On January 21, 2015, the U.S. Supreme Court heard oral argument in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. – the case presenting the issue of whether disparate impact claims are cognizable under the Fair Housing Act (FHA). Our prior alert regarding the oral argument is available here. A Supreme Court decision with respect to this important issue is now looming on the horizon.

As we await the decision in Inclusive Communities, it is time to begin thinking about the potential implications of the alternative outcome scenarios. Moreover, creditors also should begin to consider the potential implications of the alternative outcome scenarios in relation to the Equal Credit Opportunity Act (ECOA). The potential implications with respect to the ECOA may depend, in turn, upon the statutory construction rationale employed by the Court in its decision.


  • The alternative outcome scenarios and the potential statutory construction rationales:
    o The absence of effects-based language
    o The construction afforded to the language prohibiting a person from otherwise making a dwelling unavailable because of race or another prohibited basis
    o The Chevron deference analysis
    o The Presidential remarks upon signing the FHA Amendments of 1988
    o The import of the three FHA “exceptions” discussed at oral argument, the constitutional avoidance argument and the like
  • Potential implications for mortgage creditors subject to the FHA
  • Potential implications for non-mortgage creditors and the issue of whether disparate impact claims are cognizable under the ECOA
  • Potential reactions of the CFPB and the DOJ


12:00 PM - 1:00 PM  | Webinar


Alan S. Kaplinsky, Practice Leader
Consumer Financial Services Group


Richard J. Andreano, Jr., Practice Leader
Mortgage Banking Group

Peter N. Cubita
Consumer Financial Services Group

Christopher J. Willis
Consumer Financial Services Group

This program is open to Ballard Spahr clients and members of the financial services industry. There is no cost to attend. This program is not eligible for continuing education credits.

Please register at least two days before the webinar. Login details will be sent to all approved registrants. For more information, contact Lisa M. Prickril at prickrill@ballardspahr.com.

Related Practices

Consumer Financial Services
Mortgage Banking