Supreme Court Shows Surprising Willingness To Combat ‘Unconscious’ Discrimination

BY JUDD LEGUM POSTED ON JUNE 25, 2015 AT 11:25 AM
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Much of the attention on the Supreme Court today has focused on King v. Burwell, which upheld federal subsidies and preserved health care for millions. But a less prominent case relating to the Fair Housing Act of 1968, Texas Department of Housing and Community Affairs v. The Inclusive Community Project, Inc., could be equally significant.
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The 5-4 ruling, which surprised many court watchers, found that the housing policies could be deemed discriminatory based on “disparate impact.” This means that plaintiffs could prove discrimination by showing that the impact of a housing policy was discriminatory, even if there was no conscious attempt to discriminate.
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While some of the ruling, written by Justice Kennedy and joined by the four liberal members of the court, turned on technical issues of statutory interpretation and precedent, the underlying theme was a finding by the Supreme Court that a lot of discrimination, in 1968 and today, is either unconscious or hidden:
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[The law] permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this way disparate-impact liability may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping.

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If the court had gone the other way, plaintiffs could have only been successful in housing discrimination cases if they could prove a specific intent to discriminate. In the absence of someone publicly admitting they are racist, this is very difficult — if not impossible — to prove. The impact would have been to essentially gut the Fair Housing Act of 1968.
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Even with the ruling, these kind of discrimination lawsuits are still difficult to win. The court made clear that it is not enough simply to show a disparate impact. Plaintiffs have to prove there was a specific policy without a legitimate business purpose that created the disparity.
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http://thinkprogress.org/justice/2015/06/25/3673952/supreme-court-shows-surprising-willingness-combat-unconscious-discrimination/