On November 7, 2011, the Supreme Court granted a petition for a writ of certiorari in the case of Magner v. Gallagher, 10-1032, which poses the question of whether disparate impact claims are cognizable under the Fair Housing Act ("FHA").
Under the disparate impact theory of discrimination, a plaintiff can establish "discrimination" based solely on the results of a neutral policy, without having to show any actual intent to discriminate. The seminal disparate impact case is Griggs v. Duke Power, 401 U.S. 424 (1971), in which the Court held that a power company's neutral requirement that all employees have a high school education regardless of whether it was necessary for their job was discriminatory under Title VII because it had a disparate effect on African-Americans.
The Supreme Court has never decided whether the FHA permits plaintiffs to bring claims under a disparate impact theory. To date, 11 of 12 federal courts of appeals have held that the FHA permits disparate impact claims. However, each of these appellate court decisions was based on an analysis of the Supreme Court's then-current Title VII jurisprudence-which the appellate courts interpreted as permitting disparate impact claims-and a conclusion that disparate impact claims are consistent with the purposes of the FHA....
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