Thursday’s blockbuster opinion in the Texas Department of Housing and Community Affairs v. Inclusive Communities Project case will be primarily and justly remembered for interpreting the Fair Housing Act to include a disparate-impact cause of action. In anti-discrimination law, “disparate treatment” requires an intent to discriminate, while “disparate impact” can allow a plaintiff to win even in the absence of discriminatory intent. For instance, if an entity has a policy that disproportionately affects a protected group, it has to justify that disparity even in the absence of any allegation of discriminatory intent. If it cannot produce such a justification, it will lose. As many progressives have already noted, this interpretation of the FHA is a big win, as discriminatory intent is often difficult to prove.
While less obvious, however, there is a passage in the FHA case that can also be counted as a potential win for progressives. On Page 17 of the slip opinion, Justice Anthony Kennedy writes, “Recognition of disparate-impact liability under the FHA also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract the unconscious prejudices and disguised animus that escape easy classification as disparate treatment.” (Emphasis mine.) Disparate impact has long been seen as a way of proving “disguised animus”—so that is nothing new. However, the idea that disparate impact can be used to get at “unconscious prejudices” is, to my knowledge, an idea new to a Supreme Court majority opinion.
The idea of “unconscious prejudice” is that one can have prejudices of which one is unaware that nonetheless drive one’s actions. It has been kicking around in academia for years. As Mahzarin Banaji and Anthony Greenwald discuss in Blindspot: Hidden Biases of Good People, Greenwald created the test to assess such unconscious biases in 1994. This test can now be found at implicit.harvard.edu. Since taking academia by storm, it has migrated over to industry—companies ranging from Google to Pfizer have laudably adopted it to assist in making their workplaces more inclusive.
Read the entire article, including portion where Professor Yoshino discusses potential implications of the Kennedy’s acknowledgment, here.