(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), alleging 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 predominantly white suburban neighborhoods. Relying on statistical evidence, the District Court concluded that the ICP had established a 

prima facie showing of disparate impact. After assuming the Department’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 Housing and Urban Development issued a regulation interpreting the 

FHA to encompass disparate-impact liability and establishing a burden-shifting framework for adjudicating such claims. The Fifth Circuit 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 relevant 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 Employment 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 refers to the consequences of actions and not just to the mindset of actors, and where that interpretation is consistent with statutory purpose. 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 “because 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 language, 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 liability.

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 disparateimpact 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 disparateimpact 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 approaches a housing authority should follow 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 their policies serve, an analysis that is analogous to Title VII’s business necessity standard. It would be paradoxical 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 disparate-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 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.” 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 decision. 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. Remedial orders in disparate-impact cases should concentrate on the

elimination of the offending practice, and courts should strive to design race-neutral remedies. Remedial orders that impose racial targets 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 efforts to encourage revitalization of communities that have long suffered 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 dissenting opinion. ALITO, J., filed a dissenting opinion, in which ROBERTS, 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, Washington, 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 COMMUNITY AFFAIRS, ET AL., PETITIONERS v. THE INCLUSIVE 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 liability. In contrast to a disparate-treatment case, where a 

“plaintiff must establish that the defendant had a discriminatory intent or motive,” a plaintiff bringing a disparateimpact claim challenges practices that have a “disproportionately adverse effect on minorities” and are otherwise

unjustified by a legitimate rationale. Ricci v. DeStefano, 

557 U. S. 557, 577 (2009) (internal quotation marks omitted). The question presented for the Court’s determination 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. 

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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. Congress 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 credits for the development of housing units in low-income 

areas. 

In the State of Texas these federal credits are distributed 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 consideration 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 statutorily 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 District of Texas. As relevant here, it brought a disparateimpact 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 segregated 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 predominantly white suburban neighborhoods. The ICP 

contended that the Department must modify its selection 

criteria in order to encourage the construction of lowincome housing in suburban communities.

The District Court concluded that the ICP had established 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% Caucasian areas, but only approved 37.4% of proposed nonelderly 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 Department to rebut the ICP’s prima facie showing of disparate 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 defendant—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 addition of new selection criteria for the tax credits. For instance, 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. 

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Opinion of the Court 

2012). The remedial order contained no explicit racial 

targets or quotas.

While the Department’s appeal was pending, the Secretary of Housing and Urban Development (HUD) issued a

regulation interpreting the FHA to encompass disparateimpact 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 necessary to achieve one or more substantial, legitimate, nondiscriminatory interests.” §100.500(c)(2). HUD has clarified that this step of the analysis “is analogous to the Title 

VII requirement that an employer’s interest in an employment 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 interests 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, consistent 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 lowincome housing tax credits. Id., at 282–283. In a concurring 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 federal law providing for the distribution of low-income housing 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. Warley, 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 conditions that arose in the mid-20th century. Rapid urbanization, 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 governmental 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. Kraemer, 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 purchasing homes in affluent areas. See, e.g., M. Klarman, Unfinished 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 prejudices 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 unrest; and, in response, President Lyndon Johnson established the National Advisory Commission on Civil Disorders, commonly known as the Kerner Commission. Exec. 

Order No. 11365, 3 CFR 674 (1966–1970 Comp.). After 

extensive factfinding the Commission identified residential segregation and unequal housing and economic conditions 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 Commission 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 Commission 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 deepening 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 national origin.” Id., at 263. 

In April 1968, Dr. Martin Luther King, Jr., was assassinated 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 “familial 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 statutes 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 addressed 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 plaintiffs 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. 

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Opinion of the Court 

“(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, 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 employment 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 design of the statute. The Court explained that, in 

§703(a)(2), Congress “proscribe[d] not only overt discrimination but also practices that are fair in form, but discriminatory 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 provides, 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 “manifest 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 intelligence 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 individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, 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 order 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 challenged 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. 

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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 plurality observed, the text of these provisions “focuses on the 

effects of the action on the employee rather than the motivation for the action of the employer” and therefore compels 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 Commission regulation interpreting the ADEA to impose

disparate-impact liability, see 544 U. S., at 243–247 (opinion concurring in part and concurring in judgment). 

Together, Griggs holds 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 consistent with 

statutory purpose. These cases also teach that disparateimpact 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. 

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 central 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 estaterelated transactions to discriminate 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). 

Applied here, the logic of Griggs and Smith provides

strong support for the conclusion that the FHA encompasses disparate-impact claims. Congress’ use of the 

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 (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. 

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A comparison to the antidiscrimination statutes examined in Griggs and Smith is useful. Title VII’s and the 

ADEA’s “otherwise adversely affect” language is equivalent in function and purpose to the FHA’s “otherwise make 

unavailable” language. In these three statutes the operative 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 sentences that begin with prohibitions on disparate treatment, they serve as catchall phrases looking to consequences, 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 International Dictionary 1598 (1971). This similarity in text

and structure is all the more compelling given that Congress passed the FHA in 1968—only four years after passing 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 disparateimpact 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); Hanson 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. Arlington 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 statutory text. See H. R. Rep. No. 100–711, p. 21, n. 52 (1988) 

(H. R. Rep.) (discussing suits premised on disparateimpact claims and related judicial precedent); 134 Cong.

Rec. 23711 (1988) (statement of Sen. Kennedy) (noting 

unanimity of Federal Courts of Appeals concerning disparate impact); 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., 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 conclusion 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 uniform 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 statute”); 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 without changing the relevant provision, “[t]his is persuasive 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’ understanding that disparate-impact liability exists under 

the FHA is revealed by the substance of the 1988 amendments. 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 furnishing appraisals of real property to take into consideration 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] prohibits 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 substance.” §3607(b)(4). And finally, Congress specified:

“Nothing in [the FHA] limits the applicability of any reasonable . . . 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 disparateimpact liability did not exist under the FHA. See Gustafson 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 amendments 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 allowing 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 Congress’ 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) provision, an employer is permitted to take an otherwise prohibited action where “the differentiation is based on reasonable 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. According 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 attributable to a nonage factor that was ‘reasonable.’” 544 U. S., 

at 239. The plurality thus reasoned that the RFOA provision 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 embedding 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 disparateimpact liability is even stronger here than it was in Smith. 

As originally enacted, the ADEA included the RFOA provision, 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 sufficient 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 (discussing these cases). The availability of disparate-impact 

liability, furthermore, has allowed private developers to 

vindicate the FHA’s objectives and to protect their property rights by stopping municipalities from enforcing arbitrary and, in practice, discriminatory ordinances barring

the construction of certain types of housing units. See, 

e.g., Huntington, supra, at 18. Recognition of disparateimpact liability under the FHA also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that 

escape easy classification as disparate treatment. In this 
 

 

18 TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v. 

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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 mandates the “removal of artificial, arbitrary, and unnecessary 

barriers,” not the displacement of valid governmental 

policies. Griggs, supra, at 431. The FHA is not an instrument 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 Seicshnaydre, 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 approaches a housing authority should follow in the sound

exercise of its discretion in allocating tax credits for lowincome 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, businesses, 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 business 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 necessary 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 dilapidated housing in our Nation’s cities merely because some 

other priority might seem preferable. Entrepreneurs must 

be given latitude to consider market factors. Zoning officials, 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 community’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 suburban communities. As HUD itself recognized in its recent rulemaking, disparate-impact liability “does not 

mandate that affordable housing be located in neighborhoods 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 defendants 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 connection 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 disparate 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 disparateimpact 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 disparateimpact liability to be so expansive as to inject racial considerations 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 compliance 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. 

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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 determination 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 salience 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 raceneutral devices to increase the accessibility of city contracting 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., concurring 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 housing authorities’ race-neutral efforts to encourage revitalization 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 attempting to solve the problems facing inner cities does not doom

that endeavor at the outset. 

The Court holds that disparate-impact claims are cognizable 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 congressional reaffirmation of that result, residents and policymakers have come to rely on the availability of disparateimpact 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 intended 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 substantial 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 nothing 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 Commission’s grim prophecy that “[o]ur Nation is moving toward

two societies, one black, one white—separate and unequal.” Kerner Commission Report 1. The Court acknowledges 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 COMMUNITY AFFAIRS, ET AL., PETITIONERS v. THE INCLUSIVE 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 practices 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 individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, 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,’” University of Tex. Southwestern Medical Center v. Nassar, 570 

U. S. ___, ___ (2013) (slip op., at 9) (some internal quotation 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 

—————— 

1The current 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 judgment) (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 defendant 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 meaning,” 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 presumption. 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. 

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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 individual’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 protected 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 individual’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 disparateimpact claims.3 

—————— 

3Even “[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 Statutory 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 commission’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 demonstrable 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, traditional, 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 Blumrosen, one of the principal creators of disparate-impact 

liability at EEOC, rejected what he described as a “defeatist view of Title VII” that saw the statute as a “compromise” with a limited scope. A. Blumrosen, Black Employment 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 opportunity of classes protected by title VII constitutes discrimination.” 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 plaintiffs not to seek review because he believed “‘that the 

record in the case present[ed] a most unappealing situation 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 disparateimpact theory was inevitable, EEOC filed an amicus 

brief in this Court seeking deference for its position.4 

—————— 

4Efforts 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 process 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 provisions 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 Committee 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 Manipulated 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 Department of Housing and Urban Development proposed the disparateimpact 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 eradicate 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 unsubstantiated—assumption that, in the absence of discrimination, 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 acknowledging 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 ethnic 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 Argentina, Belgians in Russia, Jews in Poland, and Spaniards in

Chile—among many others.” Ibid. (footnotes omitted). “In 

the seventeenth century Ottoman Empire,” this phenomenon 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 complexities 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 “‘patently unconstitutional,’” even when it supposedly springs 

from good intentions. Fisher v. University of Tex. at Austin, 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: “Government 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 incorporate 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 operative text, unlike that of the ADEA’s, does not even mirror 

Title VII’s. 

 Today, however, the majority inexplicably declares that 

“the logic of Griggs and Smith” 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 provisions 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) (footnote 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 waiting 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. Unsurprisingly, 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 proposed 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] essential 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 COMMUNITY AFFAIRS, ET AL., PETITIONERS v. THE INCLUSIVE 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 housing 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 actionable because making landlords respond to “rodent infestation, missing dead-bolt locks, inadequate sanitation facilities, 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 adjusted median family income,” they were disproportionately

affected by those rent increases, i.e., there was a “disparate 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 liability, 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 slumlords 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., Arlington 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 disparateimpact 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. 

—————— 

1We 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 dwelling 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 unlawful for an employer to take a variety of adverse employment 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 ” religion. 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 consideration 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 articles. In every single one, the phrase linked an action and 

a reason for the action.2 

—————— 

2See al-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 football 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 Sunday’ because of state troopers’ violent assault on the marchers”); Pressley, ‘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 “because 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.” American Ins. Assn. v. Department of Housing and Urban Development, ___ 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 disparateimpact 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. Hernandez, 540 U. S. 44, 53 (2003). Instead, “‘treat[ing] [a] particular 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 discrimination “‘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 characteristics. 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 conduct 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 disparateimpact 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 transactions 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) (plurality opinion) (slip op., at 14); id., at ___ (ALITO, J., concurring 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 American 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 Keffeler, 537 U. S. 371, 384–385 (2003). The result of these 

ordinary rules of interpretation is that even without “because 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 “because 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 “unskilled workers,” Fuller & Geide-Stevenson, Consensus 

Among Economists: Revisited, 34 J. Econ. Educ. 369, 378

(2003), and minorities tend to be disproportionately represented 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 Internet materials as visited June 23, 2015, and available in 

Clerk of Court’s case file). Assuming for the sake of argument 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 majority 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 presumably 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 argued 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 authorize disparate-impact claims. It is hard to imagine how 

Congress could have more clearly stated that the FHA

prohibits only intentional discrimination than by forbidding 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 discrimination.” 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 impact”). It is anachronistic to think that Congress authorized 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 disparateimpact 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 Amendments 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 disparateimpact 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 

—————— 

3These new provisions state:

“Nothing in this subchapter prohibits a person engaged in the business 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 because such person has been convicted by any court of competent jurisdiction of the illegal manufacture or distribution of a controlled substance 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 interpretation 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 disparateimpact 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. Department 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) (explaining 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, without 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 decisions of the Courts of Appeals, it fails to mention something 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. Huntington 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 housingrelated 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. Birmingham, 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 implausible that the 1988 Congress was aware of certain lower 

court decisions but oblivious to the United States’ considered 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 interpretation on which the Court and the Solicitor General purport 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 interpretation” 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 controlling 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 disparateimpact 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] acquiesced 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 adhere to it. It is “impossible to assert with any degree

of assurance that congressional failure to act represents” affirmative congressional approval of the 

courts’ statutory interpretation. Congress may legislate, 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. Congressional inaction cannot amend a duly enacted statute.’ 

Patterson v. McLean Credit Union, 491 U. S. 164, 175, 

n. 1 (1989) (quoting Johnson v. Transportation Agency, 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 assumed 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 enshrined 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 

—————— 

6At 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 especially 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 attractive. 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 provisions 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 framework” 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 damages 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 safeharbor provisions set out reasons that are necessarily legitimate.

Moreover, while a factfinder in a disparate-treatment case can sometimes 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 harbors 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].” Connecticut 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 nonphysical 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 disparateimpact 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, however, 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 certiorari. 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, however, because deference is inapt for a more familiar reason: 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 

—————— 

8At 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 avenue 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 language 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 employer 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, unless it was proved that the requirements were “job related,” the plaintiffs could recover by showing that the requirements “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 educational 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 interpretation, the body of the Court’s opinion—quite remarkably—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 employees 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 “disproportionately 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 provisions 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 disparateimpact 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 ambiguous 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 (opinion 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 employment 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 “compelling” 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 individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, 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 “because of . . . age.” 29 U. S. C. §623(a).

This analysis of §§4(a)(1) and (a)(2) of the ADEA confirms 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 forbidden 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 adversely 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 

—————— 

9The 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.’ (Emphasis 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 employment 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 employer’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 classification 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 “otherwise prohibited” language, JUSTICE SCALIA merely concluded that §4(a)(2) was ambiguous—not that disparateimpacts 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 presuppose disparate-impact liability. To the contrary, legislative 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 plurality 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) (emphasis 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 authorize disparate-impact claims.

In an effort to explain why §805(a)’s reference to “discrimination” 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 disparateimpact liability.” Ante, at 11. In fact, the statutory language 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 statute 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 discriminatory “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 explaining 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 unfortunate 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 disparate 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. Disparateimpact claims thus threaten “a whole range of tax, welfare, 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 violates “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 expensive, thus benefiting more people. In fact, federal law 

often favors projects that revitalize low-income communities. 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-

—————— 

11Tr. 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 “necessar[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 disparateimpact 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 assurance that the FHA’s disparate-impact “analysis ‘is analogous to the Title VII requirement that an employer’s 

interest in an employment practice with a disparate impact 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 anybody’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 compliance 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 pronouncements 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 decisions 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 disparateimpact suit believes that it is likely to prevail if a disparateimpact suit is fully litigated, the costs of litigation, including 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 avoiding 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 protected 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 requirements in Griggs created a strong inference of discriminatory 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 municipalities 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 consideration 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 disparateimpact 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 problem[s]”). In the Court’s words, it is “paradoxical to construe 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 analysis: 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 statute’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 constitutional 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.