Justice Kennedy's Big New Idea

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In a 2015 case, the Supreme Court held that plaintiffs could bring disparate impact claims under the Fair Housing Act (the "FHA"). In the majority opinion, Justice Kennedy relied heavily on the text and supporting case law interpreting Title VII of the Civil Rights Act ("Title VII") and the Age Discrimination in Employment Act (the "ADEA '). Without explicitly recognizing the powerful new idea he was advocating, Justice Kennedy's majority opinion radically reconceptualized federal employment discrimination jurisprudence. This new reading of Title VII and the ADEA changes both the theoretical framing of the discrimination statutes and greatly expands their scope.

Title VII and the ADEA have two main operative provisions. For the most part, courts have framed intentional discrimination claims through the first provision. Justice Kennedy instead views both the first and second provisions as relating to intentional discrimination. This Article is the first to explore the far-reaching implications of this new interpretation. More than fifty years after the passage of Title VII, it is as if we have found a completely new statutory provision. This Article shows how viewing the second provision as one that concerns intentional discrimination requires wholesale changes in the way that courts frame discrimination cases.