The Supreme Court last term held in the Comcast case that “but-for” causation must be shown by plaintiffs under the 1866 Civil Rights Act’s § 1981 and also announced that this standard is the default position presumed to govern all other federal civil rights statutes. This Article deals with how Comcast’s but-for presumption applies to fair housing cases.

The answer is complicated, because these cases are often brought under multiple laws. For example, a Black applicant who is rejected by an apartment complex ostensibly for having inadequate income, but who believes this decision was racially motivated because the complex accepted a white tester with similar credentials, may sue under the Fair Housing Act, the 1866 Civil Rights Act’s § 1982, the Fourteenth Amendment’s Equal Protection Clause (if the complex is public housing or otherwise involves state action), and a state or local fair housing law. If the evidence shows the complex rejected the Black applicant both because of an unlawful motive (race) and a lawful one (economics), who should win? The answer depends on what causation standard applies in these laws. The causation issue seems easy enough to resolve for claims under the 1866 Civil Rights Act’s § 1982, the companion provision of the one involved in Comcast, which will now also be governed by the but-for standard. But in Equal Protection Clause claims, Comcast’s statutory presumption does not apply, and such claims have for decades been governed by the more lenient “motivating-factor” standard. And claims under state and local fair housing laws will vary from place to place, because they are also unaffected by the Comcast presumption concerning federal statutes and many of them provide for more lenient causation standards.

The most difficult issue for housing discrimination cases will involve claims under the Fair Housing Act, whose “because of” prohibitions must now be taken to suggest, based on Comcast, a but-for standard. But a strong counterargument exists. For decades, the lower courts have rejected but-for causation in Fair Housing Act cases in favor of a more lenient standard. Moreover, this view was well-established by 1988 when Congress amended the Fair Housing Act without changing its crucial “because of” language, a fact that the Supreme Court has held may indicate Congress’s endorsement of prior established standards. And a further complication will arise in the growing number of Fair Housing Act suits that include a retaliation claim under the statute’s § 3617, which may, as in Title VII employment discrimination cases, have a different causation standard than that of the Fair Housing Act’s other substantive provisions.

This Article concludes that, in multiclaim fair housing cases, courts will have to analyze the causation issue for each law separately, likely producing different results. As for the Fair Housing Act, most circuits will be bound by their precedents establishing a less-than-but-for standard, at least until an en banc decision makes a change. A circuit split on the Fair Housing Act issue seems likely, leading eventually to Supreme Court review or intervention by Congress, which, as the final authority on statutory matters, is ultimately responsible for resolving this issue.

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Notes/Citation Information

Robert G. Schwemm, Fair Housing and the Causation Standard after Comcast, 66 Villanova Law Review 63-118 (2021).

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