Michael Mitchell | Disparate Impact Theory
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This document discusses the disparate impact theory, which prohibits policies that disproportionately and adversely impact protected classes. It summarizes that the theory is important because it brings life to fair housing acts, addresses unintentional discrimination, and combats systemic discrimination. The theory has been upheld by courts, enforced by HUD, and used by the Department of Justice to address issues like redlining, reverse redlining, discrimination, lending discrimination, and holding Wall Street accountable. The document outlines how to build a case using disparate impact theory and addresses issues and limits around its use.
Michael Mitchell | Disparate Impact Theory
- 1. Defending an Important Tool for Equal Housing Opportunity: The Debate Over Disparate Impsct
- 2. Disparate Impact Theory Michael D. Mitchell April 19, 2012
- 3. Disparate Impact Theory What is the Disparate Impact Theory? Prohibits policies, practices & procedures that have a disproportionate, adverse and disparate impact on people because of their membership in a protected class.
- 4. Disparate Impact Theory Why is Disparate Impact Theory Important? Brings life to fair housing act Addresses unintentional acts of discrimination Way to address societal inequities Way to address big issues Way to combat systemic discrimination Similar affect to class action cases
- 5. Disparate Impact Theory Acceptance of the Disparate Impact Theory Upheld by courts Enforced by HUD Subject of new HUD proposed regulation Utilized by Department of Justice
- 6. Disparate Impact Theory Areas in Which Disparate Impact Theory has Been Successfully Used Combatting redlining Combatting Reverse redlining Combatting discrimination against African Americans, Latinos, people with disabilities Insurance cases Lending cases Holding Wall Street accountable Rating Agencies Servicers
- 7. Disparate Impact Theory Issues • Restrictive minimum values • Restrictive loan amounts • Geographic restrictions • Property type restrictions • Credit overlays
- 8. Disparate Impact Theory Anatomy of a Case: • Identify policy with disparate impact • Build a case that is: • Sophisticated • Overwhelming • Solid • Case must be supported with Data Mapping makes it clear!
- 9. Disparate Impact Theory Anticipated Business Defenses • What are the business justifications for the policy? • Are they legitimate? • Are there better ways to achieve their legitimate business interest? • Identify less onerous alternatives • Identify the win-win
- 10. Disparate Impact Theory Limits on Disparate Impact • In America, most policies have a disparate impact • We must avoid making bad case law • Theory to be used judiciously • Not a time for recklessness • Cases brought must be Reasonable • Test your case on your colleagues before you file
- 11. Disparate Impact Theory Issues to Be Addressed • Credit scoring • Access to credit • Servicing issues • Foreclosure issues
- 12. Disparate Impact Theory Future of Disparate Impact Theory under attack • Case law • Magner v. Gallagher Disparate Impact Theory is here to stay! Theory being strengthened • New HUD regulation