On June 17, 2013, the U.S. Supreme Court granted a petition for certiorari in a case that will decide whether “disparate impact” liability — liability based solely on a practice’s alleged discriminatory effect, though the actor had no intent to discriminate — can be imposed under the Fair Housing Act. The Court took the case despite urging from the federal government to decline it. The Court appears poised to reject disparate impact liability.
This is not the first time the Court has granted review in a case raising the viability of disparate impact claims un- der the Fair Housing Act. The last time the Court took the issue, the petitioner withdrew the case prior to argument. There is some evidence that officials in the U.S. Department of Justice may have encouraged that decision in order to prevent the Court from ruling. It remains to be seen whether a similar outcome will occur here.
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