The U.S. Supreme Court heard oral argument last week in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.— the case presenting the issue of whether disparate impact claims are cognizable under the Fair Housing Act (FHA).  Two prior cases presenting this issue were settled after merits briefing but before oral argument was heard in the Supreme Court.

We attended the oral argument and prepared a detailed summary of it based on our observations and those of members of the Ballard Spahr Housing Group who also were in attendance.  Our summary of the argument is available here.  The Supreme Court will issue its decision sometime before the end of June 2015.

A ruling that disparate impact claims are not cognizable under the FHA should have positive implications with respect to the separate issue of whether disparate impact claims are cognizable under the Equal Credit Opportunity Act (ECOA).  Conversely, because the ECOA’s text differs in certain respects from that of the FHA, a ruling that disparate impact claims are cognizable under the FHA would not resolve the issue of whether such claims are cognizable under the ECOA.  For more on the ECOA issue, see Peter’s Business Lawyer article titled “The ECOA Discrimination Proscription and Disparate Impact – Interpreting the Meaning of the Words That Actually Are There,” 61 Bus. Law. 829 (2006).