Trade Groups File Amicus Brief In Disparate Impact Case

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On September 3, industry trade groups filed amici curiae briefs with the U.S. Supreme Court in support of petitioners in the case of Township of Mt. Holly v. Mt. Holly Gardens Citizens in Action, No. 11-1507. The briefs argue, among other things,  that (i) neither the legislative history of the Fair Housing Act nor the text of Section 804(a) demonstrate any congressional intent to authorize claims based on a disparate impact theory of liability, (ii) an agency cannot create a right of action absent a clearly expressed intent for one, (iii) Congress did not intend to create a disparate-impact cause of action against lenders under Section 805, noting that, like Section 804, it contains no language about the “affect” or “effects” of facially neutral conduct, and that the Supreme Court has “long held” the “’normal definition of discrimination’” to be differential treatment not differential impact.

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