Monday, September 26th, is the Supreme Court’s “Long Conference”

While I have my eyes on a number of cert. petitions pending before the Court, today, let me call readers’ attention to Magner v. Gallagher, No. 10-1032, petition for cert. pending from 619 F.3d 823 (8th Cir. 2010), reh’g denied, No. 09-1209, No. 09-1528, No. 09-1579, 2010 U.S. App. LEXIS 27066 (8th Cir. Nov. 15, 2010) (Colloton, J. dissenting from denial of reh’g en banc), rev’g 595 F. Supp. 2d 987 (D. Minn 2008) (Ericksen, J.).  Magner is not an employment case, but rather a Fair Housing Act (FHA) case.  The questions presented in the city of St. Paul’s petition are:

1.       Are disparate-impact claims cognizable under the FHA?

2.       If disparate-impact claims are cognizable, should they be analyzed under:

a.   The burden-shifting approach used by the Fourth, Sixth, and Tenth Circuits, Smith v. Town of Clarkton, N.C., 682 F.2d 1055, 1065 (4th Cir. 1982); Betsy v. Turtle Creek Assocs., 736 F.2d 983, 989 n.5 (4th Cir. 1984); Arthur v. City of Toledo, Ohio, 782 F.2d 565, 574-75 (6th Cir. 1986); Mountainside Mobile Estates P’ship v. Sec’s of Hous. & Urban Dev., 56 F.3d 1243, 1252 (10th Cir. 1995); Buckeye Cmty. Hope Found. v. City of Kuyahoga Falls, 263 F.3d 627, 640 (6th Cir. 2001), rev’d in part and vacated in part, 538 U.S. 188 (2003); Reinhart v. Lincoln Cnty., 482 F.3d 1225, 1229 (10th Cir. 2007);

b.   The modified burden-shifting framework adopted by the Eighth and Ninth Circuits, Harris v. Itzhaki, 183 F.3d 1043, 1051 (9th Cir. 1999); Darst v. Webbe Tenant Ass’n Bd. v. St. Louis Hous. Auth., 417 F.3d 898, 902-03 (8th Cir. 2005); or

c.   The hybrid burden-shifting and balancing test adopted by the First and Second Circuits, Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 934 (2d Cir. 1988); Langlois v. Abbington Hous. Auth., 207 F.3d 43, 49 (1st Cir. 2000)?

The city’s petition approaches the cognizability of disparate-impact claims under the FHA using a textualist’s approach.  The petition notes that, when the Supreme Court recognized disparate-impact claims under the Age Discrimination in Employment Act (ADEA) in Smith v. City of Jackson, Miss., 544 U.S. 228 (2005), the Smith Court explained that the text of Title VII and the text of the ADEA justified disparate-impact treatment.  Section 703(a)(2) of Title VII and Section 4(a)(2) of the ADEA have identical language proscribing activities that would “adversely affect” a person because of a protected characteristic.  By contrast, the Fair Housing Act has no such language.  Rather, the text of 42 U.S.C. § 3604(a) makes it unlawful to “… make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.”  The petition notes that the aforesaid language is similar to the language in Section 4(a)(1) of the ADEA, which the Supreme Court in Smith noted would not support a claim of disparate-impact liability. 544 U.S. at 236 n.6. (plurality opinion).  Finally, in Alexander v. Sandoval, 532 U.S. 275, 280-81 (2001) the Court refused to find disparate-impact liability because Title XI of the Civil Rights Act forbids only intentional discrimination and does not prohibit actions taken with a non-discriminatory motive that has a disparate impact. See 42 U.S.C. § 2000(d).

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