In a 5-4 decision today, the U.S. Supreme Court recognized that disparate-impact claims maintain adjudication viability under the Fair Housing Act (FHA). Justices Kennedy, Ginsberg, Breyer, Sotomayor, and Kagan provided the majority opinions, while Chief Justice Roberts and Justices Alito, Scalia, and Thomas wrote dissenting opinions. The majority opinion is available here.

The Court acknowledges that the Fair Housing Act contributes significantly to the removal of “artificial, arbitrary, and unnecessary barriers” that may arise in the management and distribution policies that affect equal access to affordable housing. Disparate-impact claims, the Court majority notes, should be scrutinized under measurable criteria and data. Specifically, the party bringing the claim must establish “robust” causation in the form of evidence – statistical or otherwise – that a policy directly causes disparate impact. Such a provision is meant to protect defendants from being held liable for racial disparities they did not create, to maintain that race alone cannot be a pervasive or determining factor for claims, and to encourage the use of workable community information, including costs, traffic patterns, quality of life, and preservation of historic architecture, to establish that housing decisions did not construct “artificial, arbitrary, or unnecessary” barriers. There is currently a framework under the FHA for evaluating and litigating disparate impact claims, but the applicability of various factors and data will ultimately fall under judicial interpretation. A more detailed overview of the decision can be found within this alert.