In August 2019, Empower Missouri’s Executive Director, Jeanette Mott Oxford, offered testimony in a special hearing on Criminal Justice. “I think sometimes we wish we had a magic mirror, and we could hold it up to people and it would say, ‘I see racism in you. I see racism in you. No racism in you.’ The truth is, that mirror does not exist.” In the absence of magical powers, we look to the impacts of policy and actions to judge how systemic oppression can affect societal minorities (whether by ethnicity, skin color, disability status, religion or other human characteristics).
The Civil Rights Act of 1964 began to provide a framework for this using a tool called the “disparate impact rule”. For example, an employer could use a height test that substantially limited the number of women, people with disabilities, or Asian Americans who may qualify for a job. Potential employees could sue that employer, claiming the policy was racist, sexist, and ableist under ‘disparate impact.’ While the employer may lay out some supposed reason a height test was imperative to the hiring process, the policy still excluded sections of people from employment, and thus it could be ruled discriminatory.
This rule has had a huge impact on housing in America. We live in the legacy of state and federal policy that was purposefully designed to exclude People of Color from programs that boosted home ownership and segregated entire communities. Banks were supported by that policy to target low-interest, secured loans to white neighborhoods and “red-line” others, calling these (neighborhoods with high concentrations of Black and Brown families) “high risk.”
In the more than 50 years since the Civil Rights Act was first established, landlords, employers, and lenders have learned that they cannot outwardly discriminate on the basis of sex, race, or disability. Disparate Impact regulations have been critical in dismantling policies that don’t technically violate the Civil Rights Act, but are still discriminatory. This is why a 2013 rule established a three-step process to judge impact over intention. Even if a plaintiff could not prove a policy was implemented due to racism, it could be ruled racist if policy had discriminatory results.
A new proposal by Trump would weaken these regulations into near non-existence. It changes the burden of proof from the defendant to the plaintiff; the plaintiff must prove that the intention of a practice or policy is discriminatory, rather than the defendant having to prove that it is not. It also eliminates the three-step process and replaces it with a vague and difficult to navigate five-step process which favors lenders and landlords. Instead of weighing impact over intention, these proposed regulations would look exclusively at intention.
Today, landlords may use computer software to automatically exclude certain tenants from housing by ruling out candidates with things like certain credit scores or previous addresses. Lenders may target certain buyers similarly. Under these proposed changes, simply using a third-party software like the above would shield these landlords and lenders from the disparate impact rule.
Discrimination is insidious, and proving it without that magic mirror is difficult. Empower Missouri will work against these proposed changes in the coming weeks. Right now, there is a 60-day comment period on the proposed rule change. HUD is required to read and respond to each submitted comment. We are asking our supporters to please use this tool to submit comments opposing this rule, and share this link with friends and followers.
This post originally appeared in our September Newsletter, which you can find here.
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