Page:Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.pdf/45

Rh , dissenting Without torturing the English language, the meaning of these provisions of the FHA cannot be denied. They make it unlawful to engage in any of the covered actions "because of"—meaning "by reason of" or "on account of," Nassar, supra, at ___ (slip op., at 9)—race, religion, etc. Put another way, "the terms [after] the 'because of' clauses in the FHA supply the prohibited motivations for the intentional acts . . . that the Act makes unlawful." ''American Ins. Assn. v. Department of Housing and Urban Development'', ___ F. Supp. 3d ___, ___, n. 20, 2014 WL 5802283, at *8, n. 20 (DC 2014). Congress accordingly outlawed the covered actions only when they are motivated by race or one of the other protected characteristics.

It follows that the FHA does not authorize disparate-impact suits. Under a statute like the FHA that prohibits actions taken "because of" protected characteristics, intent makes all the difference. Disparate impact, however, does not turn on "'subjective intent.'" Raytheon Co. v. Hernandez, 540 U. S. 44, 53 (2003). Instead, "'treat[ing] [a] particular person less favorably than others because of ' a protected trait" is "'disparate treatment,'" not disparate impact. Ricci, 557 U. S., at 577 (emphasis added). See also, e.g., Personnel Administrator of Mass. v. Feeney', 442 U. S. 256, 279 (1979) (explaining the difference between "because of" and "in spite of"); Hernandez v. New York,