House Approves Amendment to Limit "Disparate Impact"

Recently, the House of Representatives passed an amendment to H.R. 2578, the Fiscal Year 2016 Commerce, Justice, and Science Appropriations Act, authored by Rep. Scott Garrett, R-N.J., that would limit disparate impact prosecutions. The amendment would bar the Department of Justice from using funds for litigation in which they seek to apply disparate impact theory.

Disparate impact liability allows the government to allege discrimination on the basis of race or other factors based solely on statistical analyses that find disproportionate results among different groups of people, regardless of evidence of actual discriminatory actions or intent.

The amendment comes before the Supreme Court rules on the use of the theory of “disparate impact.” In Texas Department of Housing vs. Inclusive Communities Project, the Texas Department of Housing argues that the text and history of the law confirm that fair housing law does not allow disparate impact claims, but instead authorizes only claims based on intentionally discriminatory conduct. The Supreme Court heard the case this past spring and should announce its ruling soon.