Embed Size (px)
DESCRIPTION
Citation preview
Defending an Important Tool for Equal Housing Opportunity: The Debate Over Disparate Impsct
Disparate Impact TheoryMichael D. MitchellApril 19, 2012
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.
Disparate Impact Theory
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
Why is Disparate Impact Theory Important?
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
Disparate Impact Theory
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
Areas in Which Disparate Impact Theory has Been Successfully Used
Disparate Impact Theory
• Restrictive minimum values• Restrictive loan amounts• Geographic restrictions• Property type restrictions• Credit overlays
Issues
Disparate Impact Theory
• Identify policy with disparate impact• Build a case that is:
• Sophisticated• Overwhelming• Solid
• Case must be supported with Data
Mapping makes it clear!
Anatomy of a Case:
Disparate Impact Theory
• 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
Anticipated Business Defenses
Disparate Impact Theory
• 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
Limits on Disparate Impact
Disparate Impact Theory
• Credit scoring• Access to credit• Servicing issues• Foreclosure issues
Issues to Be Addressed
Disparate Impact Theory
Theory under attack• Case law
• Magner v. Gallagher
Disparate Impact Theory is here to stay!
Theory being strengthened• New HUD regulation
Future of Disparate Impact
