Supreme Court Shows Surprising Willingness To Combat ‘Unconscious’ Discrimination


Much of the attention on the Supreme Court today has focused on King v. Burwell, which upheld federal subsidies and preserved health care for millions. But a less prominent case relating to the Fair Housing Act of 1968, Texas Department of Housing and Community Affairs v. The Inclusive Community Project, Inc., could be equally significant.

The 5–4 ruling, which surprised many court watchers, found that the housing policies could be deemed discriminatory based on “disparate impact.” This means that plaintiffs could prove discrimination by showing that the impact of a housing policy was discriminatory, even if there was no conscious attempt to discriminate.

While some of the ruling, written by Justice Kennedy and joined by the four liberal members of the court, turned on technical issues of statutory interpretation and precedent, the underlying theme was a finding by the Supreme Court that a lot of discrimination, in 1968 and today, is either unconscious or hidden:

[The law] permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this way disparate-impact liability may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping.

If the court had gone the other way, plaintiffs could have only been successful in housing discrimination cases if they could prove a specific intent to discriminate. In the absence of someone publicly admitting they are racist, this is very difficult — if not impossible — to prove. The impact would have been to essentially gut the Fair Housing Act of 1968.


Even with the ruling, these kind of discrimination lawsuits are still difficult to win. The court made clear that it is not enough simply to show a disparate impact. Plaintiffs have to prove there was a specific policy without a legitimate business purpose that created the disparity.

A robust causality requirement is important in ensuring that defendants do not resort to the use of racial quotas. Courts must therefore examine with care whether a plaintiff has made out a prima 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 “artificial, arbitrary, and unnecessary barriers.”

Still, there is a significant difference between difficult and impossible. The law’s true impact stems not only from lawsuits that are fully adjudicated but from stakeholders knowing that the threat of a discrimination lawsuit is real. The court’s decision not only gives people a fighting chance to take on discriminatory housing policies, it also prevents a dangerous precedent of requiring proof of discriminatory intent that could have potentially undermined anti-discrimination in many other circumstances.

At the most basic level, the Supreme Court recognized fight against discrimination is not over, concluding, “The Court acknowledges the Fair Housing Act’s continuing role in moving the Nation toward a more integrated society.” That’s a very big deal.