Page:Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.pdf/67

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Cite as: 576 U. S. ____ (2015)

Alito, J., dissenting

on reasonable factors other than age.'" 544 U. S., at 238 (quoting 81 Stat. 603; emphasis added). This "otherwise prohibited" language was key to the plurality opinion's reading of the statute because it arguably suggested disparate-impact liability. See 544 U. S., at 238. This language, moreover, was essential to Justice Scalia's controlling opinion. Without it, Justice Scalia would have agreed with Justices O’Connor, Kennedy, and Thomas that nothing in the ADEA authorizes disparate-impact suits. See id., at 245–246. In fact, even with this "otherwise prohibited" language, Justice Scalia merely concluded that §4(a)(2) was ambiguous—not that disparate-impacts suits are required. Id., at 243.

The FHA does not contain any phrase like "otherwise prohibited." Such language certainly is nowhere to be found in §§804(a) and 805(a). And for all the reasons already explained, the 1988 amendments do not presuppose disparate-impact liability. To the contrary, legislative enactments declaring only that certain actions are not grounds for liability do not implicitly create a new theory of liability that all other facets of the statute foreclose.

C

This discussion of our cases refutes any notion that "[t]ogether, Griggs holds[1] and the plurality in Smith instructs that anti-discrimination laws must be construed to encompass disparate-impact claims when their text refers to the consequences of actions and not just to the

mindset of actors, and where that interpretation is con-

  1. Griggs, of course, "holds" nothing of the sort. Indeed, even the plurality opinion in Smith (to say nothing of Justice Scalia's controlling opinion or Justice O'Connor's opinion concurring in the judgment) did not understand Griggs to create such a rule. See 544 U. S., at 240 (plurality opinion) (relying on multiple considerations). If Griggs already answered the question for all statutes (even those that do not use effects language), Smith is inexplicable.