Thursday, June 25, 2015
While everyone else in the country was reading the Supreme Court's opinion on health care subsidies, I had a chance to look at the other opinion issued today: Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. This case was about whether disparate impact claims are cognizable under the Fair Housing Act. Given how negative the Court's opinions seem to have been when it comes to disparate impact -- or even any theory of liability other than for fully self-aware motive -- pretty much since Griggs v. Duke Power Co., with the partial exception of Smith v. City of Jackson, no one expected the Court to rule that they were. That's why the last two FHA disparate impact cases the Court granted cert on settled before the Court could decide them.
Somewhat surprisingly, the Court held that disparate impact claims were cognizable in an 5-4 opinion written by Justice Kennedy. Essentially, the Court based its decision on the statutory language, the history of the Act, and the Act's purpose. Although the FHA does not have language like Title VII or the ADEA that focuses on actions that would "tend to deprive" people of housing opportunities, the FHA does prohibit "otherwise mak[ing] unavailable" housing opportunities because of a person's protected status. That "otherwise" language was key.
It's not all great news for the plaintiffs here or for disparate impact under Title VII, though. Much of the opinion was devoted to discussing how the proof structure limits the claim. The plaintiff must point to a particular practice that causes a disparity, and the defendant has the opportunity to show that the practice is "necessary to achieve a valid [government] interest." The Court suggested that would be difficult in this case, especially where a single housing decision might not be evidence of any policy that would produce a disparity. Finally, the Court cautioned that the relief ordered be very narrowly tailored to the specific practice that was arbitrary, so that government discretion was not cabined more than necessary.
Of special interest in the employment context was this odd statement about the employment cases:
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 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, supra, at 578. The cases interpreting Title VII and the ADEA provide essential background and instruction in the case now before the Court.
Even though the Court refers to the employment cases, in which the defendant bears the burden to prove that its practice is a business necessity, the statement about needing the plaintiff to prove an alternative practice before a court can reject a business justification, seems to put more of a burden on the plaintiff. Also, the test for business necessity itself is unclear. Congress, in the Civil Rights Act of 1991, stated that the standard should be what it had been the day before the Court decided Wards Cove v. Atonio, which had altered the standard to make it simply a legitimate business reason. But the only case since the CRA to discuss the business necessity standard was Ricci v. DeStefano, which didn't really do a full disparate impact analysis and seemed to interpret business necessity more like the Wards Cove reasonableness standard. My guess is that this will not help the lower courts much, although it may encourage them to use a reasonableness or business judgment type rule to assess the business necessity defense in the future.
There were two dissents. Justice Thomas dissented, essentially arguing that "because of" could only mean an intent to discriminate, which in turn requires that protected class be the motive for the decision. His dissent is interesting for those of us who study the history of Title VII and the EEOC because of its description of the influence of Alfred Blumrosen, who helped create the EEOC and served as its first Chief of Conciliations and Director of Federal-State relations. Justice Thomas was also worried about how this theory will frustrate the creation and maintenance of low-income housing, especially in places like Houston, which is a minority-majority city.
Justice Alito also dissented and was joined by the Chief Justice as well as Justices Scalia and Thomas. Justice Alito agreed that "because of" required that protected status be the decisionmaker's reason for the decision. He also disagreed with the Court's reading of Congress's intent and the history of the statute. He further disagreed that Griggs's rationale should be imported to the FHA, and implicitly disagreed that Griggs was supportable or even really about anything but sneaky disparate treatment. Finally, Justice Alito worried about how the theory would work in the housing context, which he sees as much more complicated than a relatively simple policy choice at a single employer.
In the end, those who think that disparate impact is a necessary tool in the fight against inequality can breathe some sigh of relief--it's not completely dead. At the same time, though, its viability seems very limited, and the standard for liability is not at all clear.