CVS Pharmacy v. Doe Brief of Amicus Curiae

    No. 20-1374

IN THE

mpreme Court of tlje Mnttcb States

CVS P h a r m a c y , In c .; Ca r e m a r k , L.L.C.; Ca r e m a r k  
Ca l if o r n ia  S p e c ia l t y  P h a r m a c y , L.L.C.,

Petitioners,
v.

J oh n  D o e , O n e ; R ic h a r d  R o e ; J oh n  D o e , F o u r , in  
h is  pe r s o n a l  c a p a c it y  a n d  a s  th e  a u t h o r ize d  

r e p r e s e n t a t iv e  o f  J o h n  D o e , T h r e e ; J o h n  D o e , 
F iv e ; o n  b e h a lf  o f  t h e m se lv e s  a n d  a l l  oth ers  

sim il a r l y  s it u a t e d ,
Respondents.

On Writ of Certiorari to the United States Court 
of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE 
NAACP LEGAL DEFENSE & EDUCATIONAL 

FUND, INC., IN SUPPORT OF RESPONDENTS

Sherrilyn  A. I fill 
Director-Counsel 

Janai S. N elson  
Sam uel  Spital 
V ictoria  W enger 
NAACP L egal D efense & 
Educational Fu n d , In c . 
40 Rector Street, 5th Floor 
New York, NY 10006

Coty M ontag*
M ahogane  D. R eed 
NAACP L egal D efense & 
Educational Fu n d , In c . 
700 14th Street, NW 
Suite 600
Washington, DC 20005
202-682-1300
cmontag@naacpldf.org

October 29, 2021 * Counsel of Record

mailto:cmontag@naacpldf.org


1

TABLE OF CONTENTS

TABLE OF AUTHORITIES....................................... ii

INTEREST OF AMICUS CURIAE............................ 1

INTRODUCTION AND SUMMARY OF 
ARGUMENT.................................................................2

ARGUMENT..................................................................4

I. THE TEXT OF SECTION 504 IS CONSISTENT 
WITH DISPARATE IMPACT LIABILITY...............4

A. A Statute May Encompass Disparate Impact
Claims in the Absence of Specific Phrasing..6

B. Statutory Text Referring to ‘‘Discrimination” 
Can Give Rise to Disparate Impact Claims ..8

II. DISPARATE IMPACT LIABILITY UNDER
SECTION 504 IS SUPPORTED BY ITS 
PURPOSE AND HISTORY..................................... 12

A. Disparate Impact Claims Are Necessary to
Achieve Section 504’s Statutory Purpose of 
Empowering People with Disabilities to 
Independently Participate in and 
Contribute to Society.....................................13

B. The History of Section 504 Demonstrates
that Congress Intended the Statute to 
Encompass Disparate Impact Liability...... 15

III. DISPARATE IMPACT LIABILITY IS 
ESPECIALLY NECESSARY TO PROTECT 
PEOPLE FROM INTERSECTIONAL 
DISCRIMINATION BASED ON DISABILITY
AND RA C E ................................................................ 17

CONCLUSION.......................................................... 21



11

TABLE OF AUTHORITIES

Cases Page(s)

Alexander v. Choate,
469 U.S. 287 (1985)............................ 3, 13, 15, 16

Am. Council for the Blind v. Paulson,
525 F.3d 1256 (D.C. Cir. 2008)...........................14

Bd. of Educ. of City Sch. Dist. of New York 
v. Harris,
444 U.S. 130 (1979).......................................11, 13

CSX Transp., Inc. v. Ala. Dep’t of Revenue,
562 U.S. 277 (2011) (Thomas, J., dissenting).... 9

Doe v. CVS Pharmacy, Inc.,
982 F.3d 1204 (9th Cir. 2020).............................. 3

EEOC v. Joe’s Stone Crab, Inc.,
220 F.3d 1263 (11th Cir. 2000)......................6, 15

Graoch Assocs. No. 33, L.P. v.
Louisville/ Jefferson Cnty. Metro Hum.
Reis. Comm’n,
508 F.3d 366 (6th Cir. 2007).............................. 10

Griggs v. Duke Power Co.,
401 U.S. 424 (1971)..........................1, 6-7, 12-13

Guardians Ass’n v. Civ. Serv. Comm’n 
of New York,
463 U.S. 582 (1983)............................................... 9

Int’l Brotherhood of Teamsters v.



United States,
431 U.S. 324 (1977)................................................5

Lewis v. City of Chicago,
560 U.S. 205 (2010).................................................1

Miller v. Am. Express Co.,
688 F.2d 1235 (9th Cir. 1982)............................ 10

Regents of Univ. of Cal. u. Bakke,
438 U.S. 265 (1978)................................................ 9

Ricci v. DeStefano,
557 U.S. 557 (2009)................................................ 5

Smith v. City of Jackson,
544 U.S. 228 (2005)...................................7, 12-13

Tex. Dep’t of Hous. & Cmty. Affs. v.
Inclusive Cmtys. Project, Inc.,
576 U.S. 519 (2015)..................................... passim

United States v. City of Black Jack,
508 F.2d 1179 (8th Cir. 1974).............................. 5

Watson v. Fort Worth Bank & Trust,
487 U.S. 977 (1988)................................................ 5

Statutes

15 U.S.C. § 1691 et seq................................................10

20 U.S.C. § 1601, et seq...............................................10

29 U.S.C. § 623(a).........................................................7

Ill



IV

29U.S.C. § 701, et seq......................................... 13, 15

29U.S.C. § 794(a).........................................................2

42 U.S.C. § 20Q0e, et seq.......................................   1

42 U.S.C. § 3601, et seq.........................................  1

42 U.S.C. § 12101, et seq.............................................. 2

42 U.S.C. § 18116(a).....................................................2

Other Authorities

Adults with Disabilities: Ethnicity and 
Race, Ctrs. for Disease Control &
Prevention (Sept. 16, 2020), 
https://www.cdc.gov/ncbddd/disabilityan 
dhealth/materials/infographic- 
disabilities-ethnicity-race.html..........................17

Alice Abrokwa, “When They Enter, We All 
Enter”: Opening the Door to 
Intersectional Discrimination Claims 
Based on Race and Disability, 24 Mich.
J. Race & L. 15, 17-18 (2018)............................. 19

Asthma Disparities in America, Asthma &
Allergy Found, of Am.,
aafa.org/asthmadisparities (last visited
Oct. 25, 2021)......................................................... 18

Catherine Jampel, Intersections of
Disability Justice, Racial Justice and 
Environmental Justice 1, 9, Env’t Socio.
(Jan. 2018)............................................................. 18

https://www.cdc.gov/ncbddd/disabilityan


V

Carolyn Thompson, Civil Rights Panel: 
Disabled Students of Color Punished 
More, AP News (July 23, 2019), 
https://apnews.com/article/diseriminatio
n-education-politics-united-states-
school-discipline-
aald0514e886442382d09a086f923359............. 19

Consumer Fin. Prot. Bureau, Comment 
6(a)-2 to Regulation B, 12 C.F.R. Part 
1002.......................................... ..............................10

COVID-19, Health Equity Considerations 
and Racial and Ethnic Minority 
Groups, Ctrs. for Disease Control &
Prevention (Apr. 19, 2021), 
https://www.cdc.gov/coronavirus/2019- 
ncov/community/health-equity/race- 
ethnicity.html........................................................20

David Williams & Tony Rucker,
Under standing and Addressing Racial
Disparities in Health Care 75, Health
Care Fin. Rev. (Summer 2000),
http s ://w w w. ncbi. nlm. nih. go v/p me/articl
es/PMC4194634/.................................................... 18

Disability Impacts All o f Us, Ctrs. for 
Disease Control & Prevention, 
https://w w w. ede. gov/neb ddd/dis ability an 
dhealth/infographic-disability-impacts- 
all.html (last visited Oct. 18, 2021).................... 17

Elizabeth Courtney-Long et al.,

https://apnews.com/article/diseriminatio
https://www.cdc.gov/coronavirus/2019-ncov/community/health-equity/race-ethnicity.html
https://www.cdc.gov/coronavirus/2019-ncov/community/health-equity/race-ethnicity.html
https://www.cdc.gov/coronavirus/2019-ncov/community/health-equity/race-ethnicity.html
https://w


VI

Socioeconomic Factors at the
Intersection o f Race and Ethnicity
Influencing Health Risks for People
with Disabilities, J. Racial Ethnic
Health Disparities (Apr. 2017),
https://pubmed.ncbi.nlm.nih.gov/270590
52/............................................................................18

Health Disparities in HIV/AID, Viral 
Hepatitis, STDs, and TB, Ctrs. for 
Disease Control & Prevention (Sept. 14,
2020),
https://www.cdc.gov/nchhstp/healthdisp
arities/africanamericans.html.............................20

Implementation of the Fair Housing Act’s 
Discriminatory Effects Standard, 78 
Fed. Reg. 11460, 11466 (Feb. 15, 2013)....... .....10

Mark C. Weber, Accidentally on Purpose:
Intent in Disability Discrimination Law,
56 B.C.L. Rev. 1417 (2015).................................. 15

Silvia Yee et al., Compounded Disparities:
Health Equity at the Intersection of 
Disability, Race, and Ethnicity (2018), 
https://dredf.org/wp- 
content/uploads/2018/01/Compounded- 
Disparities-Intersection-of-Disabilities- 
Race-and-Ethnicity.pdf. ........................... .......... 19

William Frey, The US Will Become 
‘Minority White’ in 2045, Census 
Projects, Brookings (Mar. 14, 2018), 
https://www.brookings.edu/blog/the- 
avenue/2018/03/14/the-us-will-beeome-

https://pubmed.ncbi.nlm.nih.gov/270590
https://www.cdc.gov/nchhstp/healthdisp
https://dredf.org/wp-content/uploads/2018/01/Compounded-Disparities-Intersection-of-Disabilities-Race-and-Ethnicity.pdf
https://dredf.org/wp-content/uploads/2018/01/Compounded-Disparities-Intersection-of-Disabilities-Race-and-Ethnicity.pdf
https://dredf.org/wp-content/uploads/2018/01/Compounded-Disparities-Intersection-of-Disabilities-Race-and-Ethnicity.pdf
https://dredf.org/wp-content/uploads/2018/01/Compounded-Disparities-Intersection-of-Disabilities-Race-and-Ethnicity.pdf
https://www.brookings.edu/blog/the-avenue/2018/03/14/the-us-will-beeome-
https://www.brookings.edu/blog/the-avenue/2018/03/14/the-us-will-beeome-


minority-white-in-2045-census- 
projects/........................................



INTEREST OF AMICUS CURIAE1

The NAACP Legal Defense & Educational Fund, 
Inc. (LDF) is the nation’s first and foremost civil rights 
law organization. Through litigation, advocacy, public 
education, and outreach, LDF strives to secure equal 
justice under the law for all Americans and to break 
down barriers that prevent Black people from 
realizing their basic civil and human rights.

Throughout its history, LDF has advocated for 
disparate impact liability under various statutes as an 
essential tool for rooting out persistent discrimination 
and expanding equal opportunities. See, e.g., Tex. Dep’t 
of Hous. & Cmty. Affs. u. Inclusive Cmtys. Project, Inc., 
576 U.S. 519 (2015); Lewis v. City of Chicago, 560 U.S. 
205 (2010); Griggs v. Duke Power Co., 401 U.S. 424 
(1971). LDF has litigated numerous civil rights cases 
under the Fair Housing Act (FHA), 42 U.S.C. § 3601 et 
seq., and Title VII of the Civil Rights Act of 1964 (Title 
VII), 42 U.S.C. § 2000e, among other statutes, under a 
disparate impact theory of discrimination. See, e.g., 
Complaint, Henderson v. Vision Prop. Mgmt., LLC, No. 
20-12649 (E.D. Mich. Sept. 29, 2020); Complaint, 
Taylor v. City of Detroit, No. 20-11860 (E.D. Mich. July 
9, 2020); Complaint, Pickett v. City of Cleveland, No. 
19-2911 (N.D. Ohio Dec. 18, 2019); Complaint, 
MorningSide Cmty. Org. v. Sabree, No. 16-8807-CH 
(Mich. Cir. Ct. July 13, 2016). LDF has also filed cases 
alleging discrimination against people with 
disabilities, including under Section 504 of the

1

1 Pursuant to Supreme Court Rule 37.6, counsel for amicus curiae 
state that no counsel for a party authored this brief in whole or in 
part and that no person other than amicus curiae, its members, 
or its counsel made a monetary contribution to the preparation or 
submission of this brief. All parties have consented to the filing of 
this brief.



2

Rehabilitation Act of 1973 (Section 504), 29 U.S.C. 
§ 794(a), and the Americans with Disabilities Act of 
1990, 42 U.S.C. § 12101 et seq. See, e.g., Complaint, 
Houston Just. v. Abbott, No. 5:21-00848 (W.D. Tex. 
Sept. 7. 2021); Complaint, Fla. State Conf. o f the 
NAACP v. Lee, No. 4:21-00187-WS-MAF (N.D. Fla. 
May 5, 2021); Complaint, People First o f Ala. v. 
Merrill, No. 2:20-00619-AKK (N.D. Ala. May 1, 2020).

LDF has a substantial interest in the outcome of 
this case, which will affect the viability of disparate 
impact claims premised on disability discrimination 
under two critical antidiscrimination statutes.

INTRODUCTION AND 
SUMMARY OF ARGUMENT

Section 1557 of the Patient Protection and 
Affordable Care Act (ACA), 42 U.S.C. § 18116(a), 
prohibits discrimination based on race, color, national 
origin, sex, age, and disability in the provision of 
certain health programs and activities. The Act’s core 
purpose is to advance equity and to reduce health 
disparities by protecting people who have been most 
vulnerable to discrimination in health care. To fulfill 
its mandate, the ACA incorporates and builds upon 
the antidiscrimination provisions of four other civil 
rights statutes, including Section 504.

This case asks whether Section 504 prohibits 
disparate impact discrimination against people with 
disabilities. Section 504 provides that no “otherwise 
qualified individual” shall “be excluded from the 
participation in, be denied the benefits of, or be 
subjected to discrimination” in a federally funded 
program or activity “solely by reason of her or his 
disability.” 29 U.S.C. § 794(a). That prohibition 
applies to any recipient of federal financial assistance, 
such as states, cities, schools, airports, hospitals,



3

parks, and transportation districts. Id. § 794(b). If 
Section 504 prohibits disparate impact discrimination, 
then the ACA does as well.

Nearly forty years ago, this Court assumed that 
Section 504 reaches some conduct that has an 
unjustifiable discriminatory impact on people with 
disabilities. Alexander v. Choate, 469 U.S. 287, 299 
(1985). It also set forth a “meaningful access” 
framework to determine when conduct that impacts 
persons with disabilities might be actionable. Id. at 
299—301. For decades since, courts have relied on the 
framework set forth in Choate to authorize disparate 
impact claims under Section 504. In the decision 
below, the Ninth Circuit correctly relied on this well- 
established framework to conclude that Section 504 
and the ACA prohibit disparate impact discrimination. 
Doe v. CVS Pharmacy, Inc., 982 F.3d 1204, 1210-12 
(9th Cir. 2020).

The Ninth Circuit’s decision should be affirmed for 
the reasons set out in Respondents’ brief. Amicus 
curiae writes separately to emphasize that several of 
Petitioners’ key textual arguments are inconsistent 
with this Court’s prior decisions authorizing disparate 
impact liability.

Petitioners contend that courts have recognized 
disparate impact claims only when specific effects- 
based phrasing is present in the statutory text. But 
this Court has found that a variety of words and 
phrases, including a statute’s simple prohibition 
against “discrimination,” can create disparate impact 
liability. When a statute uses flexible language like 
“discriminate” or “discrimination,” this Court has 
looked to statutory purpose and legislative history in 
determining whether the statute authorizes disparate 
impact claims.



4

Given that Section 504 contains the word 
“discrimination” and its statutory purpose and 
legislative history make clear that it is intended to 
prevent forms of discrimination that are intentional or 
unintentional, a decision by this Court affirming that 
the statute encompasses disparate impact claims 
would be consistent with prior decisions authorizing 
such claims in other antidiscrimination laws. In fact, 
disparate impact liability is necessary for Section 504 
to fulfill its broad statutory purpose and congressional 
mandate to empower people with disabilities and 
ensure their full participation in society.

Disparate impact liability under Section 504 and 
the ACA is particularly important given the 
intersection between race and disability. Black people 
are more likely than other groups to have a disability 
and associated adverse health outcomes. They are also 
more likely to encounter unique forms of 
discrimination and specific barriers to full 
participation in our society because of their race. 
Disparate impact liability under these statutes will 
ensure that all people living with disabilities today 
and in the future are empowered to reveal and reverse 
both intentional and inadvertent outcomes of policies 
and practices.

ARGUMENT
I. THE TEXT OF SECTION 504 IS 

CONSISTENT WITH DISPARATE IMPACT 
LIABILITY.

Under most antidiscrimination statutes, there are 
two general theories of liability available to plaintiffs: 
disparate treatment and disparate impact. In a 
disparate treatment case, a plaintiff must establish 
that the defendant had a discriminatory intent or 
motive, even if discriminatory intent was not the



5

primary purpose of the challenged action. See, e.g., 
Ricci v. DeStefano, 557 U.S. 557, 577 (2009) (citing 
Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986 
(1988)). In a disparate impact case, a plaintiff 
challenges practices that have a disproportionately 
adverse effect on a protected group and are otherwise 
unjustified by a legitimate rationale. Inclusive Cmtys., 
576 U.S. at 524—25 (citing Ricci, 557 U.S. at 577).

Disparate impact liability recognizes that facially 
neutral policies and practices, even if established for 
non-discriminatory purposes, “may in operation be 
functionally equivalent to intentional discrimination.” 
Watson, 487 U.S. at 987; see also United States v. City 
of Black Jack, 508 F.2d 1179, 1185 (8th Cir. 1974) 
(emphasizing the importance of disparate impact 
claims because “the arbitrary quality of 
thoughtlessness can be as disastrous and unfair to 
private rights and the public interest as the perversity 
of a willful scheme”).

In addition, disparate impact liability serves a 
critical function in rooting out covert forms of 
intentional bias, which can be difficult for plaintiffs to 
identify and prove. See, e.g'., Inclusive Cmtys., 576 U.S. 
at 540 (in addition to permitting plaintiffs to 
counteract implicit prejudice, disparate impact also 
serves a role in combating disguised animus that may 
escape easy classification). This is especially true 
given how easily discriminatory intent can be 
concealed. In International Brotherhood of Teamsters 
v. United States, this Court recognized that statistical 
evidence of disparate impact is often the “only 
available avenue of proof’ to uncover clandestine and 
covert discrimination. 431 U.S. 324, 339 n.20 (1977) 
(citation omitted). In that way, disparate impact can 
serve as a “doctrinal surrogate” to eliminate acts of



6

intentional discrimination that may be impossible for 
plaintiffs to prove. EEOC v. Joe’s Stone Crab, Inc., 220 
F.3d 1263, 1274 (11th Cir. 2000).

The disparate impact standard of liability was first 
approved in the employment discrimination context in 
Griggs, 401 U.S. 424, and has been authorized in a 
variety of statutes, applying to practices related to 
housing, lending, and education, among others. 
Contrary to the position taken by Petitioners in this 
case, courts do not apply a rigid, inflexible standard to 
determine whether a statute encompasses claims of 
disparate impact. Instead, this Court and others have 
endorsed disparate impact claims through a variety of 
textual phrases, including the term “discrimination.”

A. A Statute May Encompass Disparate 
Impact Claims in the Absence of 
Specific Phrasing.

To support their argument that Section 504 does 
not allow for disparate impact claims, Petitioners 
contend that courts authorize disparate impact 
liability only in narrow circumstances, when very 
specific effects-based language is present in the 
statutory text.2 Pet. Br. 37-40. This is incorrect.

2 Petitioners also contend that disparate impact liability is 
foreclosed by the text of Section 504 for other reasons, including 
the language “solely by reason of her or his disability,” Pet. Br. 
16-17, “by reason of,” id. at 16, and “otherwise qualified 
individual.” Id. at 21-24. But, as Petitioners acknowledge, “by 
reason o f’ is functionally identical to the phrase “because of.” Id. 
at 16. This Court has already rejected the argument that “because 
o f’ limits a statute to claims of intentional discrimination. See, 
e.g., Inclusive Cmtys., 576 U.S. at 535 (noting that Title VII and 
ADEA, like the FHA, use “because o f ’ phrasing but that this did 
not stop the Court from finding those statutes impose disparate 
impact liability). Petitioners’ other arguments with respect to



7

It is, of course, true that phrases that explicitly 
refer to the effects of an action on a protected class may 
support disparate impact liability.3 In fact, this Court 
has repeatedly found that antidiscrimination statutes 
must be construed to encompass disparate impact 
claims when their text refers to the consequences of 
actions. Inclusive Cmtys., 576 IJ.S. at 533; Smith v. 
City of Jackson, 544 U.S. 228, 235-36 (2005); Griggs, 
401 U.S. at 429-30. In the employment discrimination 
context, the statutory prohibition against practices 
that “otherwise adversely affect” an employee, found 
in Title VII and in the Age Discrimination in 
Employment Act of 1967 (ADEA), 29 U.S.C. § 623(a), 
permits claims of disparate impact because the phrase 
refers to the effects of the action on the employee 
rather than the motivation of the employer. See Smith, 
544 U.S. at 236 (ADEA); Griggs, 401 U.S. at 432. (Title 
VII). Similarly, the language of a provision of the FHA, 
42 U.S.C. § 3604(a) (Section 3604(a)), which prohibits 
actions that “otherwise make unavailable” or deny a 
dwelling to any person on the basis of race or other 
protected characteristics, encompasses disparate 
impact claims because the phrase refers to the 
consequences of an action rather than the actor’s 
intent. Inclusive Cmtys., 576 U.S. at 534.

But this Court has found the disparate impact 
theory embedded in a variety of statutory phrases and 
rejected, as recently as 2015, an attempt to suggest 
that the phrase “otherwise make unavailable” in

these phrases are addressed in Respondents’ Brief. Resp. Br. 10— 
22.

3 Respondents argue that the language of Section 504 constitutes 
effects-based phrasing. Resp. Br. 10-13. Amicus do not take a 
position on what constitutes “effects-based phrasing,” but contend 
that specific language is not required for this Court to find that a 
statute permits disparate impact claims and that the term 
“discrimination” can encompass disparate impact liability.



Section 3604(a) does not give rise to such a claim. In 
Inclusive Communities, the Texas Department of 
Housing and Community Affairs asserted that 
disparate impact claims were not cognizable under the 
FHA because the statute does not contain the phrase 
“otherwise adversely affect” like Title VII and the 
ADEA. Brief for the Petitioners at 19-20, Tex. Dep’t of 
Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 
576 U.S. 519 (2015) (No. 13-1371), 2014 WL 6466935. 
According to Texas, the phrase “otherwise make 
unavailable” in Section 3604(a) does not “bear any 
resemblance to the disparate-impact liability 
provisions of Title VII or the ADEA.” Id. at 25. That 
argument was soundly rejected by this Court. 
Inclusive Cmtys., 576 U.S. at 520, 534 (“Although the 
FHA does not reiterate Title VII’s exact language, 
Congress chose words that serve the same purpose and 
bear the same basic meaning but are consistent with 
the FHA’s structure and objectives.”). This 
demonstrates that precise or exact language is not 
required to find that a statute allows for disparate 
impact claims.

Indeed, as described further below, this Court and 
others have recognized statutory provisions as 
encompassing disparate impact liability in the absence 
of phrases like “otherwise make unavailable” and 
“otherwise adversely affect,” including when they 
contain the word “discrimination” and other indicia of 
broad application, like Section 504 and the ACA.

B. Statutory Text Referring to 
“Discrimination” Can Give Rise to 
Disparate Impact Claims.

Petitioners argue that the term “discrimination” in 
a statute cannot support a finding that the law 
encompasses disparate impact claims. Pet. Br. 15. Just 
the opposite is true: the terms “discriminate” or



“discrimination,” found in a variety of statutes— 
including Section 504 and the ACA—have been 
endorsed by this Court and others as authorizing 
claims of discriminatory impact when supported by 
other sources of congressional intent.

As this Court has repeatedly recognized, the terms 
“discriminate” and “discrimination” are flexible, 
oftentimes ambiguous, and may be interpreted in 
various ways depending on the context. See Guardians 
Ass’n v. Civ. Serv. Comm’n of New York, 463 U.S. 582, 
592 (1983) (noting that the word “discrimination” is 
“inherently” ambiguous); Regents of TJniv. of Cal. v. 
Bakke, 438 U.S. 265, 284 (1978) (“The concept of 
‘discrimination’ . . .  is susceptible of varying 
interpretations.”); see also CSX Transp., Inc. v. Ala. 
Dep’t of Revenue, 562 U.S. 277, 298 (2011) (Thomas, J., 
dissenting) (“‘Discriminates,’ standing alone, is a 
flexible word.”). In CSX Transportation, Inc., where 
the majority applied the dictionary definition of the 
term “discriminate,” Justice Thomas noted that 
“[e]ven though ‘discriminate’ has a general legal 
meaning relating to differential treatment, its precise 
contours still depend on its context.” 562 U.S. at 298.

This Court’s recent ruling in Inclusive 
Communities regarding disparate impact liability 
under the FHA is instructive here. At issue in that 
case was Texas’s allocation of low-income housing tax 
credits, which the plaintiff organization alleged had a 
disparate impact on Black residents in violation of 
Section 3604(a) and another provision of the FHA, 42 
U.S.C. § 3605 (Section 3605). Inclusive Cmtys., 576 
U.S. at 533-34. As discussed, this Court found the 
“otherwise make unavailable” language of Section 
3604(a) required the Court to recognize impact claims 
under that provision because the phrase refers to the 
consequences of actions, and allowing such claims is



consistent with the FHA’s statutory purpose and 
history. Id. at 534, 539.

But this Court’s analysis did not stop there. It also 
found that disparate impact claims are permitted 
under Section 3605, which prohibits discrimination in 
real estate-related transactions, because of the 
provision’s inclusion of the word “discriminate,” noting 
“ [t] he Court has construed statutory language similar 
to [Section 3605] to include disparate-impact 
liability.”4 Id. at 534 (citing Bd. of Educ. of City Sch. 
Dist. of New York v. Harris, 444 U.S. 130, 140—41 
(1979)).

In Harris, this Court considered the ineligibility 
provisions of the Emergency School Aid Act (ESAA), 
20 U.S.C. § 1601, et seq. Pursuant to the statute, an 
educational agency is deemed ineligible for federal 
financial assistance if the agency has implemented a

10

4 Disparate impact claims have also been authorized in other 
statutory provisions that contain the word “discriminate,” such as 
42 U.S.C. § 3604(b), a provision of the FHA that prohibits 
discrimination in the provision of services or facilities related to 
a dwelling, among other things. See, e.g., Graoch Assocs. No. 33, 
L.P. v. Louisville/ Jefferson Cnty. Metro Hum. Reis. Comm’n, 508 
F.3d 366, 371-73 (6th Cir. 2007); see also Implementation of the 
Fair Housing Act’s Discriminatory Effects Standard, 78 Fed. Reg. 
11460, 11466 (Feb. 15, 2013) (guidance from the United States 
Department of Housing and Urban Development noting that the 
word “discriminate” is a term that may encompass actions that 
have a discriminatory effect, and that the FHA’s provisions using 
the term must be interpreted to authorize disparate impact 
claims). Similarly, the Equal Credit Opportunity Act (ECOA), 15 
U.S.C. § 1691 et seq., which prohibits credit discrimination and 
contains the word “discriminate,” has been held by courts and 
interpreted by regulatory agencies to authorize disparate impact 
claims. See, e.g., Miller v. Am. Express Co., 688 F.2d 1235, 1237— 
39 (9th Cir. 1982); see also Consumer Fin. Prot. Bureau, 
Comment 6(a)-2 to Regulation B, 12 C.F.R. Part 1002 
(interpreting ECOA to allow for disparate impact claims).



11
practice that “results in the disproportionate demotion 
or dismissal of . . . personnel from minority groups,” or 
“otherwise engage [s] in discrimination . . .  in the 
hiring, promotion, or assignment of employees.” Id. at 
§ 1605(d)(1)(B). The Court noted that the first prong of 
the statutory provision clearly authorized impact 
claims, but because the underlying issue in the case 
involved a challenge to employee assignment, it was 
required to determine if the second prong did as well. 
Harris, 444 U.S. at 138-39. The Court concluded that 
the wording of the second prong (containing the word 
“discrimination” without elaboration) was ambiguous, 
requiring it “to look closely at the structure and 
context of the statute and to review its legislative 
history.” Id. at 140. After examining these sources of 
congressional intent, id. at 140-50, the Court was 
“impelled” to a conclusion that disparate impact claims 
are authorized under ESAA’s ineligibility provision 
prohibiting “discrimination.” Id. at 140-41.

Petitioners ignore this precedent in asserting that 
only specific phrases such as “otherwise adversely 
affect” authorize disparate impact claims and that the 
word “discrimination” presumptively forecloses such 
claims. Pet. Br. 15, 37—40. In fact, Petitioners cite 
ESAA and Harris in their brief, but only the first prong 
of the ineligibility provision, omitting any mention of 
the second prong, whose general prohibition on 
“discrimination” the Court found also authorized 
claims of disparate impact. Id. at 39.

As demonstrated by Harris and Inclusive 
Communities, this Court has not required specific 
statutory phrases to find that antidiscrimination laws 
allow for disparate impact liability and, when 
necessary, has analyzed factors like purpose and 
history to determine whether impact claims are 
permissible under the law. Because Section 504 and



12

the ACA contain the word “discrimination,” which can 
authorize disparate impact claims depending on the 
context, it is necessary to examine additional sources 
of congressional intent related to Section 504 to 
determine whether plaintiffs may bring disparate 
impact discrimination claims under these statutes.
II. DISPARATE IMPACT LIABILITY UNDER 

SECTION 504 IS SUPPORTED BY ITS 
PURPOSE AND HISTORY.

Petitioners discount the relevance of additional 
sources of congressional intent—such as purpose and 
history—that bear on whether Section 504 permits 
disparate impact liability. Pet. Br. 24. But this Court’s 
precedent reflects the importance of considering those 
sources in understanding Congress’s intent behind 
broadly stated antidiscrimination statutes.

For example, this Court found the FHA’s statutory 
purpose in eradicating housing discrimination was 
strong support for its holding in Inclusive 
Communities that disparate impact claims are 
authorized under the statute. 576 U.S. at 539. 
Similarly, Title VII and the ADEA share the objective 
of achieving equality of employment opportunities, 
which was key to this Court’s decisions in Griggs and 
Smith that these statutes allow for impact claims. 
Smith, 544 U.S. at 233, 235 (acknowledging that its 
opinion in Griggs was based primarily on an analysis 
of the purposes of Title VII); Griggs, 401 U.S. at 429- 
30.

Legislative history is also relevant. In this Court’s 
respective decisions finding that the FHA, ESAA, Title 
VII, and ADEA prohibit disparate impact 
discrimination, the history of the relevant statute’s 
enactment was discussed at length and found to 
support a reading that the law encompasses claims of



13

unjustified disparate impact. See, e.g., Inclusive 
Cmtys., 576 U.S. at 528-30 (discussing the historical 
underpinnings that led to the passage of the FHA); 
Harris, 444 U.S. at 141-46 (discussing at length the 
relevant legislative history of ESAA that supported 
the Court’s holding that the statute permitted impact 
claims); Smith, 544 U.S. at 232-33 (providing the 
relevant legislative history of the ADEA related to 
discriminatory impacts on older workers); Griggs, 401 
U.S. at 434-36 (detailing the relevant legislative 
history of Title VII).

Because the term “discrimination” is ambiguous, 
this Court should examine additional sources of 
congressional intent in determining whether disparate 
impact claims are permissible under Section 504. As 
described below, both the purpose and history of 
Section 504 fully support a reading that disparate 
impact liability is authorized under the statute.

A. Disparate Impact Claims Are Necessary 
to Achieve Section 504’s Statutory 
Purpose of Empowering People with 
Disabilities to Independently 
Participate in and Contribute to 
Society.

The Rehabilitation Act is intended “to empower 
individuals with disabilities to maximize employment, 
economic self-sufficiency, independence, and inclusion 
and integration into society.” 29 U.S.C. § 701(b)(1). 
The purpose of Section 504, as set forth in the text of 
the statute, is thus to empower people with disabilities 
to fully participate in programs receiving federal 
financial assistance, and to ensure that their 
disabilities do not inhibit their ability to benefit from 
such programs. See Choate, 469 U.S. at 304. Disparate 
impact claims under Section 504 are necessary to 
achieve this broad statutory purpose.



14

Fulfilling Section 504’s purpose requires that 
people with disabilities can challenge unjustified 
actions that impact their ability to live independent 
lives, regardless of evidence of discriminatory intent. 
For example, in American Council for the Blind v. 
Paulson, the D.C. Circuit considered a challenge to the 
paper currency issued by the United States Treasury, 
which was alleged to be inadequate for the visually 
impaired. 525 F.3d 1256, 1261 (D.C. Cir. 2008). 
Plaintiffs did not allege that the Treasury had 
intentionally discriminated against them in designing 
the currency, but rather that the current format of the 
banknotes prevented them from determining the 
denomination, impeding their ability to use paper 
currency without assistance, “an essential ingredient 
of independent living.” Id. In finding that plaintiffs 
had established a Section 504 disparate impact 
violation, the court emphasized the “centrality” of the 
Rehabilitation Act in empowering people with 
disabilities to engage in economic activity and noted 
the various ways that the inability to use paper 
currency could impact their daily lives, including 
preventing them from hiring a taxi or buying a cup of 
coffee. Id. at 1269. Persons with disabilities are 
regularly subject to these types of oversights that 
impede their full participation in the many programs 
and benefits afforded through our society. Allowing 
them to bring disparate impact claims under Section 
504 is essential to fulfill the law’s statutory purpose in 
empowering people with disabilities and promoting 
full inclusion in our society.

As recognized by disability rights law professor 
Mark C. Weber, allowing plaintiffs to bring disparate 
impact disability discrimination claims “correspond[s] 
to society’s moral sense; it also takes into account the 
troublesome reality of proving intentional



15

discrimination.” Mark C. Weber, Accidentally on 
Purpose: Intent in Disability Discrimination Law, 56 
B.C.L. Rev. 1417, 1431 (2015). As in other contexts, by 
focusing on the effects of mistreatment, allowing for 
disability disparate impact claims eliminates the 
reliance on “unprovable acts of intentional 
discrimination hidden innocuously behind facially- 
neutral policies or practices.” Joe’s Stone Crab, Inc., 
220 F.3d at 1274. Disparate impact liability thus 
ensures that people with disabilities do not bear the 
burden of delineating between consequential 
oversights and intentional abuses when both result in 
the same need for remedy to achieve equity.

B. The History of Section 504 
Demonstrates that Congress Intended 
the Statute to Encompass Disparate 
Impact Liability,

A finding that Section 504 encompasses disparate 
impact claims is also consistent with the statute’s 
legislative history.

In enacting the Rehabilitation Act, Congress 
expressly found that “disability is a natural part of the 
human experience” and “in no way diminishes the 
right of individuals” to live independently, enjoy self- 
determination, make choices, contribute to society, 
pursue meaningful careers, and enjoy full inclusion 
and integration in the economic, political, social, 
cultural, and educational mainstream of American 
society. 29 U.S.C. § 701(a)(3). As this Court has 
recognized, Congress believed that discrimination 
against persons with disabilities was most often the 
product of “thoughtlessness and indifference” rather 
than “invidious animus.” Choate, 469 U.S. at 295. The 
architects of Section 504 and prior bills repeatedly 
emphasized that antidiscrimination legislation in the 
disability context was intended to address the “societal



16

neglect” of persons with disabilities who had been 
subject to "oversights.” Id. at 295-96 (citing, e.g., 119 
Cong. Rec. 5880, 5883 (1973) (Senator Cranston 
describing Section 504 as a response to ‘ previous 
societal neglect”); 118 Cong. Rec. 526 (1972)
(statement of Section 504 cosponsor Senator Percy, 
describing the legislation leading to the Rehabilitation 
Act as a national commitment to eliminate the “glaring 
neglect” of persons with disabilities); 117 Cong. Rec. 
45974 (1971) (statement by Representative Vanik in 
introducing the predecessor to Section 504, noting that 
discrimination against persons with disabilities was 
one of the country’s “shameful oversights”)). As 
Senator Humphrey noted in 1972, legislation 
addressing disability discrimination was intended to 
signal that “we can no longer tolerate the invisibility 
of [people with disabilities] in America . . .” Id. at 296 
(citing 118 Cong. Rec. 525-526 (1972)). These 
statements primarily refer to the discriminatory 
effects of facially neutral policies rather than focusing 
on invidious intent, making clear that Congress 
recognized that the statute addressing disability 
discrimination would permit claims of disparate 
impact.

Accordingly, when promulgating Section 504, 
Congress specifically sought to address systems and 
structures that can have exclusionary effects on 
persons with disabilities absent any animus. For 
example, the statute was intended to apply to 
architectural barriers, Choate, 469 U.S. at 297 (citing 
S. Rep. No. 93-318, at 4 (1973)), which this Court 
described as “clearly” not erected with discriminatory 
intent. Id. Congress also made clear that Section 504 
should apply when persons with disabilities faced 
barriers to public transportation, rehabilitation 
services, education, and employment opportunities.



17

Id. (citing 118 Cong. Rec. 3320 (1972)). If Section 504 
did not encompass disparate impact liability, then it 
would not reach “much of the conduct Congress sought 
to alter.” Id. at 296-97. The history of Section 504 
provides ample support for a finding that it 
encompasses disparate impact liability.
III. DISPARATE IMPACT LIABILITY IS 

ESPECIALLY NECESSARY TO PROTECT 
PEOPLE FROM INTERSECTIONAL 
DISCRIMINATION BASED ON
DISABILITY AND RACE.

Disparate impact liability is a crucial tool for 
protecting the millions of people with disabilities from 
the overt and covert discrimination that may impact 
their ability to fully participate in society. One quarter 
of the adult population in the United States lives with 
a disability.5 But rates of disability vary across racial 
demographics. Indeed, the percentage of Black adults 
with disabilities exceeds the rate among white adults 
by roughly five percent.6

The disproportionate share of disabilities among 
Black people is consistent with this country’s legacy of 
racial inequality. Racial segregation has contributed

5 See Disability Impacts All of Us, Ctrs. for Disease Control & 
Prevention,
https://www.cdc.gov/ncbddd/disabilityandhealth/infographic- 
disability-impacts-all.html (last visited Oct. 18, 2021).
6 Adults with Disabilities: Ethnicity and Race, Ctrs. for Disease
Control & Prevention (Sept. 16, 2020),
https://www.cdc.gov/ncbddd/disabilityandhealth/materials/infogr 
aphic-disabilities-ethnicity-race.html. The percentage of 
American Indians with disabilities also exceeds the rate among 
white adults with disabilities: three in ten American
Indian/Alaska Native adults have a disability, whereas one in five 
white adults have a disability. Id. A large share of the 
Hispanic/Latinx population, one in six, also have disabilities. Id.

https://www.cdc.gov/ncbddd/disabilityandhealth/infographic-disability-impacts-all.html
https://www.cdc.gov/ncbddd/disabilityandhealth/infographic-disability-impacts-all.html
https://www.cdc.gov/ncbddd/disabilityandhealth/materials/infogr


18

to toxic exposure and unhealthy living environments 
correlated to adverse health outcomes, including high 
rates of asthma, lead poisoning, and other disabling 
conditions disproportionately experienced within 
Black communities.7

“[Djisparities experienced by adults with 
disabilities may be compounded by disparities 
associated with race, ethnicity, and socioeconomic 
factors.”8 Inequity in access to resources, including 
healthcare, further amplifies the instance and 
persistence of disabilities among Black people. While 
Black people are 1.5 times more likely to have asthma, 
they are five times more likely to rely on emergency 
department treatment for asthma care.9 Indeed, in 
addition to institutional barriers,10 “conscious and

7 Catherine Jampel, Intersections of Disability Justice, Racial 
Justice and Environmental Justice 1, 9, Env’t Socio. (Jan. 2018), 
(citing examples of air pollution, toxic waste, and lead paint 
exposure in predominantly Black neighborhoods from San 
Francisco to Baltimore, and noting that disability can result as a 
“product of the intersections of historical legacies of racism and 
classism, and the system of ableism can contribute to further 
harm . . .”).
8 Elizabeth Courtney-Long et al., Socioeconomic Factors at the 
Intersection of Race and Ethnicity Influencing Health Risks for 
People with Disabilities, J. Racial Ethnic Health Disparities (Apr. 
2017), https://pubmed.ncbi.nlm.nih.gov/27059052/.
9 Asthma Disparities in America, Asthma & Allergy Found, of 
Am., aafa.org/asthmadisparities (last visited Oct. 25, 2021).
10 See, e.g., David Williams & Tony Rucker, Understanding and
Addressing Racial Disparities in Health Care 75, Health Care 
Fin. Rev. (Summer 2000),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4194634/. 
(“[institutional discrimination is often at least as important as 
individual discrimination. In the case of racial disparities in 
medical care, other potential explanations include the geographic 
maldistribution of medical resources, racial differences in patient 
preferences, pathophysiology, economic status, insurance

https://pubmed.ncbi.nlm.nih.gov/27059052/
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4194634/


19

unconscious biases and stereotypes among health care 
providers and public health practitioners about 
specific racial and ethnic groups, and people with 
disabilities, contribute to observable differences in the 
quality of health care and adverse health outcomes 
among individuals within those groups.”11 Not only are 
Black people more likely to have a disability and 
associated adverse health outcomes, but they are also 
likely to encounter unique forms of discrimination and 
specific barriers to full participation in our society. It 
is widely acknowledged that people of color with 
disabilities may experience complex forms of 
discrimination distinct from those experienced by 
people of color and, separately, people with 
disabilities.12 Such discrimination causes harsher 
treatment of, and increased punishment for, people of 
color with disabilities. For example, in 2019, the 
United States Commission on Civil Rights found that 
students of color with disabilities are more often 
removed from classrooms for minor infractions than 
their white counterparts.13

coverage, as well as in trust, knowledge, and familiarity with 
medical procedures.”).
11 Silvia Yee et ah, Compounded Disparities: Health Equity at the 
Intersection of Disability, Race, and Ethnicity (2018), 
https://dredf.org/wp-content/uploads/2018/01/Compounded- 
Disparities-Intersection-of-Disabilities-Race-and-Ethnicity.pdf.
12 See Alice Abrokwa, “When They Enter, We All Enter”: Opening 
the Door to Intersectional Discrimination Claims Based on Race 
and Disability, 24 Mich. J. Race & L. 15, 17-18 (2018); see also 
id. at 20 (“People who exist at the intersection of race and 
disability experience a multi-dimensional form of discrimination 
. . .”).
13 Carolyn Thompson, Civil Rights Panel: Disabled Students of
Color Punished More, AP News (July 23, 2019),
https://apnews.com/article/discrimination-education-politics- 
united-states-school-discipline- 
aald0514e886442382d09a086f923359.

https://dredf.org/wp-content/uploads/2018/01/Compounded-Disparities-Intersection-of-Disabilities-Race-and-Ethnicity.pdf
https://dredf.org/wp-content/uploads/2018/01/Compounded-Disparities-Intersection-of-Disabilities-Race-and-Ethnicity.pdf
https://apnews.com/article/discrimination-education-politics-united-states-school-discipline-aald0514e886442382d09a086f923359
https://apnews.com/article/discrimination-education-politics-united-states-school-discipline-aald0514e886442382d09a086f923359
https://apnews.com/article/discrimination-education-politics-united-states-school-discipline-aald0514e886442382d09a086f923359


20

Racial disparities in healthcare and disability 
distribution have been persistent, from the racially 
disparate rates at which people contract and are 
diagnosed with HIV14 to the racially disparate effect of 
the COVID-19 pandemic on racial minorities in part 
because of their disabilities.15 These disparities will 
continue to exist. In decades to come, the community 
of people in the United States with disabilities will 
become more diverse in racial and ethnic background, 
lived experience, and diagnosis. By 2040, the U.S. 
population will near “majority-minority” status.16 
People living with disabilities today and in the future 
must be empowered to reveal and reverse both 
intentional and inadvertent outcomes of policies and 
practices that impede their full access to society. That 
is exactly what disparate impact liability was designed 
to do: root out and remedy facially neutral laws or 
policies that have a discriminatory effect on protected 
classes. Disparate impact liability under Section 504 
and the ACA is thus essential to the promise of an 
equitable society for all people, including persons with 
disabilities.

14 See Health Disparities in HIV/AID, Viral Hepatitis, STDs, and 
TB, Ctrs. for Disease Control & Prevention (Sept. 14, 2020), 
https://www.cdc.gov/nchhstp/healthdisparities/africanamericans. 
html (showing that in 2018, Black people “accounted for 42% of 
the 37,968 new HIV diagnoses in the United States and 
dependent areas”).
15 See COVID-19, Health Equity Considerations and Racial and
Ethnic Minority Groups, Ctrs. for Disease Control & Prevention 
(Apr. 19, 2021), https://www.cdc.gov/coronavirus/2019-
ncov/community/health-equity/race-ethnicity.html.
16 See William Frey, The US Will Become ‘Minority White’ in 2045,
Census Projects, Brookings (Mar. 14, 2018),
https://www.brookings.edu/blog/the-avenue/2018/03/14/the-us- 
will-become-minority-white-in-2045-census-projects/.

https://www.cdc.gov/nchhstp/healthdisparities/africanamericans
https://www.cdc.gov/coronavirus/2019-
https://www.brookings.edu/blog/the-avenue/2018/03/14/the-us-will-become-minority-white-in-2045-census-projects/
https://www.brookings.edu/blog/the-avenue/2018/03/14/the-us-will-become-minority-white-in-2045-census-projects/


21

CONCLUSION
For the foregoing reasons, the Court should affirm 

the decision of the Ninth Circuit.
Respectfully submitted,

S h e r r il y n  A . I f il l  
Director-Counsel 

J a n a i  S. N e l s o n  
S a m u e l  S p it a l  
V ic t o r ia  W e n g e r  
N A A C P  L e g a l  D e f e n s e  &  
E d u c a t io n a l  F u n d , I n c . 
40  R e cto r  S tre e t , 5 th  F lo o r  
N e w  Y o rk , N Y  1 0 0 0 6

C o t y  M o n t a g *
M a h o g a n e  D . R e e d  
N A A C P  L e g a l  D e f e n s e  &  
E d u c a t io n a l  F u n d , I n c . 
7 00  14th  S tre e t  N W  
S u ite  6 00
W a s h in g to n , D C  2 0 0 0 5
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c m o n ta g @ n a a cp ld f .o r g

O cto b e r  29, 20 2 1 * Counsel of Record

mailto:cmontag@naacpldf.org