In Texas Department of Housing and Community Affairs v. Inclusive Communities, 2015 U.S. LEXIS 4249 (S. Ct. June 25, 2015), the U.S. Supreme Court upheld the use of the “disparate impact” theory in proving housing discrimination under the federal Fair Housing Act. That theory had been recognized by the vast majority of the circuit courts, including the U.S. Court of Appeals for the Second Circuit starting with its decision in Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926 (2d Cir. 1988).
Even though the decision in Inclusive Communities did not directly change the law in the Second Circuit or the other circuits that had recognized the “disparate impact” theory, the Supreme Court decision is significant because it did lay down guidelines for what the court would deem to be a proper use of the “disparate impact” theory. The Supreme Court also expounded on the purpose and strength of the federal Fair Housing Act with language that will likely see its way into briefs and future lower court decisions, even in cases that do not involve the “disparate impact” theory.
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