Emigrant Mortgage Company, et al. v. Jean Robert Saint-Jean, et al.

In Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519 (2015), this Court held that disparate impact discrimination claims are cognizable under the Fair Housing Act (“FHA”), but that such claims must be cabined by important guardrails. The 2-1 decision below from the Second Circuit raises the following important questions on which the circuits are now divided:

1. Did the Second Circuit apply the wrong legal standard when, in the words of Judge Park’s dissent, it created a special “fairness-based” test for equitable tolling of discrimination claims that “breaks with other circuits” by not requiring plaintiffs to show they acted diligently in pursuing their claims?

2. Did the Second Circuit apply the wrong legal standard for disparate impact claims when it split with the Third, Fourth, Ninth, Eleventh, and D.C. Circuits by allowing plaintiffs to prove their claims by showing lending practices had an “adverse or disproportionate” effect on borrowers of one racial group, as opposed to requiring that the practices be disproportionately bad for that group compared to other racial groups?

3. Inclusive Communities requires plaintiffs to demonstrate a “robust causality” between the challenged policy or practice and the alleged disparate impact. The Fourth, Fifth, Eighth, Ninth, and Eleventh Circuits have split over the meaning of “robust causality,” while the Second Circuit has jettisoned it as “non-binding.” Should the Court clarify Inclusive Communities’ “robust causality requirement” or, in the alternative, overrule Inclusive Communities because it has proven unworkable? (I)