What does “because of race” mean in an antidiscrimination statute like the Fair Housing Act of 1968 (FHA)? The question arose last Term in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc., the case in which the Supreme Court recognized a disparate impact cause of action in the FHA. In dissent, Justice Alito asserted that allowing the statute to reach beyond intentional discrimination required attributing an untenable meaning to the statutory phrase “because of”—or, in Justice Alito’s words, “torturing the English language.” The majority did not directly answer that point, relying instead on the way these same words were interpreted by two Supreme Court cases on Title VII of the Civil Rights Act of 1964 (Title VII) and the Age Discrimination in Employment Act of 1967 (ADEA). In The Many Meanings of “Because of”: A Comment on Inclusive Communities Project, Noah Zatz takes on the textual challenge set out by the dissent. He convincingly argues that the phrase “because of” is far broader than “motivated by” and can readily encompass causal relationships that would support a disparate impact claim.
I agree with Zatz that the words “because of” present no impediment to a disparate impact claim under the Fair Housing Act. But I arrive at that conclusion after grappling with a point that Zatz’s analysis neglects: that, in ordinary speech, the set of causal relationships evoked by a phrase like “because of race” depends on the type of event to which those words are attached. For instance, there are fewer plausible causal relationships between attribute and act implicated in the sentence “A slammed the door in B’s face because of B’s race” than in the sentence “B had trouble finding an apartment because of his race.” Recognizing that different kinds of acts inflect the meaning of “because of” in different ways sheds new light on the arguments of both the majority and the dissent in Inclusive Communities—showing the dissent to be less wrong and the majority more right in their respective textual approaches than Zatz gives them credit for. [...]