Page:Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.pdf/66

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Alito, J., dissenting

must have discriminatory intent. See 544 U. S., at 236, n. 6.[1] Under §4(a)(2), on the other hand, it is enough if the employer's actions "adversely affect" an individual “because of . . . age.” 29 U. S. C. §623(a).

This analysis of §§4(a)(1) and (a)(2) of the ADEA confirms that the FHA does not allow disparate-impact claims. Sections 804(a) and 805(a) of the FHA resemble §4(a)(1) of the ADEA, which the Smith Court unanimously agreed does not encompass disparate-impact liability. Under these provisions of the FHA, like §4(a)(1) of the ADEA, a defendant must act "because of" race or one of the other prohibited grounds. That is, it is unlawful for a person or entity to "[t]o refuse to sell or rent," "refuse to negotiate," "otherwise make unavailable," etc. for a forbidden reason. These provisions of the FHA, unlike the Title VII provision in Griggs or §4(a)(2) of the ADEA, do not make it unlawful to take an action that happens to adversely affect a person because of race, religion, etc.

The Smith plurality's analysis, moreover, also depended on other language, unique to the ADEA, declaring that "it shall not be unlawful for an employer 'to take any action otherwise prohibited . . . where the differentiation is based

  1. The plurality stated: "Paragraph (a)(1) makes it unlawful for an employer 'to fail or refuse to hire . . . any individual . . . because of such individual’s age.' (Emphasis added.) The focus of the paragraph is on the employer’s actions with respect to the targeted individual. Paragraph (a)(2), however, makes it unlawful for an employer ‘to limit . . . his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age.' (Emphasis added.) Unlike in paragraph (a)(1), there is thus an incongruity between the employer’s actions—which are focused on his employees generally—and the individual employee who adversely suffers because of those actions. Thus, an employer who classifies his employees without respect to age may still be liable under the terms of this paragraph if such classification adversely affects the employee because of that employee’s age—the very definition of disparate impact.” 544 U. S., at 236, n. 6.