Alito, J., 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,
its writer and actress characters and its pronouncements on art"); A Rumpus on 'The Bachelor,' p. C2 ("Anderson has stood out from the pack . . . mostly because of that post-production censoring of her nether regions” (ellipsis in original)); Steinberg, KD2DC, Keeping Hype Alive, pp. D1, D4 (explaining that a commenter "asked that his name not be used because of his real job"); Boren, Former FSU Boss Bowden Wants 12 Wins to Be Restored, p. D2 ("[T]he NCAA restored the 111 victories that were taken from the late Joe Paterno because of the Jerry Sandusky child sex-abuse scandal”); Oklahoma City Finally Moves Past .500 Mark, p. D4 ("Trail Blazers all-star LaMarcus Aldridge won't play in Wednesday night’s game against the Phoenix Suns because of a left thumb injury").
