Have you ever heard the phrase “racism without racists?” Particularly in the United States, terms like “racism,” “racist,” and “discrimination” are deeply entwined with the concept of intent.
While intent does matter, we risk losing sight of the forest through the trees when our obsession with intent eclipses the reality of impact. Years of scientific advances in cognitive and behavioral neuroscience show that our subconscious is a better predictor of behavior than our conscious. These advances provide a scientific basis for the reality of “racism without racists,” and suggest we ought to focus on impact with the same if not stronger fervor than intent.
Despite this, the President Trump administration is attempting to gut an essential tool for examining the impact of discriminatory practices: the disparate impact tool under the Fair Housing Act.
Discrimination is defined as the unjust or prejudicial treatment of different categories of people or things. “Treatment” need not be intentional to be unjust. When people experience varying degrees of harm or privilege based upon a characteristic that bears no relationship to their value or worth, injustice occurs. There are situations where this matters more and less. We need not campaign for the rights of toddlers to ride rollercoasters and the like.
However, when it comes to fundamental rights and factors that have a profound impact on life outcomes, we are dealing with sacred human rights worthy of fierce protection. Housing is a prime example of one of these fundamental rights.
The rule that Trump’s Department of Housing and Urban Development (HUD) is attempting to advance would dramatically weaken “disparate impact” liability, a longstanding and effective tool for remedying disparities in rental practices, lending, property insurance, zoning and other activities that affect the availability of housing.
Under this theory, a policy or practice may constitute housing discrimination when it has a disparate impact on members of a protected group, regardless of whether there is an intent to discriminate. This type of liability creates a powerful and important incentive for industries to find the least discriminatory method for achieving their legitimate business needs.
In a landmark case decided in 2015, the United States Supreme Court directly addressed the complex relationship between injustice and intent in the context of fair housing. The court agreed that intent-based laws were an insufficient means of enforcing the full scope of protections contained in the Fair Housing Act (FHA).
In doing so, the court affirmed the FHA bans practices that have an unnecessary disparate impact on members of a protected group. By legitimizing disparate impact liability under the FHA, the Supreme Court took an important step toward redressing the segregation that still persists decades after the FHA was enacted.
The rule HUD is proposing runs contrary to principles of stare decisis and human rights. The key provisions of this proposed regulation grant immunity for certain practices, allow for profit to override discrimination, and exempt the entire insurance industry from liability. The proposed rule also discourages data collection and places a higher burden on victims of discrimination than is required in any other type of civil rights case.
If HUD succeeds in eviscerating the disparate impact protections granted by the Supreme Court in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., the direct and collateral consequences will be devastating.
In addition to the obvious problems that come from prioritizing profit over people, scaling back disparate impact liability refocuses the law on intent. This preoccupation with intent ignores the years of empirical evidence that shows intent is largely irrelevant to behavioral outcomes.
Not only is it nearly impossible to prove intentional discrimination under the law, but science has told us for years that attempting to do so is grossly misguided effort.
HUD is accepting public comments on this proposed rule until Oct. 18, so we must act now to tell our leaders why we desperately need disparate impact to survive as a legal tool and protection, both in the context of fair housing, and beyond.