Having time to reflect on the U.S. Supreme Court’s recent rulings on gay marriage and the Housing Discrimination Act, it is obvious these two enormously important milestones are united by more than a shared timeline. They are bound together by a shared purpose to dismantle discrimination in all its forms in this country. But is that lofty intent even feasible? As Judge Richard Posner opined recently, anyway you spin it, “prohibiting gay marriage is discrimination.” Similarly, disparate impact — facially neutral policies that create unequal outcomes — is still discrimination. By affirming the right of certain protected classes of people to challenge housing policies that have different impacts, the …
Having time to reflect on the U.S. Supreme Court’s recent rulings on gay marriage and the Housing Discrimination Act, it is obvious these two enormously important milestones are united by more than a shared timeline. They are bound together by a shared purpose to dismantle discrimination in all its forms in this country.
But is that lofty intent even feasible?
As Judge Richard Posner opined recently, anyway you spin it, “prohibiting gay marriage is discrimination.”
Similarly, disparate impact — facially neutral policies that create unequal outcomes — is still discrimination. By affirming the right of certain protected classes of people to challenge housing policies that have different impacts, the court strengthened protections for all people.
While the establishment of gay marriage continues to receive widespread media attention and even a rainbow light show at The White House, the housing discrimination case was just as much a win for LGBT people as it was for minorities and women.
A 2013 study, by the U.S. Department of Housing and Urban Development found that landlords responded less favorably to same-sex couples than opposite-sex couples more than 15 percent of the time and in many places in the South, there aren’t laws to protect LGBT people from housing discrimination.
Discrimination in it’s most violent manifestation results in the type of hatred we witnessed recently in Charleston, S.C. But more often than not, contemporary forms of discrimination are intangible.
Structural discrimination is often embedded in practices like racial redlining of mortgages or the long-standing gender wage gap.
Many of our most pressing social issues arise under a disparate impact theory. Take for instance the disparities found in education, the criminal justice system and disparate rates of poverty that plague our country.
In the words of Justice Anthony Kennedy, disparate impact refers to the “consequences of an action rather than the actor’s intent.”
Under a disparate impact theory, the focus can shift away from proving intentional discrimination and toward effective remedies.
Disparate impact claims are not new. But the courts have struggled with the limits of its reach. For example, in 2001, Martha Sandoval sued the Alabama Department of Public Safety for its policy of giving drivers license tests in English only. The Supreme Court ruled in Alexander v. Sandoval that regulation 602 under Title VI of the Civil Rights Act of 1964 did not include a private right of action to allow private lawsuits based on evidence of disparate impact.
While courts have limited the legal reach of disparate impact claims under anti-discrimination statutes, the United States also has certain obligations to look at disparate impact under the Convention on the Elimination of Racial Discrimination. As party to the treaty, which prohibits racial discrimination in all its forms, including indirect discrimination, the U.S. reports on its progress in this area to the United Nations every few years.
Understandably, the claim of discrimination is difficult to prove, but allowing policies that exacerbate discrimination to continue is unacceptable. This court’s ruling in favor of disparate impact is an opportunity to examine proactive measures such as equity impact audits, designed to act like their predecessor, the environmental impact statement.
In early 2000, as the Director of the Human Rights Project in New York City, I was involved in leading a coalition of organizations to introduce groundbreaking legislation that would have required the city to engage in preventative measures to identify inequities and discriminatory conduct in the operations of city government.
While that particular piece of legislation was not enacted, the initiative is part of a larger movement by advocates to address widespread disparities.
Yes, there are valid concerns regarding an overly-broad application of disparate impact claims in the courts. But the majority was careful to ensure that disparate impact cases will continue to be stringently vetted by lower courts and that legitimate business justifications will be protected.
It was a great week for progress and some say the week that will define the Obama presidency. But discrimination and disparate impact remain critical issues. We can celebrate the rulings of course, but need to continue to address persistent disparities.
Ramona Ortega is the Founder of Mi Dinero Mi Futuro, a financial tech startup aimed at Latino Millennials. She is an attorney and VP of Strategic Partnerships with the Latino Startup Alliance and a fellow in The OpEd Project’s Public Voices Greenhouse t the Center for Global Policy Solutions.
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