Page:Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.pdf/17

Rh dispose of this argument. Both Title VII and the ADEA contain identical "because of" language, see 42 U. S. C. §2000e–2(a)(2); 29 U. S. C. §623(a)(2), and the Court nonetheless held those statutes impose disparate-impact liability.

In addition, it is of crucial importance that the existence of disparate-impact liability is supported by amendments to the FHA that Congress enacted in 1988. By that time, all nine Courts of Appeals to have addressed the question had concluded the Fair Housing Act encompassed disparate-impact claims. See Huntington Branch, NAACP v. Huntington, 844 F. 2d 926, 935–936 (CA2 1988); Resident Advisory Bd. v. Rizzo, 564 F. 2d 126, 146 (CA3 1977); Smith v. Clarkton, 682 F. 2d 1055, 1065 (CA4 1982); Hanson v. Veterans Administration, 800 F. 2d 1381, 1386 (CA5 1986); Arthur v. Toledo, 782 F. 2d 565, 574–575 (CA6 1986); Metropolitan Housing Development Corp. v. Arlington Heights', 558 F. 2d 1283, 1290 (CA7 1977); United States v. Black Jack, 508 F. 2d 1179, 1184–1185 (CA8 1974); Halet v. Wend Investment Co., 672 F. 2d 1305, 1311 (CA9 1982); United States v. ''Marengo Cty. Comm'n'', 731 F. 2d 1546, 1559, n. 20 (CA11 1984).

When it amended the FHA, Congress was aware of this unanimous precedent. And with that understanding, it made a considered judgment to retain the relevant statutory text. See H. R. Rep. No. 100–711, p. 21, n. 52 (1988) (H. R. Rep.) (discussing suits premised on disparate-impact claims and related judicial precedent); 134 Cong. Rec. 23711 (1988) (statement of Sen. Kennedy) (noting unanimity of Federal Courts of Appeals concerning disparate impact); Fair Housing Amendments Act of 1987: Hearings on S. 558 before the Subcommittee on the Constitution of the Senate Committee on the Judiciary, 100th Cong., 1st Sess., 529 (1987) (testimony of Professor Robert Schwemm) (describing consensus judicial view that the FHA imposed disparate-impact liability). Indeed,