Appeals held that it was improper for the District Court to
Cite as: 576 U. S. ____ (2015) 5
Opinion of the Court
have placed the burden on the Department to prove there
were no less discriminatory alternatives for allocating low-
income housing tax credits. Id., at 282–283. In a concur-
ring opinion, Judge Jones stated that on remand the
District Court should reexamine whether the ICP had
made out a prima facie case of disparate impact. She
suggested the District Court incorrectly relied on bare
statistical evidence without engaging in any analysis
about causation. She further observed that, if the fed-
eral law providing for the distribution of low-income hous-
ing tax credits ties the Department’s hands to such an
extent that it lacks a meaningful choice, then there is no
disparate-impact liability. See id., at 283–284 (specially
concurring opinion).
The Department filed a petition for a writ of certiorari
on the question whether disparate-impact claims are
cognizable under the FHA. The question was one of first
impression, see Huntington v. Huntington Branch,
NAACP, 488 U.S. 15 (1988) (per curiam), and certiorari
followed, 573 U. S. ___ (2014). It is now appropriate to
provide a brief history of the FHA’s enactment and its
later amendment.
B
De jure residential segregation by race was declared
unconstitutional almost a century ago, Buchanan v. War-
ley, 245 U.S. 60 (1917), but its vestiges remain today,
intertwined with the country’s economic and social life.
Some segregated housing patterns can be traced to condi-
tions that arose in the mid-20th century. Rapid urbaniza-
tion, concomitant with the rise of suburban developments
accessible by car, led many white families to leave the
inner cities. This often left minority families concentrated
in the center of the Nation’s cities. During this time,
various practices were followed, sometimes with govern-
mental support, to encourage and maintain the separation
6 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
Opinion of the Court
of the races: Racially restrictive covenants prevented the
conveyance of property to minorities, see Shelley v. Krae-
mer, 334 U.S. 1 (1948); steering by real-estate agents led
potential buyers to consider homes in racially homogenous
areas; and discriminatory lending practices, often referred
to as redlining, precluded minority families from purchas-
ing homes in affluent areas. See, e.g., M. Klarman, Unfin-
ished Business: Racial Equality in American History 140–
141 (2007); Brief for Housing Scholars as Amici Curiae
22–23. By the 1960’s, these policies, practices, and preju-
dices had created many predominantly black inner cities
surrounded by mostly white suburbs. See K. Clark, Dark
Ghetto: Dilemmas of Social Power 11, 21–26 (1965).
The mid-1960’s was a period of considerable social un-
rest; and, in response, President Lyndon Johnson estab-
lished the National Advisory Commission on Civil Disor-
ders, commonly known as the Kerner Commission. Exec.
Order No. 11365, 3 CFR 674 (1966–1970 Comp.). After
extensive factfinding the Commission identified residen-
tial segregation and unequal housing and economic condi-
tions in the inner cities as significant, underlying causes of
the social unrest. See Report of the National Advisory
Commission on Civil Disorders 91 (1968) (Kerner Com-
mission Report). The Commission found that “[n]early
two-thirds of all nonwhite families living in the central
cities today live in neighborhoods marked by substandard
housing and general urban blight.” Id., at 13. The Com-
mission further found that both open and covert racial
discrimination prevented black families from obtaining
better housing and moving to integrated communities.
Ibid. The Commission concluded that “[o]ur Nation is
moving toward two societies, one black, one white—
separate and unequal.” Id., at 1. To reverse “[t]his deep-
ening racial division,” ibid., it recommended enactment of
“a comprehensive and enforceable open-occupancy law
making it an offense to discriminate in the sale or rental of
Cite as: 576 U. S. ____ (2015) 7
Opinion of the Court
any housing . . . on the basis of race, creed, color, or na-
tional origin.” Id., at 263.
In April 1968, Dr. Martin Luther King, Jr., was assassi-
nated in Memphis, Tennessee, and the Nation faced a new
urgency to resolve the social unrest in the inner cities.
Congress responded by adopting the Kerner Commission’s
recommendation and passing the Fair Housing Act. The
statute addressed the denial of housing opportunities on
the basis of “race, color, religion, or national origin.” Civil
Rights Act of 1968, §804, 82 Stat. 83. Then, in 1988,
Congress amended the FHA. Among other provisions, it
created certain exemptions from liability and added “fa-
milial status” as a protected characteristic. See Fair
Housing Amendments Act of 1988, 102 Stat. 1619.
II
The issue here is whether, under a proper interpretation
of the FHA, housing decisions with a disparate impact are
prohibited. Before turning to the FHA, however, it is
necessary to consider two other antidiscrimination stat-
utes that preceded it.
The first relevant statute is §703(a) of Title VII of the
Civil Rights Act of 1964, 78 Stat. 255. The Court ad-
dressed the concept of disparate impact under this statute
in Griggs v. Duke Power Co., 401 U.S. 424 (1971). There,
the employer had a policy requiring its manual laborers to
possess a high school diploma and to obtain satisfactory
scores on two intelligence tests. The Court of Appeals held
the employer had not adopted these job requirements for a
racially discriminatory purpose, and the plaintiffs did not
challenge that holding in this Court. Instead, the plain-
tiffs argued §703(a)(2) covers the discriminatory effect of a
practice as well as the motivation behind the practice.
Section 703(a), as amended, provides as follows:
“It shall be an unlawful employer practice for an
employer—
8 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
Opinion of the Court
“(1) to fail or refuse to hire or to discharge any indi-
vidual, or otherwise to discriminate against any indi-
vidual with respect to his compensation, terms, condi-
tions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national
origin; or
“(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would
deprive or tend to deprive any individual of employ-
ment opportunities or otherwise adversely affect his
status as an employee, because of such individual’s
race, color, religion, sex, or national origin.” 42
U.S. C. §2000e–2(a).
The Court did not quote or cite the full statute, but rather
relied solely on §703(a)(2). Griggs, 401 U.S., at 426, n. 1.
In interpreting §703(a)(2), the Court reasoned that
disparate-impact liability furthered the purpose and de-
sign of the statute. The Court explained that, in
§703(a)(2), Congress “proscribe[d] not only overt discrimi-
nation but also practices that are fair in form, but discrim-
inatory in operation.” Id., at 431. For that reason, as the
Court noted, “Congress directed the thrust of [§703(a)(2)]
to the consequences of employment practices, not simply
the motivation.” Id., at 432. In light of the statute’s goal
of achieving “equality of employment opportunities and
remov[ing] barriers that have operated in the past” to
favor some races over others, the Court held §703(a)(2) of
Title VII must be interpreted to allow disparate-impact
claims. Id., at 429–430.
The Court put important limits on its holding: namely,
not all employment practices causing a disparate impact
impose liability under §703(a)(2). In this respect, the
Court held that “business necessity” constitutes a defense
to disparate-impact claims. Id., at 431. This rule pro-
vides, for example, that in a disparate-impact case,
Cite as: 576 U. S. ____ (2015) 9
Opinion of the Court
§703(a)(2) does not prohibit hiring criteria with a “mani-
fest relationship” to job performance. Id., at 432; see also
Ricci, 557 U.S., at 587–589 (emphasizing the importance
of the business necessity defense to disparate-impact
liability). On the facts before it, the Court in Griggs found
a violation of Title VII because the employer could not
establish that high school diplomas and general intelli-
gence tests were related to the job performance of its
manual laborers. See 401 U.S., at 431–432.
The second relevant statute that bears on the proper
interpretation of the FHA is the Age Discrimination in
Employment Act of 1967 (ADEA), 81 Stat. 602 et seq., as
amended. Section 4(a) of the ADEA provides:
“It shall be unlawful for an employer—
“(1) to fail or refuse to hire or to discharge any indi-
vidual or otherwise discriminate against any individ-
ual with respect to his compensation, terms, condi-
tions, or privileges of employment, because of such
individual’s age;
“(2) to limit, segregate, or classify his employees in
any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise
adversely affect his status as an employee, because of
such individual’s age; or
“(3) to reduce the wage rate of any employee in or-
der to comply with this chapter.” 29 U.S. C. §623(a).
The Court first addressed whether this provision allows
disparate-impact claims in Smith v. City of Jackson, 544
U.S. 228 (2005). There, a group of older employees chal-
lenged their employer’s decision to give proportionately
greater raises to employees with less than five years of
experience.
Explaining that Griggs “represented the better reading
of [Title VII’s] statutory text,” 544 U.S., at 235, a plurality
of the Court concluded that the same reasoning pertained
10 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
Opinion of the Court
to §4(a)(2) of the ADEA. The Smith plurality emphasized
that both §703(a)(2) of Title VII and §4(a)(2) of the ADEA
contain language “prohibit[ing] such actions that ‘deprive
any individual of employment opportunities or otherwise
adversely affect his status as an employee, because of such
individual’s’ race or age.” 544 U.S., at 235. As the plural-
ity observed, the text of these provisions “focuses on the
effects of the action on the employee rather than the moti-
vation for the action of the employer” and therefore com-
pels recognition of disparate-impact liability. Id., at 236.
In a separate opinion, JUSTICE SCALIA found the ADEA’s
text ambiguous and thus deferred under Chevron U. S. A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837 (1984), to an Equal Employment Opportunity Com-
mission regulation interpreting the ADEA to impose
disparate-impact liability, see 544 U.S., at 243–247 (opin-
ion concurring in part and concurring in judgment).
Together, Griggs holds and the plurality in Smith in-
structs that antidiscrimination laws must be construed to
encompass disparate-impact claims when their text refers
to the consequences of actions and not just to the mindset
of actors, and where that interpretation is consistent with
statutory purpose. These cases also teach that disparate-
impact liability must be limited so employers and other
regulated entities are able to make the practical business
choices and profit-related decisions that sustain a vibrant
and dynamic free-enterprise system. And before rejecting
a business justification—or, in the case of a governmental
entity, an analogous public interest—a court must deter-
mine that a plaintiff has shown that there is “an available
alternative . . . practice that has less disparate impact and
serves the [entity’s] legitimate needs.” Ricci, supra, at
578. The cases interpreting Title VII and the ADEA pro-
vide essential background and instruction in the case now
before the Court.
Turning to the FHA, the ICP relies on two provisions.
Cite as: 576 U. S. ____ (2015) 11
Opinion of the Court
Section 804(a) provides that it shall be 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).
Here, the phrase “otherwise make unavailable” is of cen-
tral importance to the analysis that follows.
Section 805(a), in turn, provides:
“It shall be unlawful for any person or other entity
whose business includes engaging in real estate-
related transactions to discriminate against any per-
son in making available such a transaction, or in the
terms or conditions of such a transaction, because of
race, color, religion, sex, handicap, familial status, or
national origin.” §3605(a).
Applied here, the logic of Griggs and Smith provides
strong support for the conclusion that the FHA encom-
passes disparate-impact claims. Congress’ use of the
phrase “otherwise make unavailable” refers to the conse-
quences of an action rather than the actor’s intent. See
United States v. Giles, 300 U.S. 41, 48 (1937) (explaining
that the “word ‘make’ has many meanings, among them
‘[t]o cause to exist, appear or occur’ ” (quoting Webster’s
New International Dictionary 1485 (2d ed. 1934))). This
results-oriented language counsels in favor of recognizing
disparate-impact liability. See Smith, supra, at 236. The
Court has construed statutory language similar to §805(a)
to include disparate-impact liability. See, e.g., Board of
Ed. of City School Dist. of New York v. Harris, 444 U.S.
130, 140–141 (1979) (holding the term “discriminat[e]”
encompassed disparate-impact liability in the context of a
statute’s text, history, purpose, and structure).
12 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
Opinion of the Court
A comparison to the antidiscrimination statutes exam-
ined in Griggs and Smith is useful. Title VII’s and the
ADEA’s “otherwise adversely affect” language is equiva-
lent in function and purpose to the FHA’s “otherwise make
unavailable” language. In these three statutes the opera-
tive text looks to results. The relevant statutory phrases,
moreover, play an identical role in the structure common
to all three statutes: Located at the end of lengthy sen-
tences that begin with prohibitions on disparate treat-
ment, they serve as catchall phrases looking to conse-
quences, not intent. And all three statutes use the word
“otherwise” to introduce the results-oriented phrase.
“Otherwise” means “in a different way or manner,” thus
signaling a shift in emphasis from an actor’s intent to the
consequences of his actions. Webster’s Third New Inter-
national Dictionary 1598 (1971). This similarity in text
and structure is all the more compelling given that Con-
gress passed the FHA in 1968—only four years after pass-
ing Title VII and only four months after enacting the
ADEA.
It is true that Congress did not reiterate Title VII’s
exact language in the FHA, but that is because to do so
would have made the relevant sentence awkward and
unclear. A provision making it unlawful to “refuse to
sell[,] . . . or otherwise [adversely affect], a dwelling to any
person” because of a protected trait would be grammatically
obtuse, difficult to interpret, and far more expansive in
scope than Congress likely intended. Congress thus chose
words that serve the same purpose and bear the same
basic meaning but are consistent with the structure and
objectives of the FHA.
Emphasizing that the FHA uses the phrase “because of
race,” the Department argues this language forecloses
disparate-impact liability since “[a]n action is not taken
‘because of race’ unless race is a reason for the action.”
Brief for Petitioners 26. Griggs and Smith, however,
Cite as: 576 U. S. ____ (2015) 13
Opinion of the Court
dispose of this argument. Both Title VII and the ADEA
contain identical “because of ” language, see 42 U.S. C.
§2000e–2(a)(2); 29 U.S. C. §623(a)(2), and the Court
nonetheless held those statutes impose disparate-impact
liability.
In addition, it is of crucial importance that the existence
of disparate-impact liability is supported by amendments
to the FHA that Congress enacted in 1988. By that time,
all nine Courts of Appeals to have addressed the question
had concluded the Fair Housing Act encompassed disparate-
impact claims. See Huntington Branch, NAACP v.
Huntington, 844 F.2d 926, 935–936 (CA2 1988); Resident
Advisory Bd. v. Rizzo, 564 F.2d 126, 146 (CA3 1977);
Smith v. Clarkton, 682 F.2d 1055, 1065 (CA4 1982); Han-
son v. Veterans Administration, 800 F.2d 1381, 1386 (CA5
1986); Arthur v. Toledo, 782 F.2d 565, 574–575 (CA6
1986); Metropolitan Housing Development Corp. v. Arling-
ton Heights, 558 F.2d 1283, 1290 (CA7 1977); United
States v. Black Jack, 508 F.2d 1179, 1184–1185 (CA8
1974); Halet v. Wend Investment Co., 672 F.2d 1305, 1311
(CA9 1982); United States v. Marengo Cty. Comm’n, 731
F.2d 1546, 1559, n. 20 (CA11 1984).
When it amended the FHA, Congress was aware of this
unanimous precedent. And with that understanding, it
made a considered judgment to retain the relevant statu-
tory text. See H. R. Rep. No. 100–711, p. 21, n. 52 (1988)
(H. R. Rep.) (discussing suits premised on disparate-
impact claims and related judicial precedent); 134 Cong.
Rec. 23711 (1988) (statement of Sen. Kennedy) (noting
unanimity of Federal Courts of Appeals concerning dis-
parate impact); Fair Housing Amendments Act of 1987:
Hearings on S. 558 before the Subcommittee on the Con-
stitution of the Senate Committee on the Judiciary, 100th
Cong., 1st Sess., 529 (1987) (testimony of Professor Robert
Schwemm) (describing consensus judicial view that the
FHA imposed disparate-impact liability). Indeed, Con-
14 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
Opinion of the Court
gress rejected a proposed amendment that would have
eliminated disparate-impact liability for certain zoning
decisions. See H. R. Rep., at 89–93.
Against this background understanding in the legal and
regulatory system, Congress’ decision in 1988 to amend
the FHA while still adhering to the operative language in
§§804(a) and 805(a) is convincing support for the conclu-
sion that Congress accepted and ratified the unanimous
holdings of the Courts of Appeals finding disparate-impact
liability. “If a word or phrase has been . . . given a uni-
form interpretation by inferior courts . . . , a later version
of that act perpetuating the wording is presumed to carry
forward that interpretation.” A. Scalia & B. Garner,
Reading Law: The Interpretation of Legal Texts 322
(2012); see also Forest Grove School Dist. v. T. A., 557 U.S.
230, 244, n. 11 (2009) (“When Congress amended [the Act]
without altering the text of [the relevant provision], it
implicitly adopted [this Court’s] construction of the stat-
ute”); Manhattan Properties, Inc. v. Irving Trust Co., 291
U.S. 320, 336 (1934) (explaining, where the Courts of
Appeals had reached a consensus interpretation of the
Bankruptcy Act and Congress had amended the Act with-
out changing the relevant provision, “[t]his is persua-
sive that the construction adopted by the [lower federal]
courts has been acceptable to the legislative arm of the
government”).
Further and convincing confirmation of Congress’ un-
derstanding that disparate-impact liability exists under
the FHA is revealed by the substance of the 1988 amend-
ments. The amendments included three exemptions from
liability that assume the existence of disparate-impact
claims. The most logical conclusion is that the three
amendments were deemed necessary because Congress
presupposed disparate impact under the FHA as it had
been enacted in 1968.
The relevant 1988 amendments were as follows. First,
Cite as: 576 U. S. ____ (2015) 15
Opinion of the Court
Congress added a clarifying provision: “Nothing in [the
FHA] prohibits a person engaged in the business of fur-
nishing appraisals of real property to take into considera-
tion factors other than race, color, religion, national origin,
sex, handicap, or familial status.” 42 U.S. C. §3605(c).
Second, Congress provided: “Nothing in [the FHA] prohib-
its conduct against a person because such person has been
convicted by any court of competent jurisdiction of the
illegal manufacture or distribution of a controlled sub-
stance.” §3607(b)(4). And finally, Congress specified:
“Nothing in [the FHA] limits the applicability of any rea-
sonable . . . restrictions regarding the maximum number
of occupants permitted to occupy a dwelling.” §3607(b)(1).
The exemptions embodied in these amendments would
be superfluous if Congress had assumed that disparate-
impact liability did not exist under the FHA. See Gus-
tafson v. Alloyd Co., 513 U.S. 561, 574 (1995) (“[T]he
Court will avoid a reading which renders some words
altogether redundant”). Indeed, none of these amend-
ments would make sense if the FHA encompassed only
disparate-treatment claims. If that were the sole ground
for liability, the amendments merely restate black-letter
law. If an actor makes a decision based on reasons other
than a protected category, there is no disparate-treatment
liability. See, e.g., Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 254 (1981). But the amendments
do constrain disparate-impact liability. For instance,
certain criminal convictions are correlated with sex and
race. See, e.g., Kimbrough v. United States, 552 U.S. 85,
98 (2007) (discussing the racial disparity in convictions for
crack cocaine offenses). By adding an exemption from
liability for exclusionary practices aimed at individuals
with drug convictions, Congress ensured disparate-impact
liability would not lie if a landlord excluded tenants with
such convictions. The same is true of the provision allow-
ing for reasonable restrictions on occupancy. And the
16 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
Opinion of the Court
exemption from liability for real-estate appraisers is in the
same section as §805(a)’s prohibition of discriminatory
practices in real-estate transactions, thus indicating Con-
gress’ recognition that disparate-impact liability arose
under §805(a). In short, the 1988 amendments signal that
Congress ratified disparate-impact liability.
A comparison to Smith’s discussion of the ADEA further
demonstrates why the Department’s interpretation would
render the 1988 amendments superfluous. Under the
ADEA’s reasonable-factor-other-than-age (RFOA) provi-
sion, an employer is permitted to take an otherwise pro-
hibited action where “the differentiation is based on rea-
sonable factors other than age.” 29 U.S. C. §623(f )(1). In
other words, if an employer makes a decision based on a
reasonable factor other than age, it cannot be said to have
made a decision on the basis of an employee’s age. Accord-
ing to the Smith plurality, the RFOA provision “plays its
principal role” “in cases involving disparate-impact claims”
“by precluding liability if the adverse impact was attribut-
able to a nonage factor that was ‘reasonable.’ ” 544 U.S.,
at 239. The plurality thus reasoned that the RFOA provi-
sion would be “simply unnecessary to avoid liability under
the ADEA” if liability were limited to disparate-treatment
claims. Id., at 238.
A similar logic applies here. If a real-estate appraiser
took into account a neighborhood’s schools, one could not
say the appraiser acted because of race. And by embed-
ding 42 U.S. C. §3605(c)’s exemption in the statutory text,
Congress ensured that disparate-impact liability would
not be allowed either. Indeed, the inference of disparate-
impact liability is even stronger here than it was in Smith.
As originally enacted, the ADEA included the RFOA pro-
vision, see §4(f)(1), 81 Stat. 603, whereas here Congress
added the relevant exemptions in the 1988 amendments
against the backdrop of the uniform view of the Courts of
Appeals that the FHA imposed disparate-impact liability.
Cite as: 576 U. S. ____ (2015) 17
Opinion of the Court
Recognition of disparate-impact claims is consistent
with the FHA’s central purpose. See Smith, supra, at 235
(plurality opinion); Griggs, 401 U.S., at 432. The FHA,
like Title VII and the ADEA, was enacted to eradicate
discriminatory practices within a sector of our Nation’s
economy. See 42 U.S. C. §3601 (“It is the policy of the
United States to provide, within constitutional limitations,
for fair housing throughout the United States”); H. R.
Rep., at 15 (explaining the FHA “provides a clear national
policy against discrimination in housing”).
These unlawful practices include zoning laws and other
housing restrictions that function unfairly to exclude
minorities from certain neighborhoods without any suffi-
cient justification. Suits targeting such practices reside at
the heartland of disparate-impact liability. See, e.g.,
Huntington, 488 U.S., at 16–18 (invalidating zoning law
preventing construction of multifamily rental units); Black
Jack, 508 F.2d, at 1182–1188 (invalidating ordinance
prohibiting construction of new multifamily dwellings);
Greater New Orleans Fair Housing Action Center v. St.
Bernard Parish, 641 F. Supp. 2d 563, 569, 577–578 (ED
La. 2009) (invalidating post-Hurricane Katrina ordinance
restricting the rental of housing units to only “ ‘blood
relative[s]’ ” in an area of the city that was 88.3% white
and 7.6% black); see also Tr. of Oral Arg. 52–53 (discuss-
ing these cases). The availability of disparate-impact
liability, furthermore, has allowed private developers to
vindicate the FHA’s objectives and to protect their prop-
erty rights by stopping municipalities from enforcing arbi-
trary and, in practice, discriminatory ordinances barring
the construction of certain types of housing units. See,
e.g., Huntington, supra, at 18. Recognition of disparate-
impact liability under the FHA also plays a role in uncov-
ering discriminatory intent: It permits plaintiffs to coun-
teract unconscious prejudices and disguised animus that
escape easy classification as disparate treatment. In this
18 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
Opinion of the Court
way disparate-impact liability may prevent segregated
housing patterns that might otherwise result from covert
and illicit stereotyping.
But disparate-impact liability has always been properly
limited in key respects that avoid the serious constitutional
questions that might arise under the FHA, for instance,
if such liability were imposed based solely on a showing of
a statistical disparity. Disparate-impact liability man-
dates the “removal of artificial, arbitrary, and unnecessary
barriers,” not the displacement of valid governmental
policies. Griggs, supra, at 431. The FHA is not an in-
strument to force housing authorities to reorder their
priorities. Rather, the FHA aims to ensure that those
priorities can be achieved without arbitrarily creating
discriminatory effects or perpetuating segregation.
Unlike the heartland of disparate-impact suits targeting
artificial barriers to housing, the underlying dispute in
this case involves a novel theory of liability. See Seicsh-
naydre, Is Disparate Impact Having Any Impact? An
Appellate Analysis of Forty Years of Disparate Impact
Claims Under the Fair Housing Act, 63 Am. U. L. Rev.
357, 360–363 (2013) (noting the rarity of this type of
claim). This case, on remand, may be seen simply as an
attempt to second-guess which of two reasonable ap-
proaches a housing authority should follow in the sound
exercise of its discretion in allocating tax credits for low-
income housing.
An important and appropriate means of ensuring that
disparate-impact liability is properly limited is to give
housing authorities and private developers leeway to state
and explain the valid interest served by their policies.
This step of the analysis is analogous to the business
necessity standard under Title VII and provides a defense
against disparate-impact liability. See 78 Fed. Reg. 11470
(explaining that HUD did not use the phrase “business
necessity” because that “phrase may not be easily under-
Cite as: 576 U. S. ____ (2015) 19
Opinion of the Court
stood to cover the full scope of practices covered by the
Fair Housing Act, which applies to individuals, busi-
nesses, nonprofit organizations, and public entities”). As the
Court explained in Ricci, an entity “could be liable for
disparate-impact discrimination only if the [challenged
practices] were not job related and consistent with busi-
ness necessity.” 557 U.S., at 587. Just as an employer
may maintain a workplace requirement that causes a
disparate impact if that requirement is a “reasonable
measure[ment] of job performance,” Griggs, supra, at 436,
so too must housing authorities and private developers be
allowed to maintain a policy if they can prove it is neces-
sary to achieve a valid interest. To be sure, the Title VII
framework may not transfer exactly to the fair-housing
context, but the comparison suffices for present purposes.
It would be paradoxical to construe the FHA to impose
onerous costs on actors who encourage revitalizing dilapi-
dated housing in our Nation’s cities merely because some
other priority might seem preferable. Entrepreneurs must
be given latitude to consider market factors. Zoning offi-
cials, moreover, must often make decisions based on a mix
of factors, both objective (such as cost and traffic patterns)
and, at least to some extent, subjective (such as preserving
historic architecture). These factors contribute to a com-
munity’s quality of life and are legitimate concerns for
housing authorities. The FHA does not decree a particular
vision of urban development; and it does not put housing
authorities and private developers in a double bind of
liability, subject to suit whether they choose to rejuvenate
a city core or to promote new low-income housing in sub-
urban communities. As HUD itself recognized in its re-
cent rulemaking, disparate-impact liability “does not
mandate that affordable housing be located in neighbor-
hoods with any particular characteristic.” 78 Fed. Reg.
11476.
In a similar vein, a disparate-impact claim that relies on
20 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
Opinion of the Court
a statistical disparity must fail if the plaintiff cannot point
to a defendant’s policy or policies causing that disparity.
A robust causality requirement ensures that “[r]acial
imbalance . . . does not, without more, establish a prima
facie case of disparate impact” and thus protects defend-
ants from being held liable for racial disparities they did
not create. Wards Cove Packing Co. v. Atonio, 490 U.S.
642, 653 (1989), superseded by statute on other grounds,
42 U.S. C. §2000e–2(k). Without adequate safeguards at
the prima facie stage, disparate-impact liability might
cause race to be used and considered in a pervasive way
and “would almost inexorably lead” governmental or
private entities to use “numerical quotas,” and serious
constitutional questions then could arise. 490 U.S., at 653.
The litigation at issue here provides an example. From
the standpoint of determining advantage or disadvantage
to racial minorities, it seems difficult to say as a general
matter that a decision to build low-income housing in a
blighted inner-city neighborhood instead of a suburb is
discriminatory, or vice versa. If those sorts of judgments
are subject to challenge without adequate safeguards,
then there is a danger that potential defendants may
adopt racial quotas—a circumstance that itself raises
serious constitutional concerns.
Courts must therefore examine with care whether a
plaintiff has made out a prima facie case of disparate
impact and prompt resolution of these cases is important.
A plaintiff who fails to allege facts at the pleading stage or
produce statistical evidence demonstrating a causal con-
nection cannot make out a prima facie case of disparate
impact. For instance, a plaintiff challenging the decision
of a private developer to construct a new building in one
location rather than another will not easily be able to
show this is a policy causing a disparate impact because
such a one-time decision may not be a policy at all. It may
also be difficult to establish causation because of the mul-
Cite as: 576 U. S. ____ (2015) 21
Opinion of the Court
tiple factors that go into investment decisions about where
to construct or renovate housing units. And as Judge
Jones observed below, if the ICP cannot show a causal
connection between the Department’s policy and a dispar-
ate impact—for instance, because federal law substantially
limits the Department’s discretion—that should result
in dismissal of this case. 747 F.3d, at 283–284 (specially
concurring opinion).
The FHA imposes a command with respect to disparate-
impact liability. Here, that command goes to a state
entity. In other cases, the command will go to a private
person or entity. Governmental or private policies are not
contrary to the disparate-impact requirement unless they
are “artificial, arbitrary, and unnecessary barriers.”
Griggs, 401 U.S., at 431. Difficult questions might arise if
disparate-impact liability under the FHA caused race to be
used and considered in a pervasive and explicit manner to
justify governmental or private actions that, in fact, tend
to perpetuate race-based considerations rather than move
beyond them. Courts should avoid interpreting disparate-
impact liability to be so expansive as to inject racial con-
siderations into every housing decision.
The limitations on disparate-impact liability discussed
here are also necessary to protect potential defendants
against abusive disparate-impact claims. If the specter of
disparate-impact litigation causes private developers to no
longer construct or renovate housing units for low-income
individuals, then the FHA would have undermined its own
purpose as well as the free-market system. And as to
governmental entities, they must not be prevented from
achieving legitimate objectives, such as ensuring compli-
ance with health and safety codes. The Department’s
amici, in addition to the well-stated principal dissenting
opinion in this case, see post, at 1–2, 29–30 (opinion of
ALITO, J.), call attention to the decision by the Court of
Appeals for the Eighth Circuit in Gallagher v. Magner,
22 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
Opinion of the Court
619 F.3d 823 (2010). Although the Court is reluctant to
approve or disapprove a case that is not pending, it should
be noted that Magner was decided without the cautionary
standards announced in this opinion and, in all events, the
case was settled by the parties before an ultimate deter-
mination of disparate-impact liability.
Were standards for proceeding with disparate-impact
suits not to incorporate at least the safeguards discussed
here, then disparate-impact liability might displace valid
governmental and private priorities, rather than solely
“remov[ing] . . . artificial, arbitrary, and unnecessary
barriers.” Griggs, 401 U.S., at 431. And that, in turn,
would set our Nation back in its quest to reduce the sali-
ence of race in our social and economic system.
It must be noted further that, even when courts do find
liability under a disparate-impact theory, their remedial
orders must be consistent with the Constitution. Remedial
orders in disparate-impact cases should concentrate on
the elimination of the offending practice that “arbitrar[ily]
. . . operate[s] invidiously to discriminate on the basis of
rac[e].” Ibid. If additional measures are adopted, courts
should strive to design them to eliminate racial disparities
through race-neutral means. See Richmond v. J. A.
Croson Co., 488 U.S. 469, 510 (1989) (plurality opinion)
(“[T]he city has at its disposal a whole array of race-
neutral devices to increase the accessibility of city con-
tracting opportunities to small entrepreneurs of all races”).
Remedial orders that impose racial targets or quotas
might raise more difficult constitutional questions.
While the automatic or pervasive injection of race into
public and private transactions covered by the FHA has
special dangers, it is also true that race may be considered
in certain circumstances and in a proper fashion. Cf.
Parents Involved in Community Schools v. Seattle School
Dist. No. 1, 551 U.S. 701, 789 (2007) (KENNEDY, J., con-
curring in part and concurring in judgment) (“School
Cite as: 576 U. S. ____ (2015) 23
Opinion of the Court
boards may pursue the goal of bringing together students
of diverse backgrounds and races through other means,
including strategic site selection of new schools; [and]
drawing attendance zones with general recognition of the
demographics of neighborhoods”). Just as this Court has
not “question[ed] an employer’s affirmative efforts to
ensure that all groups have a fair opportunity to apply for
promotions and to participate in the [promotion] process,”
Ricci, 557 U.S., at 585, it likewise does not impugn hous-
ing authorities’ race-neutral efforts to encourage revitali-
zation of communities that have long suffered the harsh
consequences of segregated housing patterns. When
setting their larger goals, local housing authorities may
choose to foster diversity and combat racial isolation with
race-neutral tools, and mere awareness of race in attempt-
ing to solve the problems facing inner cities does not doom
that endeavor at the outset.
The Court holds that disparate-impact claims are cog-
nizable under the Fair Housing Act upon considering its
results-oriented language, the Court’s interpretation of
similar language in Title VII and the ADEA, Congress’
ratification of disparate-impact claims in 1988 against the
backdrop of the unanimous view of nine Courts of Appeals,
and the statutory purpose.
III
In light of the longstanding judicial interpretation of the
FHA to encompass disparate-impact claims and congres-
sional reaffirmation of that result, residents and policy-
makers have come to rely on the availability of disparate-
impact claims. See Brief for Massachusetts et al. as Amici
Curiae 2 (“Without disparate impact claims, States and
others will be left with fewer crucial tools to combat the
kinds of systemic discrimination that the FHA was in-
tended to address”). Indeed, many of our Nation’s largest
cities—entities that are potential defendants in disparate-
24 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
Opinion of the Court
impact suits—have submitted an amicus brief in this case
supporting disparate-impact liability under the FHA. See
Brief for City of San Francisco et al. as Amici Curiae 3–6.
The existence of disparate-impact liability in the substan-
tial majority of the Courts of Appeals for the last several
decades “has not given rise to . . . dire consequences.”
Hosanna-Tabor Evangelical Lutheran Church and School
v. EEOC, 565 U. S. ___, ___ (2012) (slip op., at 21).
Much progress remains to be made in our Nation’s
continuing struggle against racial isolation. In striving to
achieve our “historic commitment to creating an integrated
society,” Parents Involved, supra, at 797 (KENNEDY, J.,
concurring in part and concurring in judgment), we must
remain wary of policies that reduce homeowners to noth-
ing more than their race. But since the passage of the
Fair Housing Act in 1968 and against the backdrop of
disparate-impact liability in nearly every jurisdiction,
many cities have become more diverse. The FHA must
play an important part in avoiding the Kerner Commis-
sion’s grim prophecy that “[o]ur Nation is moving toward
two societies, one black, one white—separate and un-
equal.” Kerner Commission Report 1. The Court acknowl-
edges the Fair Housing Act’s continuing role in moving the
Nation toward a more integrated society.
The judgment of the Court of Appeals for the Fifth
Circuit is affirmed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
Cite as: 576 U. S. ____ (2015) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–1371
_________________
TEXAS DEPARTMENT OF HOUSING AND COMMU-
NITY AFFAIRS, ET AL., PETITIONERS v. THE IN-
CLUSIVE COMMUNITIES PROJECT, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 25, 2015]
JUSTICE THOMAS, dissenting.
I join JUSTICE ALITO’s dissent in full. I write separately
to point out that the foundation on which the Court builds
its latest disparate-impact regime—Griggs v. Duke Power
Co., 401 U.S. 424 (1971)—is made of sand. That decision,
which concluded that Title VII of the Civil Rights Act of
1964 authorizes plaintiffs to bring disparate-impact
claims, id., at 429–431, represents the triumph of an
agency’s preferences over Congress’ enactment and of
assumption over fact. Whatever respect Griggs merits as
a matter of stare decisis, I would not amplify its error by
importing its disparate-impact scheme into yet another
statute.
I
A
We should drop the pretense that Griggs’ interpretation
of Title VII was legitimate. “The Civil Rights Act of 1964
did not include an express prohibition on policies or prac-
tices that produce a disparate impact.” Ricci v. DeStefano,
557 U.S. 557, 577 (2009). It did not include an implicit
one either. Instead, Title VII’s operative provision, 42
U.S. C. §2000e–2(a) (1964 ed.), addressed only employer
decisions motivated by a protected characteristic. That
2 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
THOMAS, J., dissenting
provision made it “an unlawful employment practice for an
employer—
“(1) to fail or refuse to hire or to discharge any indi-
vidual, or otherwise to discriminate against any indi-
vidual with respect to his compensation, terms, condi-
tions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national
origin; or
“(2) to limit, segregate, or classify his employees in
any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise
adversely affect his status as an employee, because of
such individual’s race, color, religion, sex, or national
origin.” §703, 78 Stat. 255 (emphasis added).1
Each paragraph in §2000e–2(a) is limited to actions taken
“because of ” a protected trait, and “the ordinary meaning
of ‘because of ’ is ‘by reason of ’ or ‘on account of,’ ” Univer-
sity of Tex. Southwestern Medical Center v. Nassar, 570
U. S. ___, ___ (2013) (slip op., at 9) (some internal quota-
tion marks omitted). Section 2000e–2(a) thus applies only
when a protected characteristic “was the ‘reason’ that the
employer decided to act.” Id., at ___ (slip op., at 10) (some
internal quotation marks omitted).2 In other words, “to
——————
1 Thecurrent version of §2000e–2(a) is almost identical, except that
§2000e–2(a)(2) makes it unlawful for an employer “to limit, segregate,
or classify his employees or applicants for employment in any way
which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee,
because of such individual’s race, color, religion, sex, or national origin.”
(Emphasis added.) This change, which does not impact my analysis,
was made in 1972. 86 Stat. 109.
2 In 1991, Congress added §2000e–2(m) to Title VII, which permits a
plaintiff to establish that an employer acted “because of” a protected
characteristic by showing that the characteristic was “a motivating
factor” in the employer’s decision. Civil Rights Act of 1991, §107(a), 105
Stat. 1075. That amended definition obviously does not legitimize
disparate-impact liability, which is distinguished from disparate-
Cite as: 576 U. S. ____ (2015) 3
THOMAS, J., dissenting
take action against an individual because of ” a protected
trait “plainly requires discriminatory intent.” See Smith
v. City of Jackson, 544 U.S. 228, 249 (2005) (O’Connor, J.,
joined by KENNEDY and THOMAS, JJ., concurring in judg-
ment) (internal quotation marks omitted); accord, e.g.,
Gross v. FBL Financial Services, Inc., 557 U.S. 167, 176
(2009).
No one disputes that understanding of §2000e–2(a)(1).
We have repeatedly explained that a plaintiff bringing an
action under this provision “must establish ‘that the de-
fendant had a discriminatory intent or motive’ for taking a
job-related action.” Ricci, supra, at 577 (quoting Watson v.
Fort Worth Bank & Trust, 487 U.S. 977, 986 (1988)). The
only dispute is whether the same language—“because of
”—means something different in §2000e–2(a)(2) than it
does in §2000e–2(a)(1).
The answer to that question should be obvious. We
ordinarily presume that “identical words used in different
parts of the same act are intended to have the same mean-
ing,” Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003)
(internal quotation marks omitted), and §2000e–2(a)(2)
contains nothing to warrant a departure from that pre-
sumption. That paragraph “uses the phrase ‘because of
. . . [a protected characteristic]’ in precisely the same
manner as does the preceding paragraph—to make plain
that an employer is liable only if its adverse action against
an individual is motivated by the individual’s [protected
characteristic].” Smith, supra, at 249 (opinion of
O’Connor, J.) (interpreting nearly identical provision of
the Age Discrimination in Employment Act of 1967
(ADEA)).
The only difference between §2000e–2(a)(1) and §2000e–
2(a)(2) is the type of employment decisions they address.
——————
treatment liability precisely because the former does not require any
discriminatory motive.
4 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
THOMAS, J., dissenting
See Smith, supra, at 249 (opinion of O’Connor, J.). Section
2000e–2(a)(1) addresses hiring, firing, and setting the
terms of employment, whereas §2000e–2(a)(2) generally
addresses limiting, segregating, or classifying employees.
But no decision is an unlawful employment practice under
these paragraphs unless it occurs “because of such indi-
vidual’s race, color, religion, sex, or national origin.”
§§2000e–2(a)(1), (2) (emphasis added).
Contrary to the majority’s assumption, see ante, at 10–
13, the fact that §2000e–2(a)(2) uses the phrase “otherwise
adversely affect” in defining the employment decisions
targeted by that paragraph does not eliminate its mandate
that the prohibited decision be made “because of ” a pro-
tected characteristic. Section 2000e–2(a)(2) does not make
unlawful all employment decisions that “limit, segregate,
or classify . . . employees . . . in any way which would . . .
otherwise adversely affect [an individual’s] status as an
employee,” but those that “otherwise adversely affect [an
individual’s] status as an employee, because of such indi-
vidual’s race, color, religion, sex, or national origin.”
(Emphasis added); accord, 78 Stat. 255. Reading §2000e–
2(a)(2) to sanction employers solely on the basis of the
effects of their decisions would delete an entire clause of
this provision, a result we generally try to avoid. Under
any fair reading of the text, there can be no doubt that the
Title VII enacted by Congress did not permit disparate-
impact claims.3
——————
3 Even “[f ]ans . . . of Griggs [v. Duke Power Co., 401 U.S. 424 (1971),]
tend to agree that the decision is difficult to square with the available
indications of congressional intent.” Lemos, The Consequences of
Congress’s Choice of Delegate: Judicial and Agency Interpretations of
Title VII, 63 Vand. L. Rev. 363, 399, n. 155 (2010). In the words of one
of the decision’s defenders, Griggs “was poorly reasoned and vulnerable
to the charge that it represented a significant leap away from the
expectations of the enacting Congress.” W. Eskridge, Dynamic Statu-
tory Interpretation 78 (1994).
Cite as: 576 U. S. ____ (2015) 5
THOMAS, J., dissenting
B
The author of disparate-impact liability under Title VII
was not Congress, but the Equal Employment Opportunity
Commission (EEOC). EEOC’s “own official history of
these early years records with unusual candor the com-
mission’s fundamental disagreement with its founding
charter, especially Title VII’s literal requirement that the
discrimination be intentional.” H. Graham, The Civil
Rights Era: Origins and Development of National Policy
1960–1972, p. 248 (1990). The Commissioners and their
legal staff thought that “discrimination” had become “less
often an individual act of disparate treatment flowing
from an evil state of mind” and “more institutionalized.”
Jackson, EEOC vs. Discrimination, Inc., 75 The Crisis 16
(1968). They consequently decided they should target
employment practices “which prove to have a demonstra-
ble racial effect without a clear and convincing business
motive.” Id., at 16–17 (emphasis deleted). EEOC’s “legal
staff was aware from the beginning that a normal, tradi-
tional, and literal interpretation of Title VII could blunt
their efforts” to penalize employers for practices that had a
disparate impact, yet chose “to defy Title VII’s restrictions
and attempt to build a body of case law that would justify
[their] focus on effects and [their] disregard of intent.”
Graham, supra, at 248, 250.
The lack of legal authority for their agenda apparently
did not trouble them much. For example, Alfred Blum-
rosen, one of the principal creators of disparate-impact
liability at EEOC, rejected what he described as a “defeat-
ist view of Title VII” that saw the statute as a “compro-
mise” with a limited scope. A. Blumrosen, Black Employ-
ment and the Law 57–58 (1971). Blumrosen “felt that
most of the problems confronting the EEOC could be
solved by creative interpretation of Title VII which would
be upheld by the courts, partly out of deference to the
administrators.” Id., at 59.
6 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
THOMAS, J., dissenting
EEOC’s guidelines from those years are a case study in
Blumrosen’s “creative interpretation.” Although EEOC
lacked substantive rulemaking authority, see Faragher v.
Boca Raton, 524 U.S. 775, 811, n. 1 (1998) (THOMAS, J.,
dissenting), it repeatedly issued guidelines on the subject
of disparate impact. In 1966, for example, EEOC issued
guidelines suggesting that the use of employment tests in
hiring decisions could violate Title VII based on disparate
impact, notwithstanding the statute’s express statement
that “it shall not be an unlawful employment practice . . .
to give and to act upon the results of any professionally
developed ability test provided that such test . . . is not
designed, intended, or used to discriminate because of
race, color, religion, sex, or national origin,” §2000e–2(h)
(emphasis added). See EEOC, Guidelines on Employment
Testing Procedures 2–4 (Aug. 24, 1966). EEOC followed
this up with a 1970 guideline that was even more explicit,
declaring that, unless certain criteria were met, “[t]he use
of any test which adversely affects hiring, promotion,
transfer or any other employment or membership oppor-
tunity of classes protected by title VII constitutes discrim-
ination.” 35 Fed. Reg. 12334 (1970).
EEOC was initially hesitant to take its approach to this
Court, but the Griggs plaintiffs forced its hand. After they
lost on their disparate-impact argument in the Court of
Appeals, EEOC’s deputy general counsel urged the plain-
tiffs not to seek review because he believed “ ‘that the
record in the case present[ed] a most unappealing situa-
tion for finding tests unlawful,’ ” even though he found the
lower court’s adherence to an intent requirement to be
“ ‘tragic.’ ” Graham, supra, at 385. The plaintiffs ignored
his advice. Perhaps realizing that a ruling on its disparate-
impact theory was inevitable, EEOC filed an amicus
brief in this Court seeking deference for its position.4
——————
4 Efforts by Executive Branch officials to influence this Court’s dis-
Cite as: 576 U. S. ____ (2015) 7
THOMAS, J., dissenting
EEOC’s strategy paid off. The Court embraced EEOC’s
theory of disparate impact, concluding that the agency’s
position was “entitled to great deference.” See Griggs, 401
U.S., at 433–434. With only a brief nod to the text of
§2000e–2(a)(2) in a footnote, id., at 426, n. 1, the Court
tied this novel theory of discrimination to “the statute’s
perceived purpose” and EEOC’s view of the best way of
effectuating it, Smith, 544 U.S., at 262 (opinion of
O’Connor, J.); see id., at 235 (plurality opinion). But
statutory provisions—not purposes—go through the pro-
cess of bicameralism and presentment mandated by our
Constitution. We should not replace the former with the
latter, see Wyeth v. Levine, 555 U.S. 555, 586 (2009)
(THOMAS, J., concurring in judgment), nor should we
transfer our responsibility for interpreting those provi-
sions to administrative agencies, let alone ones lacking
substantive rulemaking authority, see Perez v. Mortgage
Bankers Assn., 575 U. S. ___, ___–___ (2015) (THOMAS, J.,
concurring in judgment) (slip op., at 8–13).
——————
parate-impact jurisprudence may not be a thing of the past. According
to a joint congressional staff report, after we granted a writ of certiorari
in Magner v. Gallagher, 564 U. S. ___ (2011), to address whether the
Fair Housing Act created disparate-impact liability, then-Assistant
Attorney General Thomas E. Perez—now Secretary of Labor—entered
into a secret deal with the petitioners in that case, various officials of
St. Paul, Minnesota, to prevent this Court from answering the question.
Perez allegedly promised the officials that the Department of Justice
would not intervene in two qui tam complaints then pending against St.
Paul in exchange for the city’s dismissal of the case. See House Com-
mittee on Oversight and Government Reform, Senate Committee on the
Judiciary, and House Committee on the Judiciary, DOJ’s Quid Pro Quo
With St. Paul: How Assistant Attorney General Thomas Perez Manipu-
lated Justice and Ignored the Rule of Law, Joint Staff Report, 113th
Cong., 1st Sess., pp. 1–2 (2013). Additionally, just nine days after we
granted a writ of certiorari in Magner, and before its dismissal, the De-
partment of Housing and Urban Development proposed the disparate-
impact regulation at issue in this case. See 76 Fed. Reg. 70921
(2011).
8 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
THOMAS, J., dissenting
II
Griggs’ disparate-impact doctrine defies not only the
statutory text, but reality itself. In their quest to eradi-
cate what they view as institutionalized discrimination,
disparate-impact proponents doggedly assume that a
given racial disparity at an institution is a product of that
institution rather than a reflection of disparities that exist
outside of it. See T. Sowell, Intellectuals and Race 132
(2013) (Sowell). That might be true, or it might not.
Standing alone, the fact that a practice has a disparate
impact is not conclusive evidence, as the Griggs Court
appeared to believe, that a practice is “discriminatory,”
401 U.S., at 431. “Although presently observed racial
imbalance might result from past [discrimination], racial
imbalance can also result from any number of innocent
private decisions.” Parents Involved in Community
Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 750
(2007) (THOMAS, J., concurring) (emphasis added).5 We
should not automatically presume that any institution
with a neutral practice that happens to produce a racial
disparity is guilty of discrimination until proved innocent.
As best I can tell, the reason for this wholesale inversion
of our law’s usual approach is the unstated—and unsub-
stantiated—assumption that, in the absence of discrimina-
tion, an institution’s racial makeup would mirror that of
society. But the absence of racial disparities in multi-
——————
5 It takes considerable audacity for today’s majority to describe the
origins of racial imbalances in housing, ante, at 5–6, without acknowl-
edging this Court’s role in the development of this phenomenon. In the
past, we have admitted that the sweeping desegregation remedies of
the federal courts contributed to “ ‘white flight’ ” from our Nation’s
cities, see Missouri v. Jenkins, 515 U.S. 70, 95, n. 8 (1995); id., at 114
(THOMAS, J., concurring), in turn causing the racial imbalances that
make it difficult to avoid disparate impact from housing development
decisions. Today’s majority, however, apparently is as content to
rewrite history as it is to rewrite statutes.
Cite as: 576 U. S. ____ (2015) 9
THOMAS, J., dissenting
ethnic societies has been the exception, not the rule.
When it comes to “proportiona[l] represent[ation]” of eth-
nic groups, “few, if any, societies have ever approximated
this description.” D. Horowitz, Ethnic Groups in Conflict
677 (1985). “All multi-ethnic societies exhibit a tendency
for ethnic groups to engage in different occupations, have
different levels (and, often, types) of education, receive
different incomes, and occupy a different place in the
social hierarchy.” Weiner, The Pursuit of Ethnic Equality
Through Preferential Policies: A Comparative Public
Policy Perspective, in From Independence to Statehood 64
(R. Goldmann & A. Wilson eds. 1984).
Racial imbalances do not always disfavor minorities. At
various times in history, “racial or ethnic minorities . . .
have owned or directed more than half of whole industries
in particular nations.” Sowell 8. These minorities “have
included the Chinese in Malaysia, the Lebanese in West
Africa, Greeks in the Ottoman Empire, Britons in Argen-
tina, Belgians in Russia, Jews in Poland, and Spaniards in
Chile—among many others.” Ibid. (footnotes omitted). “In
the seventeenth century Ottoman Empire,” this phenome-
non was seen in the palace itself, where the “medical staff
consisted of 41 Jews and 21 Muslims.” Ibid. And in our
own country, for roughly a quarter-century now, over 70
percent of National Basketball Association players have
been black. R. Lapchick, D. Donovan, E. Loomer, & L.
Martinez, Institute for Diversity and Ethics in Sport, U. of
Central Fla., The 2014 Racial and Gender Report Card:
National Basketball Association 21 (June 24, 2014). To
presume that these and all other measurable disparities
are products of racial discrimination is to ignore the com-
plexities of human existence.
Yet, if disparate-impact liability is not based on this
assumption and is instead simply a way to correct for
imbalances that do not result from any unlawful conduct,
it is even less justifiable. This Court has repeatedly reaf-
10 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
THOMAS, J., dissenting
firmed that “ ‘racial balancing’ ” by state actors is “ ‘pat-
ently unconstitutional,’ ” even when it supposedly springs
from good intentions. Fisher v. University of Tex. at Aus-
tin, 570 U. S. ___, ___ (2013) (slip op., at 9). And if that
“racial balancing” is achieved through disparate-impact
claims limited to only some groups—if, for instance, white
basketball players cannot bring disparate-impact suits—
then we as a Court have constructed a scheme that parcels
out legal privileges to individuals on the basis of skin
color. A problem with doing so should be obvious: “Gov-
ernment action that classifies individuals on the basis of
race is inherently suspect.” Schuette v. BAMN, 572 U. S.
___, ___ (2014) (plurality opinion) (slip op., at 12); accord,
id., at ___ (SCALIA, J., concurring in judgment) (slip op., at
9). That is no less true when judges are the ones doing the
classifying. See id., at ___ (plurality opinion) (slip op., at
12); id., at ___ (SCALIA, J., concurring in judgment) (slip
op., at 9). Disparate-impact liability is thus a rule without
a reason, or at least without a legitimate one.
III
The decision in Griggs was bad enough, but this Court’s
subsequent decisions have allowed it to move to other
areas of the law. In Smith, for example, a plurality of this
Court relied on Griggs to include disparate-impact liability
in the ADEA. See 544 U.S., at 236. As both I and the
author of today’s majority opinion recognized at the time,
that decision was as incorrect as it was regrettable. See
id., at 248–249 (O’Connor, J., joined by KENNEDY and
THOMAS, JJ., concurring in judgment). Because we knew
that Congress did not create disparate-impact liability
under Title VII, we explained that “there [wa]s no reason
to suppose that Congress in 1967”—four years before
Griggs—“could have foreseen the interpretation of Title
VII that was to come.” Smith, supra, at 260 (opinion of
O’Connor, J.). It made little sense to repeat Griggs’ error
Cite as: 576 U. S. ____ (2015) 11
THOMAS, J., dissenting
in a new context.
My position remains the same. Whatever deference is
due Griggs as a matter of stare decisis, we should at the
very least confine it to Title VII. We should not incorpo-
rate it into statutes such as the Fair Housing Act and the
ADEA, which were passed years before Congress had any
reason to suppose that this Court would take the position
it did in Griggs. See Smith, supra, at 260 (opinion of
O’Connor, J.). And we should certainly not allow it to
spread to statutes like the Fair Housing Act, whose opera-
tive text, unlike that of the ADEA’s, does not even mirror
Title VII’s.
Today, however, the majority inexplicably declares that
“the logic of Smith and Griggs” leads to the conclusion that
“the FHA encompasses disparate-impact claims.” Ante, at
11. JUSTICE ALITO ably dismantles this argument. Post,
at 21–28 (dissenting opinion). But, even if the majority
were correct, I would not join it in following that “logic”
here. “[E]rroneous precedents need not be extended to
their logical end, even when dealing with related provi-
sions that normally would be interpreted in lockstep.
Otherwise, stare decisis, designed to be a principle of
stability and repose, would become a vehicle of change . . .
distorting the law.” CBOCS West, Inc. v. Humphries, 553
U.S. 442, 469–470 (2008) (THOMAS, J., dissenting) (foot-
note omitted). Making the same mistake in different
areas of the law furthers neither certainty nor judicial
economy. It furthers error.
That error will take its toll. The recent experience of
the Houston Housing Authority (HHA) illustrates some of
the many costs of disparate-impact liability. HHA, which
provides affordable housing developments to low-income
residents of Houston, has over 43,000 families on its wait-
ing lists. The overwhelming majority of those families are
black. Because Houston is a majority-minority city with
minority concentrations in all but the more affluent areas,
12 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
THOMAS, J., dissenting
any HHA developments built outside of those areas will
increase the concentration of racial minorities. Unsurpris-
ingly, the threat of disparate-impact suits based on those
concentrations has hindered HHA’s efforts to provide
affordable housing. State and federal housing agencies
have refused to approve all but two of HHA’s eight pro-
posed development projects over the past two years out of
fears of disparate-impact liability. Brief for Houston
Housing Authority as Amicus Curiae 8–12. That the
majority believes that these are not “ ‘dire consequences,’ ”
see ante, at 24, is cold comfort for those who actually need
a home.
* * *
I agree with the majority that Griggs “provide[s] essen-
tial background” in this case, ante, at 10: It shows that our
disparate-impact jurisprudence was erroneous from its
inception. Divorced from text and reality, driven by an
agency with its own policy preferences, Griggs bears little
relationship to the statutory interpretation we should
expect from a court of law. Today, the majority repeats
that error.
I respectfully dissent.
Cite as: 576 U. S. ____ (2015) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–1371
_________________
TEXAS DEPARTMENT OF HOUSING AND COMMU-
NITY AFFAIRS, ET AL., PETITIONERS v. THE IN-
CLUSIVE COMMUNITIES PROJECT, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 25, 2015]
JUSTICE ALITO, with whom THE CHIEF JUSTICE, JUSTICE
SCALIA, and JUSTICE THOMAS join, dissenting.
No one wants to live in a rat’s nest. Yet in Gallagher v.
Magner, 619 F.3d 823 (2010), a case that we agreed to
review several Terms ago, the Eighth Circuit held that the
Fair Housing Act (or FHA), 42 U.S. C. §3601 et seq., could
be used to attack St. Paul, Minnesota’s efforts to combat
“rodent infestation” and other violations of the city’s hous-
ing code. 619 F.3d, at 830. The court agreed that there
was no basis to “infer discriminatory intent” on the part of
St. Paul. Id., at 833. Even so, it concluded that the city’s
“aggressive enforcement of the Housing Code” was action-
able because making landlords respond to “rodent infesta-
tion, missing dead-bolt locks, inadequate sanitation facili-
ties, inadequate heat, inoperable smoke detectors, broken
or missing doors,” and the like increased the price of rent.
Id., at 830, 835. Since minorities were statistically more
likely to fall into “the bottom bracket for household ad-
justed median family income,” they were disproportionately
affected by those rent increases, i.e., there was a “dis-
parate impact.” Id., at 834. The upshot was that even St.
Paul’s good-faith attempt to ensure minimally acceptable
housing for its poorest residents could not ward off a
disparate-impact lawsuit.
2 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
ALITO, J., dissenting
Today, the Court embraces the same theory that drove
the decision in Magner.1 This is a serious mistake. The
Fair Housing Act does not create disparate-impact liabil-
ity, nor do this Court’s precedents. And today’s decision
will have unfortunate consequences for local government,
private enterprise, and those living in poverty. Something
has gone badly awry when a city can’t even make slum-
lords kill rats without fear of a lawsuit. Because Congress
did not authorize any of this, I respectfully dissent.
I
Everyone agrees that the FHA punishes intentional
discrimination. Treating someone “less favorably than
others because of a protected trait” is “ ‘the most easily
understood type of discrimination.’ ” Ricci v. DeStefano,
557 U.S. 557, 577 (2009) (quoting Teamsters v. United
States, 431 U.S. 324, 335, n. 15 (1977); some internal
quotation marks omitted). Indeed, this classic form of
discrimination—called disparate treatment—is the only
one prohibited by the Constitution itself. See, e.g., Arling-
ton Heights v. Metropolitan Housing Development Corp.,
429 U.S. 252, 264–265 (1977). It is obvious that Congress
intended the FHA to cover disparate treatment.
The question presented here, however, is whether the
FHA also punishes “practices that are not intended to
discriminate but in fact have a disproportionately adverse
effect on minorities.” Ricci, supra, at 577. The answer is
equally clear. The FHA does not authorize disparate-
impact claims. No such liability was created when the law
was enacted in 1968. And nothing has happened since
then to change the law’s meaning.
——————
1 We
granted certiorari in Magner v. Gallagher, 565 U. S. ___ (2011).
Before oral argument, however, the parties settled. 565 U. S. ___
(2012). The same thing happened again in Township of Mount Holly v.
Mt. Holly Gardens Citizens in Action, Inc., 571 U. S. ___ (2013).
Cite as: 576 U. S. ____ (2015) 3
ALITO, J., dissenting
A
I begin with the text. Section 804(a) of the FHA makes
it unlawful “[t]o 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 dwell-
ing to any person because of race, color, religion, sex,
familial status, or national origin.” 42 U.S. C. §3604(a)
(emphasis added). Similarly, §805(a) prohibits any party
“whose business includes engaging in residential real
estate-related transactions” from “discriminat[ing] against
any person in making available such a transaction, or in
the terms or conditions of such a transaction, because of
race, color, religion, sex, handicap, familial status, or
national origin.” §3605(a) (emphasis added).
In both sections, the key phrase is “because of.” These
provisions list covered actions (“refus[ing] to sell or rent
. . . a dwelling,” “refus[ing] to negotiate for the sale or
rental of . . . a dwelling,” “discriminat[ing]” in a residential
real estate transaction, etc.) and protected characteristics
(“race,” “religion,” etc.). The link between the actions and
the protected characteristics is “because of.”
What “because of ” means is no mystery. Two Terms
ago, we held that “the ordinary meaning of ‘because of ’ is
‘by reason of ’ or ‘on account of.’ ” University of Tex.
Southwestern Medical Center v. Nassar, 570 U. S. ___, ___
(2013) (slip op., at 9) (quoting Gross v. FBL Financial
Services, Inc., 557 U.S. 167, 176 (2009); some internal
quotation marks omitted). A person acts “because of ”
something else, we explained, if that something else “ ‘was
the “reason” that the [person] decided to act.’ ” 570 U. S.,
at ___ (slip op., at 10).
Indeed, just weeks ago, the Court made this same point
in interpreting a provision of Title VII of the Civil Rights
Act of 1964, 42 U.S. C. §2000e–2(m), that makes it unlaw-
ful for an employer to take a variety of adverse employ-
ment actions (such as failing or refusing to hire a job
4 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
ALITO, J., dissenting
applicant or discharging an employee) “because of ” reli-
gion. See EEOC v. Abercrombie & Fitch Stores, Inc., 575
U. S. ___, ___ (2015) (slip op., at 4). The Court wrote:
“ ‘Because of ’ in §2000e–2(a)(1) links the forbidden consid-
eration to each of the verbs preceding it.” Ibid.
Nor is this understanding of “because of ” an arcane
feature of legal usage. When English speakers say that
someone did something “because of ” a factor, what they
mean is that the factor was a reason for what was done.
For example, on the day this case was argued, January 21,
2015, Westlaw and Lexis searches reveal that the phrase
“because of ” appeared in 14 Washington Post print arti-
cles. In every single one, the phrase linked an action and
a reason for the action.2
——————
2 Seeal-Mujahed & Naylor, Rebels Assault Key Sites in Yemen, pp.
A1, A12 (“A government official . . . spoke on the condition of anonymity
because of concern for his safety”); Berman, Jury Selection Starts in
Colo. Shooting Trial, p. A2 (“Jury selection is expected to last four to
five months because of a massive pool of potential jurors”); Davidson,
Some VA Whistleblowers Get Relief From Retaliation, p. A18 (“In April,
they moved to fire her because of an alleged ‘lack of collegiality’ ”);
Hicks, Post Office Proposes Hikes in Postage Rates, p. A19 (“The Postal
Service lost $5.5 billion in 2014, in large part because of continuing
declines in first-class mail volume”); Editorial, Last Responders, p. A20
(“Metro’s initial emergency call mentioned only smoke but no stuck
train [in part] . . . because of the firefighters’ uncertainty that power
had been shut off to the third rail”); Letter to the Editor, Metro’s Safety
Flaws, p. A20 (“[A] circuit breaker automatically opened because of
electrical arcing”); Bernstein, He Formed Swingle Singers and Made
Bach Swing, p. B6 (“The group retained freshness because of the
‘stunning musicianship of these singers’ ”); Schudel, TV Producer,
Director Invented Instant Replay, p. B7 (“[The 1963 Army-Navy foot-
ball game was] [d]elayed one week because of the assassination of
President John F. Kennedy”); Contrera & Thompson, 50 Years On,
Cheering a Civil Rights Matriarch, pp. C1, C5 (“[T]he first 1965 protest
march from Selma to Montgomery . . . became known as ‘Bloody Sun-
day’ because of state troopers’ violent assault on the marchers”); Press-
ley, ‘Life Sucks’: Aaron Posner’s Latest Raging Riff on Chekhov, pp. C1,
C9 (“ ‘The Seagull’ gave Posner ample license to experiment because of
Cite as: 576 U. S. ____ (2015) 5
ALITO, J., dissenting
Without torturing the English language, the meaning of
these provisions of the FHA cannot be denied. They make
it unlawful to engage in any of the covered actions “be-
cause of ”—meaning “by reason of ” or “on account of,”
Nassar, supra, at ___ (slip op., at 9)—race, religion, etc.
Put another way, “the terms [after] the ‘because of ’ clauses
in the FHA supply the prohibited motivations for the
intentional acts . . . that the Act makes unlawful.” Ameri-
can Ins. Assn. v. Department of Housing and Urban Devel-
opment, ___ F. Supp. 3d ___, ___, n. 20, 2014 WL 5802283,
at *8, n. 20 (DC 2014). Congress accordingly outlawed the
covered actions only when they are motivated by race or
one of the other protected characteristics.
It follows that the FHA does not authorize disparate-
impact suits. Under a statute like the FHA that prohibits
actions taken “because of ” protected characteristics, intent
makes all the difference. Disparate impact, however, does
not turn on “ ‘subjective intent.’ ” Raytheon Co. v. Hernan-
dez, 540 U.S. 44, 53 (2003). Instead, “ ‘treat[ing] [a] par-
ticular person less favorably than others because of ’ a
protected trait” is “ ‘disparate treatment,’ ” not disparate
impact. Ricci, 557 U.S., at 577 (emphasis added). See
also, e.g., Personnel Administrator of Mass. v. Feeney, 442
U.S. 256, 279 (1979) (explaining the difference between
“because of ” and “in spite of ”); Hernandez v. New York,
——————
its writer and actress characters and its pronouncements on art”); A
Rumpus on ‘The Bachelor,’ p. C2 (“Anderson has stood out from the
pack . . . mostly because of that post-production censoring of her nether
regions” (ellipsis in original)); Steinberg, KD2DC, Keeping Hype Alive,
pp. D1, D4 (explaining that a commenter “asked that his name not be
used because of his real job”); Boren, Former FSU Boss Bowden Wants
12 Wins to Be Restored, p. D2 (“[T]he NCAA restored the 111 victories
that were taken from the late Joe Paterno because of the Jerry
Sandusky child sex-abuse scandal”); Oklahoma City Finally Moves Past
.500 Mark, p. D4 (“Trail Blazers all-star LaMarcus Aldridge won’t play
in Wednesday night’s game against the Phoenix Suns because of a left
thumb injury”).
6 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
ALITO, J., dissenting
500 U.S. 352, 359–360 (1991) (plurality opinion) (same);
Alexander v. Sandoval, 532 U.S. 275, 278, 280 (2001)
(holding that it is “beyond dispute” that banning discrimi-
nation “ ‘on the ground of race’ ” “prohibits only intentional
discrimination”).
This is precisely how Congress used the phrase “because
of ” elsewhere in the FHA. The FHA makes it a crime to
willfully “interfere with . . . any person because of his race”
(or other protected characteristic) who is engaging in a
variety of real-estate-related activities, such as “selling,
purchasing, [or] renting” a dwelling. 42 U.S. C. §3631(a).
No one thinks a defendant could be convicted of this crime
without proof that he acted “because of,” i.e., on account of
or by reason of, one of the protected characteristics. But
the critical language in this section—“because of ”—is
identical to the critical language in the sections at issue in
this case. “One ordinarily assumes” Congress means the
same words in the same statute to mean the same thing.
Utility Air Regulatory Group v. EPA, 573 U. S. ___, ___
(2014) (slip op., at 15). There is no reason to doubt that
ordinary assumption here.
Like the FHA, many other federal statutes use the
phrase “because of ” to signify what that phrase means in
ordinary speech. For instance, the federal hate crime
statute, 18 U.S. C. §249, authorizes enhanced sentences
for defendants convicted of committing certain crimes
“because of ” race, color, religion, or other listed character-
istics. Hate crimes require bad intent—indeed, that is the
whole point of these laws. See, e.g., Wisconsin v. Mitchell,
508 U.S. 476, 484–485 (1993) (“[T]he same criminal con-
duct may be more heavily punished if the victim is selected
because of his race or other protected status”). All of this
confirms that “because of ” in the FHA should be read to
mean what it says.
Cite as: 576 U. S. ____ (2015) 7
ALITO, J., dissenting
B
In an effort to find at least a sliver of support for disparate-
impact liability in the text of the FHA, the principal
respondent, the Solicitor General, and the Court pounce
on the phrase “make unavailable.” Under §804(a), it is
unlawful “[t]o . . . make unavailable . . . a dwelling to any
person because of race, color, religion, sex, familial status,
or national origin.” 42 U.S. C. §3604(a). See also
§3605(a) (barring “discriminat[ion] against any person in
making available such a [housing] transaction . . . because
of race, color, religion, sex, handicap, familial status, or
national origin”). The Solicitor General argues that “[t]he
plain meaning of the phrase ‘make unavailable’ includes
actions that have the result of making housing or transac-
tions unavailable, regardless of whether the actions were
intended to have that result.” Brief for United States as
Amicus Curiae 18 (emphasis added). This argument is not
consistent with ordinary English usage.
It is doubtful that the Solicitor General’s argument
accurately captures the “plain meaning” of the phrase
“make unavailable” even when that phrase is not linked to
the phrase “because of.” “[M]ake unavailable” must be
viewed together with the rest of the actions covered by
§804(a), which applies when a party “refuse[s] to sell or
rent” a dwelling, “refuse[s] to negotiate for the sale or
rental” of a dwelling, “den[ies] a dwelling to any person,”
“or otherwise make[s] unavailable” a dwelling. §3604(a)
(emphasis added). When a statute contains a list like this,
we “avoid ascribing to one word a meaning so broad that it
is inconsistent with its accompanying words, thus giving
‘unintended breadth to the Acts of Congress.’ ” Gustafson
v. Alloyd Co., 513 U.S. 561, 575 (1995) (quoting Jarecki v.
G. D. Searle & Co., 367 U.S. 303, 307 (1961)). See also,
e.g., Yates v. United States, 574 U. S. ___, ___ (2015) (plu-
rality opinion) (slip op., at 14); id., at ___ (ALITO, J., con-
curring in judgment) (slip op., at 1). Here, the phrases
8 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
ALITO, J., dissenting
that precede “make unavailable” unmistakably describe
intentional deprivations of equal treatment, not merely
actions that happen to have a disparate effect. See Ameri-
can Ins. Assn., ___ F. Supp. 3d, at ___, 2014 WL 5802283,
at *8 (citing Webster’s Third New International Dictionary
603, 848, 1363, 1910 (1966)). Section 804(a), moreover,
prefaces “make unavailable” with “or otherwise,” thus
creating a catchall. Catchalls must be read “restrictively”
to be “like” the listed terms. Washington State Dept. of
Social and Health Servs. v. Guardianship Estate of Kef-
feler, 537 U.S. 371, 384–385 (2003). The result of these
ordinary rules of interpretation is that even without “be-
cause of,” the phrase “make unavailable” likely would
require intentionality.
The FHA’s inclusion of “because of,” however, removes
any doubt. Sections 804(a) and 805(a) apply only when a
party makes a dwelling or transaction unavailable “be-
cause of ” race or another protected characteristic. In
ordinary English usage, when a person makes something
unavailable “because of ” some factor, that factor must be a
reason for the act.
Here is an example. Suppose that Congress increases
the minimum wage. Some economists believe that such
legislation reduces the number of jobs available for “un-
skilled workers,” Fuller & Geide-Stevenson, Consensus
Among Economists: Revisited, 34 J. Econ. Educ. 369, 378
(2003), and minorities tend to be disproportionately repre-
sented in this group, see, e.g., Dept. of Commerce, Bureau
of Census, Detailed Years of School Completed by People
25 Years and Over by Sex, Age Groups, Race and Hispanic
Origin: 2014, online at http://www.census.gov/hhes/
socdemo/education/data/cps/2014/tables.html (all Inter-
net materials as visited June 23, 2015, and available in
Clerk of Court’s case file). Assuming for the sake of argu-
ment that these economists are correct, would it be fair to
say that Congress made jobs unavailable to African-
Cite as: 576 U. S. ____ (2015) 9
ALITO, J., dissenting
Americans or Latinos “because of ” their race or ethnicity?
A second example. Of the 32 college players selected by
National Football League (NFL) teams in the first round
of the 2015 draft, it appears that the overwhelming major-
ity were members of racial minorities. See Draft 2015,
http://www.nfl.com/draft/2015. See also Miller, Powerful
Sports Agents Representing Color, Los Angeles Sentinel,
Feb. 6, 2014, p. B3 (noting “there are 96 players (76 of
whom are African-American) chosen in the first rounds of
the 2009, 2010, and 2011 NFL drafts”). Teams presuma-
bly chose the players they think are most likely to help
them win games. Would anyone say the NFL teams made
draft slots unavailable to white players “because of ” their
race?
A third example. During the present Court Term, of the
21 attorneys from the Solicitor General’s Office who ar-
gued cases in this Court, it appears that all but 5 (76%)
were under the age of 45. Would the Solicitor General say
he made argument opportunities unavailable to older
attorneys “because of ” their age?
The text of the FHA simply cannot be twisted to author-
ize disparate-impact claims. It is hard to imagine how
Congress could have more clearly stated that the FHA
prohibits only intentional discrimination than by forbid-
ding acts done “because of race, color, religion, sex, familial
status, or national origin.”
II
The circumstances in which the FHA was enacted only
confirm what the text says. In 1968, “the predominant
focus of antidiscrimination law was on intentional discrim-
ination.” Smith v. City of Jackson, 544 U.S. 228, 258
(2005) (O’Connor, J., concurring in judgment). The very
“concept of disparate impact liability, by contrast, was
quite novel.” Ibid. (collecting citations). See also Tr. of
Oral Arg. 15 (“JUSTICE GINSBURG: . . . If we’re going to
10 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
ALITO, J., dissenting
be realistic about this, . . . in 1968, when the Fair Housing
Act passed, nobody knew anything about disparate im-
pact”). It is anachronistic to think that Congress author-
ized disparate-impact claims in 1968 but packaged that
striking innovation so imperceptibly in the FHA’s text.
Eradicating intentional discrimination was and is the
FHA’s strategy for providing fair housing opportunities for
all. The Court recalls the country’s shameful history of
segregation and de jure housing discrimination and then
jumps to the conclusion that the FHA authorized disparate-
impact claims as a method of combatting that evil.
Ante, at 5–7. But the fact that the 1968 Congress sought
to end housing discrimination says nothing about the
means it devised to achieve that end. The FHA’s text
plainly identifies the weapon Congress chose—outlawing
disparate treatment “because of race” or another protected
characteristic. 42 U.S. C. §§3604(a), 3605(a). Accordingly,
in any FHA claim, “[p]roof of discriminatory motive is
critical.” Teamsters, 431 U.S., at 335, n. 15.
III
Congress has done nothing since 1968 to change the
meaning of the FHA prohibitions at issue in this case. In
1968, those prohibitions forbade certain housing practices
if they were done “because of ” protected characteristics.
Today, they still forbid certain housing practices if done
“because of ” protected characteristics. The meaning of the
unaltered language adopted in 1968 has not evolved.
Rather than confronting the plain text of §§804(a) and
805(a), the Solicitor General and the Court place heavy
reliance on certain amendments enacted in 1988, but
those amendments did not modify the meaning of the
provisions now before us. In the Fair Housing Amend-
ments Act of 1988, 102 Stat. 1619, Congress expanded the
list of protected characteristics. See 42 U.S. C. §§3604(a),
(f )(1). Congress also gave the Department of Housing and
Cite as: 576 U. S. ____ (2015) 11
ALITO, J., dissenting
Urban Development (HUD) rulemaking authority and the
power to adjudicate certain housing claims. See §§3612,
3614a. And, what is most relevant for present purposes,
Congress added three safe-harbor provisions, specifying
that “[n]othing in [the FHA]” prohibits (a) certain actions
taken by real property appraisers, (b) certain occupancy
requirements, and (c) the treatment of persons convicted
of manufacturing or distributing illegal drugs.3
According to the Solicitor General and the Court, these
amendments show that the FHA authorizes disparate-
impact claims. Indeed, the Court says that they are “of
crucial importance.” Ante, at 13. This “crucial” argument,
however, cannot stand.
A
The Solicitor General and the Court contend that the
1988 Congress implicitly authorized disparate-impact
liability by adopting the amendments just noted while
leaving the operative provisions of the FHA untouched.
Congress knew at that time, they maintain, that the
Courts of Appeals had held that the FHA sanctions
disparate-impact claims, but Congress failed to enact bills
that would have rejected that theory of liability. Based on
this, they submit that Congress silently ratified those
——————
3 These new provisions state:
“Nothing in this subchapter prohibits a person engaged in the busi-
ness of furnishing appraisals of real property to take into consideration
factors other than race, color, religion, national origin, sex, handicap, or
familial status.” §3605(c).
“Nothing in this subchapter limits the applicability of any reasonable
local, State, or Federal restrictions regarding the maximum number of
occupants permitted to occupy a dwelling. Nor does any provision in
this subchapter regarding familial status apply with respect to housing
for older persons.” §3607(b)(1).
“Nothing in this subchapter prohibits conduct against a person be-
cause such person has been convicted by any court of competent juris-
diction of the illegal manufacture or distribution of a controlled sub-
stance as defined in section 802 of title 21.” §3607(b)(4).
12 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
ALITO, J., dissenting
decisions. See ante, at 13–14; Brief for United States as
Amicus Curiae 23–24. This argument is deeply flawed.
Not the greatest of its defects is its assessment of what
Congress must have known about the judiciary’s interpre-
tation of the FHA. The Court writes that by 1988, “all
nine Courts of Appeals to have addressed the question had
concluded the Fair Housing Act encompassed disparate-
impact claims.” Ante, at 13 (emphasis added). See also
Brief for United States as Amicus Curiae 12. But this
Court had not addressed that question. While we always
give respectful consideration to interpretations of statutes
that garner wide acceptance in other courts, this Court
has “no warrant to ignore clear statutory language on the
ground that other courts have done so,” even if they have
“ ‘consistently’ ” done so for “ ‘30 years.’ ” Milner v. Depart-
ment of Navy, 562 U.S. 562, 575–576 (2011). See also,
e.g., CSX Transp., Inc. v. McBride, 564 U. S. ___, ___
(2011) (ROBERTS, C. J., dissenting) (slip op., at 11) (ex-
plaining that this Court does not interpret statutes by
asking for “a show of hands” (citing Buckhannon Board &
Care Home, Inc. v. West Virginia Dept. of Health and
Human Resources, 532 U.S. 598 (2001); McNally v. United
States, 483 U.S. 350 (1987))).
In any event, there is no need to ponder whether it
would have been reasonable for the 1988 Congress, with-
out considering the clear meaning of §§804(a) and 805(a),
to assume that the decisions of the lower courts effectively
settled the matter. While the Court highlights the deci-
sions of the Courts of Appeals, it fails to mention some-
thing that is of at least equal importance: The official view
of the United States in 1988.
Shortly before the 1988 amendments were adopted, the
United States formally argued in this Court that the FHA
prohibits only intentional discrimination. See Brief for
United States as Amicus Curiae in Huntington v. Hun-
tington Branch, NAACP, O. T. 1988, No. 87–1961, p. 15
Cite as: 576 U. S. ____ (2015) 13
ALITO, J., dissenting
(“An action taken because of some factor other than race,
i.e., financial means, even if it causes a discriminatory
effect, is not an example of the intentional discrimination
outlawed by the statute”); id., at 14 (“The words ‘because
of ’ plainly connote a causal connection between the housing-
related action and the person’s race or color”).4 This
was the same position that the United States had taken in
lower courts for years. See, e.g., United States v. Bir-
mingham, 538 F. Supp. 819, 827, n. 9 (ED Mich. 1982)
(noting positional change), aff ’d, 727 F.2d 560, 565–566
(CA6 1984) (adopting United States’ “concession” that
there must be a “ ‘discriminatory motive’ ”). It is implausi-
ble that the 1988 Congress was aware of certain lower
court decisions but oblivious to the United States’ consid-
ered and public view that those decisions were wrong.
This fact is fatal to any notion that Congress implicitly
ratified disparate impact in 1988. The canon of interpre-
tation on which the Court and the Solicitor General pur-
port to rely—the so-called “prior-construction canon”—
does not apply where lawyers cannot “justifiably regard
the point as settled” or when “other sound rules of inter-
pretation” are implicated. A. Scalia & B. Garner, Reading
Law: The Interpretation of Legal Texts 324, 325 (2012).
That was the case here. Especially after the United States
began repudiating disparate impact, no one could have
reasonably thought that the question was settled.
Nor can such a faulty argument be salvaged by pointing
to Congress’ failure in 1988 to enact language that would
have made it clear that the FHA does not authorize
disparate-impact suits based on zoning decisions. See ante,
——————
4 In response to the United States’ argument, we reserved decision on
the question. See Huntington v. Huntington Branch, NAACP, 488 U.S.
15, 18 (1988) (per curiam) (“Since appellants conceded the applicability
of the disparate-impact test . . . we do not reach the question whether
that test is the appropriate one”).
14 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
ALITO, J., dissenting
at 13–14.5 To change the meaning of language in an
already enacted law, Congress must pass a new law
amending that language. See, e.g., West Virginia Univ.
Hospitals, Inc. v. Casey, 499 U.S. 83, 100, 101, and n. 7
(1991). Intent that finds no expression in a statute is
irrelevant. See, e.g., New York Telephone Co. v. New York
State Dept. of Labor, 440 U.S. 519, 544–545 (1979);
Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533,
538–540 (1983). Hence, “we walk on quicksand when we
try to find in the absence of corrective legislation a control-
ling legal principle.” Helvering v. Hallock, 309 U.S. 106,
121 (1940).
Unsurprisingly, we have rejected identical arguments
about implicit ratification in other cases. For example, in
Central Bank of Denver, N. A. v. First Interstate Bank of
Denver, N. A., 511 U.S. 164 (1994), a party argued that
§10(b) of the Securities Exchange Act of 1934 imposes
liability on aiders and abettors because “Congress ha[d]
amended the securities laws on various occasions since
1966, when courts first began to interpret §10(b) to cover
aiding and abetting, but ha[d] done so without providing
that aiding and abetting liability is not available under
§10(b).” Id., at 186. “From that,” a party asked the Court
——————
5 In any event, the Court overstates the importance of that failed
amendment. The amendment’s sponsor disavowed that it had anything
to do with the broader question whether the FHA authorizes disparate-
impact suits. Rather, it “left to caselaw and eventual Supreme Court
resolution whether a discriminatory intent or discriminatory effects
standard is appropriate . . . [in] all situations but zoning.” H. R. Rep.
No. 100–711, p. 89 (1988). Some in Congress, moreover, supported the
amendment and the House bill. Compare ibid. with 134 Cong. Rec.
16511 (1988). It is hard to believe they thought the bill—which was
silent on disparate impact—nonetheless decided the broader question.
It is for such reasons that failed amendments tell us “little” about what
a statute means. Central Bank of Denver, N. A. v. First Interstate Bank
of Denver, N. A., 511 U.S. 164, 187 (1994). Footnotes in House Reports
and law professor testimony tell us even less. Ante, at 13–14.
Cite as: 576 U. S. ____ (2015) 15
ALITO, J., dissenting
to “infer that these Congresses, by silence, ha[d] acqui-
esced in the judicial interpretation of §10(b).” Ibid. The
Court dismissed this argument in words that apply almost
verbatim here:
“ ‘It does not follow that Congress’ failure to overturn
a statutory precedent is reason for this Court to ad-
here to it. It is “impossible to assert with any degree
of assurance that congressional failure to act repre-
sents” affirmative congressional approval of the
courts’ statutory interpretation. Congress may legis-
late, moreover, only through the passage of a bill
which is approved by both Houses and signed by the
President. See U. S. Const., Art. I, §7, cl. 2. Congres-
sional inaction cannot amend a duly enacted statute.’
Patterson v. McLean Credit Union, 491 U.S. 164, 175,
n. 1 (1989) (quoting Johnson v. Transportation Agen-
cy, Santa Clara Cty., 480 U.S. 616, 672 (1987)
(SCALIA, J., dissenting)).” Ibid. (alterations omitted).
We made the same point again in Sandoval, 532 U.S.
275. There it was argued that amendments to Title VI of
the Civil Rights Act of 1964 implicitly ratified lower court
decisions upholding a private right of action. We rejected
that argument out of hand. See id., at 292–293.
Without explanation, the Court ignores these cases.
B
The Court contends that the 1988 amendments provide
“convincing confirmation of Congress’ understanding that
disparate-impact liability exists under the FHA” because
the three safe-harbor provisions included in those
amendments “would be superfluous if Congress had as-
sumed that disparate-impact liability did not exist under
the FHA.” Ante, at 14, 15. As just explained, however,
what matters is what Congress did, not what it might
have “assumed.” And although the Court characterizes
16 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
ALITO, J., dissenting
these provisions as “exemptions,” that characterization is
inaccurate. They make no reference to §804(a) or §805(a)
or any other provision of the FHA; nor do they state that
they apply to conduct that would otherwise be prohibited.
Instead, they simply make clear that certain conduct is
not forbidden by the Act. E.g., 42 U.S. C. §3607(b)(4)
(“Nothing in this subchapter prohibits . . .”). The Court
should read these amendments to mean what they say.
In 1988, policymakers were not of one mind about
disparate-impact housing suits. Some favored the theory
and presumably would have been happy to have it en-
shrined in the FHA. See ante, at 13–14; 134 Cong. Rec.
23711 (1988) (statement of Sen. Kennedy). Others worried
about disparate-impact liability and recognized that this
Court had not decided whether disparate-impact claims
were authorized under the 1968 Act. See H. R. Rep. No.
100–711, pp. 89–93 (1988). Still others disapproved of
disparate-impact liability and believed that the 1968 Act
did not authorize it. That was the view of President
Reagan when he signed the amendments. See Remarks
on Signing the Fair Housing Amendments Act of 1988, 24
Weekly Comp. of Pres. Doc. 1140, 1141 (1988) (explaining
that the amendments did “not represent any congressional
or executive branch endorsement of the notion, expressed
in some judicial opinions, that [FHA] violations may be
established by a showing of disparate impact” because the
FHA “speaks only to intentional discrimination”).6
——————
6 At the same hearings to which the Court refers, ante, at 13, Senator
Hatch stated that if the “intent test versus the effects test” were to
“becom[e] an issue,” a “fair housing law” might not be enacted at all,
and he noted that failed legislation in the past had gotten “bogged
down” because of that “battle.” Fair Housing Amendments Act of 1987:
Hearings on S. 558 before the Subcommittee on the Constitution of the
Senate Committee on the Judiciary, 100th Cong., 1st Sess., 5 (1987).
He also noted that the bill under consideration did “not really go one
way or the other” on disparate impact since the sponsors were content
to “rely” on the lower court opinions. Ibid. And he emphasized that
Cite as: 576 U. S. ____ (2015) 17
ALITO, J., dissenting
The 1988 safe-harbor provisions have all the hallmarks
of a compromise among these factions. These provisions
neither authorize nor bar disparate-impact claims, but
they do provide additional protection for persons and
entities engaging in certain practices that Congress espe-
cially wished to shield. We “must respect and give effect
to these sorts of compromises.” Ragsdale v. Wolverine
World Wide, Inc., 535 U.S. 81, 93–94 (2002).
It is not hard to see why such a compromise was attrac-
tive. For Members of Congress who supported disparate
impact, the safe harbors left the favorable lower court
decisions in place. And for those who hoped that this
Court would ultimately agree with the position being
urged by the United States, those provisions were not
surplusage. In the Circuits in which disparate-impact
FHA liability had been accepted, the safe-harbor provi-
sions furnished a measure of interim protection until the
question was resolved by this Court. They also provided
partial protection in the event that this Court ultimately
rejected the United States’ argument. Neither the Court,
the principal respondent, nor the Solicitor General has
cited any case in which the canon against surplusage has
been applied in circumstances like these.7
——————
“the issue of intent versus effect—I am afraid that is going to have to be
decided by the Supreme Court.” Ibid. See also id., at 10 (“It is not
always a violation to refuse to sell, but only to refuse to sell ‘because of ’
another’s race. This language made clear that the 90th Congress
meant only to outlaw acts taken with the intent to discriminate . . . . To
use any standard other than discriminatory intent . . . would jeopardize
many kinds of beneficial zoning and local ordinances” (statement of
Sen. Hatch)).
7 In any event, even in disparate-treatment suits, the safe harbors are
not superfluous. For instance, they affect “the burden-shifting frame-
work” in disparate-treatment cases. American Ins. Assn. v. Department
of Housing and Urban Development, ___ Supp. 3d ___, 2014 WL
5802283, *10 (DC 2014). Under the second step of the burden-shifting
scheme from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
18 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
ALITO, J., dissenting
On the contrary, we have previously refused to interpret
enactments like the 1988 safe-harbor provisions in such a
way. Our decision in O’Gilvie v. United States, 519 U.S.
79 (1996)—also ignored by the Court today—is instructive.
In that case, the question was whether a provision of the
Internal Revenue Code excluding a recovery for personal
injury from gross income applied to punitive damages.
Well after the critical provision was enacted, Congress
adopted an amendment providing that punitive damages
for nonphysical injuries were not excluded. Pointing to
this amendment, a taxpayer argued: “Why . . . would
Congress have enacted this amendment removing punitive
damages (in nonphysical injury cases) unless Congress
believed that, in the amendment’s absence, punitive dam-
ages did fall within the provision’s coverage?” Id., at 89.
This argument, of course, is precisely the same as the
argument made in this case. To paraphrase O’Gilvie, the
Court today asks: Why would Congress have enacted the
1988 amendments, providing safe harbors from three
types of disparate-impact claims, unless Congress believed
——————
which some courts have applied in disparate-treatment housing cases,
see, e.g., 2922 Sherman Avenue Tenants’ Assn. v. District of Columbia,
444 F.3d 673, 682 (CADC 2006) (collecting cases), a defendant must
proffer a legitimate reason for the challenged conduct, and the safe-
harbor provisions set out reasons that are necessarily legitimate.
Moreover, while a factfinder in a disparate-treatment case can some-
times infer bad intent based on facially neutral conduct, these safe
harbors protect against such inferences. Without more, conduct within
a safe harbor is insufficient to support such an inference as a matter of
law. And finally, even if there is additional evidence, these safe har-
bors make it harder to show pretext. See Fair Housing Advocates
Assn., Inc. v. Richmond Heights, 209 F.3d 626, 636–637, and n. 7 (CA6
2000).
Even if they were superfluous, moreover, our “preference for avoiding
surplusage constructions is not absolute.” Lamie v. United States
Trustee, 540 U.S. 526, 536 (2004). We “presume that a legislature says
in a statute what it means,” notwithstanding “[r]edundanc[y].” Con-
necticut Nat. Bank v. Germain, 503 U.S. 249, 253–254 (1992).
Cite as: 576 U. S. ____ (2015) 19
ALITO, J., dissenting
that, in the amendments’ absence, disparate-impact
claims did fall within the FHA’s coverage?
The Court rejected the argument in O’Gilvie. “The short
answer,” the Court wrote, is that Congress might have
simply wanted to “clarify the matter in respect to non-
physical injuries” while otherwise “leav[ing] the law where
it found it.” Ibid. Although other aspects of O’Gilvie
triggered a dissent, see id., at 94–101 (opinion of SCALIA,
J.), no one quarreled with this self-evident piece of the
Court’s analysis. Nor was the O’Gilvie Court troubled that
Congress’ amendment regarding nonphysical injuries
turned out to have been unnecessary because punitive
damages for any injuries were not excluded all along.
The Court saw the flaw in the argument in O’Gilvie, and
the same argument is no better here. It is true that
O’Gilvie involved a dry question of tax law while this case
involves a controversial civil rights issue. But how we
read statutes should not turn on such distinctions.
In sum, as the principal respondent’s attorney candidly
admitted, the 1988 amendments did not create disparate-
impact liability. See Tr. of Oral Arg. 36 (“[D]id the things
that [Congress] actually did in 1988 expand the coverage
of the Act? MR. DANIEL: No, Justice”).
C
The principal respondent and the Solicitor General—but
not the Court—have one final argument regarding the text
of the FHA. They maintain that even if the FHA does not
unequivocally authorize disparate-impact suits, it is at
least ambiguous enough to permit HUD to adopt that
interpretation. Even if the FHA were ambiguous, how-
ever, we do not defer “when there is reason to suspect that
the agency’s interpretation ‘does not reflect the agency’s
fair and considered judgment on the matter in question.’ ”
Christopher v. SmithKline Beecham Corp., 567 U. S. ___,
___ (2012) (slip op., at 10).
20 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
ALITO, J., dissenting
Here, 43 years after the FHA was enacted and nine days
after the Court granted certiorari in Magner (the “rodent
infestation” case), HUD proposed “to prohibit housing
practices with a discriminatory effect, even where there
has been no intent to discriminate.” Implementation of
the Fair Housing Act’s Discriminatory Effects Standard,
76 Fed. Reg. 70921 (2011). After Magner settled, the
Court called for the views of the Solicitor General in
Township of Mount Holly v. Mt. Holly Gardens Citizens in
Action, Inc., 568 U. S. ___ (2012), another case raising the
same question. Before the Solicitor General filed his brief,
however, HUD adopted disparate-impact regulations. See
Implementation of the Fair Housing Act’s Discriminatory
Effects Standard, 78 Fed. Reg. 11460 (2013). The Solicitor
General then urged HUD’s rule as a reason to deny certio-
rari. We granted certiorari anyway, 570 U. S. ___ (2013),
and shortly thereafter Mount Holly also unexpectedly
settled. Given this unusual pattern, there is an argument
that deference may be unwarranted. Cf. Young v. United
Parcel Service, Inc., 575 U. S. ___, ___ (2015) (slip op., at
16–17) (refusing to defer where “[t]he EEOC promulgated
its 2014 guidelines only recently, after this Court had
granted certiorari” (discussing Skidmore v. Swift & Co.,
323 U.S. 134, 140 (1944))).8
There is no need to dwell on these circumstances, how-
ever, because deference is inapt for a more familiar rea-
son: The FHA is not ambiguous. The FHA prohibits only
disparate treatment, not disparate impact. It is a bedrock
rule that an agency can never “rewrite clear statutory
terms to suit its own sense of how the statute should
——————
8 At argument, the Government assured the Court that HUD did not
promulgate its proposed rule because of Magner. See Tr. of Oral Arg.
46 (“[I]t overestimates the efficiency of the government to think that
you could get, you know, a supposed rule-making on an issue like this
out within seven days”). The Government also argued that HUD had
recognized disparate-impact liability in adjudications for years. Ibid.
Cite as: 576 U. S. ____ (2015) 21
ALITO, J., dissenting
operate.” Utility Air Regulatory Group, 573 U. S., at ___
(slip op., at 23). This rule makes even more sense where
the agency’s view would open up a deeply disruptive ave-
nue of liability that Congress never contemplated.
IV
Not only does disparate-impact liability run headlong
into the text of the FHA, it also is irreconcilable with our
precedents. The Court’s decision today reads far too much
into Griggs v. Duke Power Co., 401 U.S. 424 (1971), and
far too little into Smith v. City of Jackson, 544 U.S. 228
(2005). In Smith, the Court explained that the statutory
justification for the decision in Griggs depends on lan-
guage that has no parallel in the FHA. And when the
Smith Court addressed a provision that does have such a
parallel in the FHA, the Court concluded—unanimously—
that it does not authorize disparate-impact liability. The
same result should apply here.
A
Rather than focusing on the text of the FHA, much of
the Court’s reasoning today turns on Griggs. In Griggs,
the Court held that black employees who sued their em-
ployer under §703(a)(2) of Title VII of the Civil Rights Act
of 1964, 42 U.S. C. §2000e–2(a)(2), could recover without
proving that the employer’s conduct—requiring a high
school diploma or a qualifying grade on a standardized
test as a condition for certain jobs—was motivated by a
discriminatory intent. Instead, the Court held that, un-
less it was proved that the requirements were “job re-
lated,” the plaintiffs could recover by showing that the re-
quirements “operated to render ineligible a markedly
disproportionate number of Negroes.” 401 U.S., at 429.
Griggs was a case in which an intent to discriminate
might well have been inferred. The company had “openly
discriminated on the basis of race” prior to the date on
22 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
ALITO, J., dissenting
which the 1964 Civil Rights Act took effect. Id., at 427.
Once that date arrived, the company imposed new educa-
tional requirements for those wishing to transfer into jobs
that were then being performed by white workers who did
not meet those requirements. Id., at 427–428. These new
hurdles disproportionately burdened African-Americans,
who had “long received inferior education in segregated
schools.” Id., at 430. Despite all this, the lower courts
found that the company lacked discriminatory intent. See
id., at 428. By convention, we do not overturn a finding of
fact accepted by two lower courts, see, e.g., Rogers v.
Lodge, 458 U.S. 613, 623 (1982); Blau v. Lehman, 368
U.S. 403, 408–409 (1962); Graver Tank & Mfg. Co. v.
Linde Air Products Co., 336 U.S. 271, 275 (1949), so the
Court was confronted with the question whether Title VII
always demands intentional discrimination.
Although Griggs involved a question of statutory inter-
pretation, the body of the Court’s opinion—quite remarka-
bly—does not even cite the provision of Title VII on which
the plaintiffs’ claims were based. The only reference to
§703(a)(2) of the 1964 Civil Rights Act appears in a single
footnote that reproduces the statutory text but makes no
effort to explain how it encompasses a disparate-impact
claim. See 401 U.S., at 426, n. 1. Instead, the Court
based its decision on the “objective” of Title VII, which the
Court described as “achiev[ing] equality of employment
opportunities and remov[ing] barriers that have operated
in the past to favor an identifiable group of white employ-
ees over other employees.” Id., at 429–430.
That text-free reasoning caused confusion, see, e.g.,
Smith, supra, at 261–262 (O’Connor, J., concurring in
judgment), and undoubtedly led to the pattern of Court of
Appeals decisions in FHA cases upon which the majority
now relies. Those lower courts, like the Griggs Court,
often made little effort to ground their decisions in the
statutory text. For example, in one of the earliest cases in
Cite as: 576 U. S. ____ (2015) 23
ALITO, J., dissenting
this line, United States v. Black Jack, 508 F.2d 1179 (CA8
1974), the heart of the court’s analysis was this: “Just as
Congress requires ‘the removal of artificial, arbitrary, and
unnecessary barriers to employment when the barriers
operate invidiously to discriminate on the basis of racial or
other impermissible classification,’ such barriers must also
give way in the field of housing.” Id., at 1184 (quoting
Griggs, supra, at 430–431; citation omitted).
Unlike these lower courts, however, this Court has
never interpreted Griggs as imposing a rule that applies to
all antidiscrimination statutes. See, e.g., Guardians Assn.
v. Civil Serv. Comm’n of New York City, 463 U.S. 582,
607, n. 27 (1983) (holding that Title VI, 42 U.S. C. §2000d
et seq., does “not allow compensatory relief in the absence
of proof of discriminatory intent”); Sandoval, 532 U.S., at
280 (similar). Indeed, we have never held that Griggs
even establishes a rule for all employment discrimination
statutes. In Teamsters, the Court rejected “the Griggs
rationale” in evaluating a company’s seniority rules. 431
U.S., at 349–350. And because Griggs was focused on a
particular problem, the Court had held that its rule does
not apply where, as here, the context is different. In Los
Angeles Dept. of Water and Power v. Manhart, 435 U.S.
702 (1978), for instance, the Court refused to apply Griggs
to pensions under the Equal Pay Act of 1963, 29 U.S. C.
§206(d) or Title VII, even if a plan has a “disproportion-
ately heavy impact on male employees.” 435 U.S. at 711,
n. 20. We explained that “[e]ven a completely neutral
practice will inevitably have some disproportionate impact
on one group or another. Griggs does not imply, and this
Court has never held, that discrimination must always be
inferred from such consequences.” Ibid.
B
Although the opinion in Griggs did not grapple with the
text of the provision at issue, the Court was finally re-
24 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
ALITO, J., dissenting
quired to face that task in Smith, 544 U.S. 228, which
addressed whether the Age Discrimination in Employment
Act of 1967 (ADEA), 29 U.S. C. §621 et seq., authorizes
disparate-impact suits. The Court considered two provi-
sions of the ADEA, §§4(a)(1) and 4(a)(2), 29 U.S. C.
§§623(a)(1) and (a)(2).
The Court unanimously agreed that the first of these
provisions, §4(a)(1), does not authorize disparate-impact
claims. See 544 U.S., at 236, n. 6 (plurality opinion); id.,
at 243 (SCALIA, J., concurring in part and concurring in
judgment) (agreeing with the plurality’s reasoning); id., at
249 (O’Connor, J., concurring in judgment) (reasoning that
this provision “obvious[ly]” does not allow disparate-
impact claims).
By contrast, a majority of the Justices found that the
terms of §4(a)(2) either clearly authorize disparate-impact
claims (the position of the plurality) or at least are ambig-
uous enough to provide a basis for deferring to such an
interpretation by the Equal Employment Opportunity
Commission (the position of JUSTICE SCALIA). See 544
U.S., at 233–240 (plurality opinion); id., at 243–247 (opin-
ion of SCALIA, J.).
In reaching this conclusion, these Justices reasoned that
§4(a)(2) of the ADEA was modeled on and is virtually
identical to the provision in Griggs, 42 U.S. C. §2000e–
2(a)(2). Section 4(a)(2) provides as follows:
“It shall be unlawful for an employer—
. . . . .
“(2) to limit, segregate, or classify his employees in
any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise
adversely affect his status as an employee, because of
such individual’s age.” 29 U.S. C. §623(a) (emphasis
added).
The provision of Title VII at issue in Griggs says this:
Cite as: 576 U. S. ____ (2015) 25
ALITO, J., dissenting
“It shall be an unlawful employment practice for an
employer—
. . . . .
“(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would
deprive or tend to deprive any individual of employ-
ment opportunities or otherwise adversely affect his
status as an employee, because of such individual’s
race, color, religion, sex, or national origin.” 42
U.S. C. §2000e–2(a)(2) (emphasis added).
For purposes here, the only relevant difference between
these provisions is that the ADEA provision refers to “age”
and the Title VII provision refers to “race, color, religion,
or national origin.” Because identical language in two
statutes having similar purposes should generally be
presumed to have the same meaning, the plurality in
Smith, echoed by JUSTICE SCALIA, saw Griggs as “compel-
ling” support for the conclusion that §4(a)(2) of the ADEA
authorizes disparate-impact claims. 544 U.S., at 233–234
(plurality opinion) (citing Northcross v. Board of Ed. of
Memphis City Schools, 412 U.S. 427, 428 (1973) (per
curiam)).
When it came to the other ADEA provision addressed in
Smith, namely, §4(a)(1), the Court unanimously reached
the opposite conclusion. Section 4(a)(1) states:
“It shall be unlawful for an employer—
“(1) to fail or refuse to hire or to discharge any indi-
vidual or otherwise discriminate against any individ-
ual with respect to his compensation, terms, condi-
tions, or privileges of employment, because of such
individual’s age.” 29 U.S. C. §623(a)(1) (emphasis
added).
The plurality opinion’s reasoning, with which JUSTICE
SCALIA agreed, can be summarized as follows. Under
§4(a)(1), the employer must act because of age, and thus
26 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
ALITO, J., dissenting
must have discriminatory intent. See 544 U.S., at 236, n.
6.9 Under §4(a)(2), on the other hand, it is enough if the
employer’s actions “adversely affect” an individual “be-
cause of . . . age.” 29 U.S. C. §623(a).
This analysis of §§4(a)(1) and (a)(2) of the ADEA con-
firms that the FHA does not allow disparate-impact
claims. Sections 804(a) and 805(a) of the FHA resemble
§4(a)(1) of the ADEA, which the Smith Court unanimously
agreed does not encompass disparate-impact liability.
Under these provisions of the FHA, like §4(a)(1) of the
ADEA, a defendant must act “because of ” race or one of
the other prohibited grounds. That is, it is unlawful for a
person or entity to “[t]o refuse to sell or rent,” “refuse to
negotiate,” “otherwise make unavailable,” etc. for a forbid-
den reason. These provisions of the FHA, unlike the Title
VII provision in Griggs or §4(a)(2) of the ADEA, do not
make it unlawful to take an action that happens to ad-
versely affect a person because of race, religion, etc.
The Smith plurality’s analysis, moreover, also depended
on other language, unique to the ADEA, declaring that “it
shall not be unlawful for an employer ‘to take any action
otherwise prohibited . . . where the differentiation is based
——————
9 The plurality stated:
“Paragraph (a)(1) makes it unlawful for an employer ‘to fail or refuse
to hire . . . any individual . . . because of such individual’s age.’ (Em-
phasis added.) The focus of the paragraph is on the employer’s actions
with respect to the targeted individual. Paragraph (a)(2), however,
makes it unlawful for an employer ‘to limit . . . his employees in any
way which would deprive or tend to deprive any individual of employ-
ment opportunities or otherwise adversely affect his status as an
employee, because of such individual’s age.’ (Emphasis added.) Unlike
in paragraph (a)(1), there is thus an incongruity between the employ-
er’s actions—which are focused on his employees generally—and the
individual employee who adversely suffers because of those actions.
Thus, an employer who classifies his employees without respect to age
may still be liable under the terms of this paragraph if such classifica-
tion adversely affects the employee because of that employee’s age—the
very definition of disparate impact.” 544 U.S., at 236, n. 6.
Cite as: 576 U. S. ____ (2015) 27
ALITO, J., dissenting
on reasonable factors other than age.’ ” 544 U.S., at 238
(quoting 81 Stat. 603; emphasis added). This “otherwise
prohibited” language was key to the plurality opinion’s
reading of the statute because it arguably suggested
disparate-impact liability. See 544 U.S., at 238. This
language, moreover, was essential to JUSTICE SCALIA’s
controlling opinion. Without it, JUSTICE SCALIA would have
agreed with Justices O’Connor, KENNEDY, and THOMAS
that nothing in the ADEA authorizes disparate-impact
suits. See id., at 245–246. In fact, even with this “other-
wise prohibited” language, JUSTICE SCALIA merely con-
cluded that §4(a)(2) was ambiguous—not that disparate-
impacts suits are required. Id., at 243.
The FHA does not contain any phrase like “otherwise
prohibited.” Such language certainly is nowhere to be
found in §§804(a) and 805(a). And for all the reasons
already explained, the 1988 amendments do not presup-
pose disparate-impact liability. To the contrary, legisla-
tive enactments declaring only that certain actions are not
grounds for liability do not implicitly create a new theory
of liability that all other facets of the statute foreclose.
C
This discussion of our cases refutes any notion that
“[t]ogether, Griggs holds[10] and the plurality in Smith
instructs that antidiscrimination laws must be construed
to encompass disparate-impact claims when their text
refers to the consequences of actions and not just to the
mindset of actors, and where that interpretation is con-
——————
10 Griggs, of course, “holds” nothing of the sort. Indeed, even the plu-
rality opinion in Smith (to say nothing of JUSTICE SCALIA’s controlling
opinion or Justice O’Connor’s opinion concurring in the judgment) did
not understand Griggs to create such a rule. See 544 U.S., at 240
(plurality opinion) (relying on multiple considerations). If Griggs
already answered the question for all statutes (even those that do not
use effects language), Smith is inexplicable.
28 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
ALITO, J., dissenting
sistent with statutory purpose.” Ante, at 10. The Court
stumbles in concluding that §804(a) of the FHA is more
like §4(a)(2) of the ADEA than §4(a)(1). The operative
language in §4(a)(1) of the ADEA—which, per Smith, does
not authorize disparate-impact claims—is materially
indistinguishable from the operative language in §804(a)
of the FHA.
Even more baffling, neither alone nor in combination do
Griggs and Smith support the Court’s conclusion that
§805(a) of the FHA allows disparate-impact suits. The
action forbidden by that provision is “discriminat[ion] . . .
because of ” race, religion, etc. 42 U.S. C. §3605(a) (em-
phasis added). This is precisely the formulation used in
§4(a)(1) of the ADEA, which prohibits “discriminat[ion] . . .
because of such individual’s age,” 29 U.S. C. §623(a)(1)
(emphasis added), and which Smith holds does not author-
ize disparate-impact claims.
In an effort to explain why §805(a)’s reference to “dis-
crimination” allows disparate-impact suits, the Court
argues that in Board of Ed. of City School Dist. of New
York v. Harris, 444 U.S. 130 (1979), “statutory language
similar to §805(a) [was construed] to include disparate-
impact liability.” Ante, at 11. In fact, the statutory lan-
guage in Harris was quite different. The law there was
§706(d)(1)(B) of the 1972 Emergency School Aid Act, which
barred assisting education agencies that “ ‘had in effect
any practice, policy, or procedure which results in the
disproportionate demotion or dismissal of instructional or
other personnel from minority groups in conjunction with
desegregation . . . or otherwise engaged in discrimination
based upon race, color, or national origin in the hiring,
promotion, or assignment of employees.’ ” 444 U.S., at
132–133, 142 (emphasis added).
After stating that the first clause in that unusual stat-
ute referred to a “disparate-impact test,” the Harris Court
concluded that “a similar standard” should apply to the
Cite as: 576 U. S. ____ (2015) 29
ALITO, J., dissenting
textually “closely connected” second clause. Id., at 143.
This was so, the Court thought, even though the second
clause, standing alone, may very well have required dis-
criminatory “intent.” Id., at 139. The Court explained
that the Act’s “less than careful draftsmanship” regarding
the relationship between the clauses made the “wording of
the statute . . . ambiguous” about teacher assignments,
thus forcing the Court to “look closely at the structure and
context of the statute and to review its legislative history.”
Id., at 138–140. It was the combined force of all those
markers that persuaded the Court that disparate impact
applied to the second clause too.
Harris, in other words, has nothing to do with §805(a) of
the FHA. The “wording” is different; the “structure” is
different; the “context” is different; and the “legislative
history” is different. Id., at 140. Rather than digging up a
36-year-old case that Justices of this Court have cited all
of twice, and never once for the proposition offered today,
the Court would do well to recall our many cases explain-
ing what the phase “because of ” means.
V
Not only is the decision of the Court inconsistent with
what the FHA says and our precedents, it will have unfor-
tunate consequences. Disparate-impact liability has very
different implications in housing and employment cases.
Disparate impact puts housing authorities in a very
difficult position because programs that are designed and
implemented to help the poor can provide the grounds for
a disparate-impact claim. As Magner shows, when dis-
parate impact is on the table, even a city’s good-faith
attempt to remedy deplorable housing conditions can be
branded “discriminatory.” 619 F.3d, at 834. Disparate-
impact claims thus threaten “a whole range of tax, wel-
fare, public service, regulatory, and licensing statutes.”
Washington v. Davis, 426 U.S. 229, 248 (1976).
30 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
ALITO, J., dissenting
This case illustrates the point. The Texas Department
of Housing and Community Affairs (the Department) has
only so many tax credits to distribute. If it gives credits
for housing in lower income areas, many families—
including many minority families—will obtain better
housing. That is a good thing. But if the Department
gives credits for housing in higher income areas, some of
those families will be able to afford to move into more
desirable neighborhoods. That is also a good thing. Either
path, however, might trigger a disparate-impact suit.11
This is not mere speculation. Here, one respondent has
sued the Department for not allocating enough credits to
higher income areas. See Brief for Respondent Inclusive
Communities Project, Inc., 23. But another respondent
argues that giving credits to wealthy neighborhoods vio-
lates “the moral imperative to improve the substandard
and inadequate affordable housing in many of our inner
cities.” Reply Brief for Respondent Frazier Revitalization
Inc. 1. This latter argument has special force because a
city can build more housing where property is least expen-
sive, thus benefiting more people. In fact, federal law
often favors projects that revitalize low-income communi-
ties. See ante, at 2.
No matter what the Department decides, one of these
respondents will be able to bring a disparate-impact case.
And if the Department opts to compromise by dividing the
credits, both respondents might be able to sue. Congress
surely did not mean to put local governments in such a
position.
The Solicitor General’s answer to such problems is that
HUD will come to the rescue. In particular, HUD regula-
——————
11 Tr.of Oral Arg. 44–45 (“Community A wants the development to be
in the suburbs. And the next state, the community wants it to be in the
poor neighborhood. Is it your position . . . that in either case, step one
has been satisfied[?] GENERAL VERRILLI: That may be right”).
Cite as: 576 U. S. ____ (2015) 31
ALITO, J., dissenting
tions provide a defense against disparate-impact liability
if a defendant can show that its actions serve “substantial,
legitimate, nondiscriminatory interests” that “neces-
sar[ily]” cannot be met by “another practice that has a less
discriminatory effect.” 24 CFR §100.500(b) (2014). (There
is, of course, no hint of anything like this defense in the
text of the FHA. But then, there is no hint of disparate-
impact liability in the text of the FHA either.)
The effect of these regulations, not surprisingly, is to
confer enormous discretion on HUD—without actually
solving the problem. What is a “substantial” interest? Is
there a difference between a “legitimate” interest and a
“nondiscriminatory” interest? To what degree must an
interest be met for a practice to be “necessary”? How are
parties and courts to measure “discriminatory effect”?
These questions are not answered by the Court’s assur-
ance that the FHA’s disparate-impact “analysis ‘is analo-
gous to the Title VII requirement that an employer’s
interest in an employment practice with a disparate im-
pact be job related.’ ” Ante, at 4 (quoting 78 Fed. Reg.
11470). See also ante, at 18 (likening the defense to “the
business necessity standard”). The business-necessity
defense is complicated enough in employment cases; what
it means when plopped into the housing context is any-
body’s guess. What is the FHA analogue of “job related”?
Is it “housing related”? But a vast array of municipal
decisions affect property values and thus relate (at least
indirectly) to housing. And what is the FHA analogue of
“business necessity”? “Housing-policy necessity”? What
does that mean?
Compounding the problem, the Court proclaims that
“governmental entities . . . must not be prevented from
achieving legitimate objectives, such as ensuring compli-
ance with health and safety codes.” Ante, at 21. But what
does the Court mean by a “legitimate” objective? And does
the Court mean to say that there can be no disparate-
32 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
ALITO, J., dissenting
impact lawsuit if the objective is “legitimate”? That is
certainly not the view of the Government, which takes the
position that a disparate-impact claim may be brought to
challenge actions taken with such worthy objectives as
improving housing in poor neighborhoods and making
financially sound lending decisions. See Brief for United
States as Amicus Curiae 30, n. 7.
Because HUD’s regulations and the Court’s pronounce-
ments are so “hazy,” Central Bank, 511 U.S., at 188–189,
courts—lacking expertise in the field of housing policy—
may inadvertently harm the very people that the FHA is
meant to help. Local governments make countless deci-
sions that may have some disparate impact related to
housing. See ante, at 19–20. Certainly Congress did not
intend to “engage the federal courts in an endless exercise
of second-guessing” local programs. Canton v. Harris, 489
U.S. 378, 392 (1989).
Even if a city or private entity named in a disparate-
impact suit believes that it is likely to prevail if a disparate-
impact suit is fully litigated, the costs of litigation, in-
cluding the expense of discovery and experts, may “push
cost-conscious defendants to settle even anemic cases.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 559 (2007).
Defendants may feel compelled to “abandon substantial
defenses and . . . pay settlements in order to avoid the
expense and risk of going to trial.” Central Bank, supra,
at 189. And parties fearful of disparate-impact claims
may let race drive their decisionmaking in hopes of avoid-
ing litigation altogether. Cf. Ricci, 557 U.S., at 563. All
the while, similar dynamics may drive litigation against
private actors. Ante, at 19.
This is not the Fair Housing Act that Congress enacted.
VI
Against all of this, the Court offers several additional
counterarguments. None is persuasive.
Cite as: 576 U. S. ____ (2015) 33
ALITO, J., dissenting
A
The Court is understandably worried about pretext. No
one thinks that those who harm others because of pro-
tected characteristics should escape liability by conjuring
up neutral excuses. Disparate-treatment liability, however,
is attuned to this difficulty. Disparate impact can be
evidence of disparate treatment. E.g., Church of Lukumi
Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 541–542 (1993)
(opinion of KENNEDY, J.); Hunter v. Underwood, 471 U.S.
222, 233 (1985). As noted, the facially neutral require-
ments in Griggs created a strong inference of discrimina-
tory intent. Nearly a half century later, federal judges
have decades of experience sniffing out pretext.
B
The Court also stresses that “many of our Nation’s
largest cities—entities that are potential defendants in
disparate-impact suits—have submitted an amicus brief in
this case supporting disparate-impact liability under the
FHA.” Ante, at 23–24.
This nod to federalism is puzzling. Only a minority of
the States and only a small fraction of the Nation’s munic-
ipalities have urged us to hold that the FHA allows
disparate-impact suits. And even if a majority supported
the Court’s position, that would not be a relevant consid-
eration for a court. In any event, nothing prevents States
and local government from enacting their own fair housing
laws, including laws creating disparate-impact liability.
See 42 U.S. C. §3615 (recognizing local authority).
The Court also claims that “[t]he existence of disparate-
impact liability in the substantial majority of the Courts of
Appeals for the last several decades” has not created “ ‘dire
consequences.’ ” Ante, at 24. But the Court concedes that
disparate impact can be dangerous. See ante, at 18–22.
Compare Magner, 619 F.3d, at 833–838 (holding that
efforts to prevent violations of the housing code may vio-
34 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v.
INCLUSIVE COMMUNITIES PROJECT, INC.
ALITO, J., dissenting
late the FHA), with 114 Cong. Rec. 2528 (1968) (remarks
of Sen. Tydings) (urging enactment of the FHA to help
combat violations of the housing code, including “rat prob-
lem[s]”). In the Court’s words, it is “paradoxical to con-
strue the FHA to impose onerous costs on actors who
encourage revitalizing dilapidated housing.” Ante, at 19.
Our say-so, however, will not stop such costly cases from
being filed—or from getting past a motion to dismiss (and
so into settlement).
C
At last I come to the “purpose” driving the Court’s anal-
ysis: The desire to eliminate the “vestiges” of “residential
segregation by race.” Ante, at 5, 23. We agree that all
Americans should be able “to buy decent houses without
discrimination . . . because of the color of their skin.” 114
Cong. Rec. 2533 (remarks of Sen. Tydings) (emphasis
added). See 42 U.S. C. §§3604(a), 3605(a) (“because of
race”). But this Court has no license to expand the scope
of the FHA to beyond what Congress enacted.
When interpreting statutes, “ ‘[w]hat the legislative
intention was, can be derived only from the words . . .
used; and we cannot speculate beyond the reasonable
import of these words.’ ” Nassar, 570 U. S., at ___ (slip op.,
at 13) (quoting Gardner v. Collins, 2 Pet. 58, 93 (1829)).
“[I]t frustrates rather than effectuates legislative intent
simplistically to assume that whatever furthers the stat-
ute’s primary objective must be the law.” Rodriguez v.
United States, 480 U.S. 522, 526 (1987) (per curiam). See
also, e.g., Board of Governors, FRS v. Dimension Financial
Corp., 474 U.S. 361, 373–374 (1986) (explaining that
“ ‘broad purposes’ ” arguments “ignor[e] the complexity of
the problems Congress is called upon to address”).
Here, privileging purpose over text also creates constitu-
tional uncertainty. The Court acknowledges the risk that
disparate impact may be used to “perpetuate race-based
Cite as: 576 U. S. ____ (2015) 35
ALITO, J., dissenting
considerations rather than move beyond them.” Ante, at
21. And it agrees that “racial quotas . . . rais[e] serious
constitutional concerns.” Ante, at 20. Yet it still reads the
FHA to authorize disparate-impact claims. We should
avoid, rather than invite, such “difficult constitutional
questions.” Ante, at 22. By any measure, the Court today
makes a serious mistake.
* * *
I would interpret the Fair Housing Act as written and so
would reverse the judgment of the Court of Appeals.