K&L Gates Legal Insight: Is the Third Time the Charm? The Supreme Court to Again Consider Whether the Fair Housing Act Recognizes a Disparate Impact Theory of Liability

By: Paul F. Hancock, Andrew C. Glass, Roger L. Smerage, Olivia Kelman

For the third time in four terms, the United States Supreme Court has granted certiorari to consider whether the Fair Housing Act recognizes a disparate impact theory of liability. Under that theory, a plaintiff may establish liability for actions performed without any intent to discriminate simply because they may have a disproportionate effect on groups sharing certain statutorily defined characteristics, such as race or national origin. In two recent cases, the Supreme Court was set to decide the issue, only to have the parties settle just before argument. Now, in Texas Department of Housing & Community Affairs v. The Inclusive Communities Project, Inc. (the “Texas DHCA case”), the Court has another opportunity to decide the question.

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