The Supreme Court will soon decide whether the Fair Housing Act allows for disparate impact liability. At oral argument, Justice Sotomayor highlighted a major issue in the case: words that unambiguously impose liability for disparate treatment (“to refuse to sell or rent”) appear along with words that arguably impose liability for disparate impact (“or otherwise make unavailable”).
If that were enough to make the Fair Housing Act ambiguous, the Court would defer to the interpretation of the agency charged with administering the statute, and the agency has said that the Fair Housing Act imposes liability for disparate impact. But the Court should not defer to the agency’s interpretation because, when read in the proper context, the words “or otherwise make unavailable” cannot make an otherwise unambiguous provision prohibiting disparate treatment ambiguous.
That’s not just a matter of statutory interpretation, but also common sense. The words before a catchall provision like “or otherwise” inform the meaning of the words after it. You wouldn’t follow AT&T’s instructions on activating a “phone, SIM card, or other device” to install your digital camera, even though a camera is a device. Just as true, the words “or otherwise make unavailable” takes the requirement of disparate treatment in “refuse to sell or rent.”
Hard questions will inevitably arise. If I say that I want to live in California, Texas, or another populous state, reasonable people could disagree about whether I would want to live in Michigan (the tenth most populous state in the country). But this case does not present a question of such difficulty because while it is sometimes debatable whether the words listed before the catchall provision encompasses the words after it, the words after the catchall provision cannot contradict the words before it. And so it is clear, in the previous example, that I would not want to live in Wyoming (the least populous state in the country). Just the same, the words “or otherwise make unavailable” cannot change a statute imposing liability for disparate treatment into one imposing liability for disparate impact because the two are at war with each other. Disparate treatment statutes require a finding of intentional discrimination; disparate impact statutes do not.
The Fair Housing Act, even with the words “or otherwise make unavailable,” unambiguously prohibits disparate treatment. Don’t let anyone tell you otherwise.