Wednesday, the House of Representatives approved an amendment to H.R. 2578, the Fiscal Year 2016 Commerce, Justice, and Science Appropriations Act, that would bar the use of appropriated funds by the Department of Justice to bring Fair Housing Act enforcement actions that rely on an allegation of liability under the HUD Disparate Impact Rule. The amendment, which was approved by a roll call vote of 232 – 196, was introduced by Representative Scott Garrett of New Jersey.

We are disappointed that Representative Garrett’s amendment was not drafted more broadly so as to also prohibit the use of appropriated funds by the DOJ to enforce the Equal Credit Opportunity Act in a manner that relies upon an allegation of disparate impact liability.

As we await the U.S. Supreme Court ruling in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., we are hopeful that the Supreme Court will moot the need for Representative Garrett’s amendment by ruling that disparate impact claims are not cognizable under the FHA. Such a ruling by the Supreme Court should have positive implications with respect to the analogous issue of whether disparate impact claims are cognizable under the ECOA. See generally P. Cubita & M. Hartmann, The ECOA Discrimination Proscription and Disparate Impact — Interpreting the Meaning of the Words That Actually Are There, 61 Bus. Law. 829 (2006).