Alito, J., dissenting
The 1988 safe-harbor provisions have all the hallmarks of a compromise among these factions. These provisions neither authorize nor bar disparate-impact claims, but they do provide additional protection for persons and entities engaging in certain practices that Congress especially wished to shield. We "must respect and give effect to these sorts of compromises." Ragsdale v. Wolverine World Wide, Inc., 535 U. S. 81, 93–94 (2002).
It is not hard to see why such a compromise was attractive. For Members of Congress who supported disparate impact, the safe harbors left the favorable lower court decisions in place. And for those who hoped that this Court would ultimately agree with the position being urged by the United States, those provisions were not surplusage. In the Circuits in which disparate-impact FHA liability had been accepted, the safe-harbor provisions furnished a measure of interim protection until the question was resolved by this Court. They also provided partial protection in the event that this Court ultimately rejected the United States’ argument. Neither the Court, the principal respondent, nor the Solicitor General has cited any case in which the canon against surplusage has been applied in circumstances like these.[1]
- ↑ In any event, even in disparate-treatment suits, the safe harbors are not superfluous. For instance, they affect “the burden-shifting framework” in disparate-treatment cases. American Ins. Assn. v. Department of Housing and Urban Development, ___ Supp. 3d ___, 2014 WL 5802283, *10 (DC 2014). Under the second step of the burden-shifting scheme from McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973),
"the issue of intent versus effect—I am afraid that is going to have to be decided by the Supreme Court." Ibid. See also id., at 10 (“It is not always a violation to refuse to sell, but only to refuse to sell 'because of' another’s race. This language made clear that the 90th Congress meant only to outlaw acts taken with the intent to discriminate . . . . To use any standard other than discriminatory intent . . . would jeopardize many kinds of beneficial zoning and local ordinances” (statement of Sen. Hatch)).
