Terry Eastland has an excellent editorial in the current issue of The Weekly Standard on the case argued before the Supreme Court a couple of weeks ago regarding “disparate impact” and the Fair Housing Act. He discusses, among other things, the attention given at argument to three scattered provisions in the 1988 amendments to the act that the Obama administration argues make sense only if the rest of the act bans disparate impact.
I discussed this argument earlier, and made the point that all three provisions involve instances where non-protected characteristics were close enough to protected characteristics that Congress wanted to spell out what was and wasn’t protected a bit more — particularly since Congress was adding “familial status” and “handicap” to the statute at the same time. That is, these provisions were added to clarify in three tricky situations what was and wasn’t disparate treatment — not to ban (only) certain kinds of disparate-impact lawsuits.
Maybe it would help to consider the three hypothetical trialogues below, each among the plaintiff’s lawyer, the defendant’s lawyer, and a liberal judge who might not get the result Congress intended even if he is not using the disparate-impact approach.
Plaintiff’s lawyer: Your honor, my client is a married couple that was happily living in an apartment complex run by the defendant. Then they were blessed with the birth of their first child. But their joy turned to despair when the defendant cruelly informed them that they were going to be evicted because of that birth. This, your honor, is clearly discrimination against families with children.
Defendant’s lawyer: Not true, your honor. The rules of the defendant’s apartment complex clearly state that there is an occupancy limit of two people per apartment.
Plaintiff’s lawyer: But that’s the same thing! Anytime there is a child with parents there is going to be more than two people!
Liberal judge: I agree that this is a distinction without a difference. You lose, landlord.
Plaintiff’s lawyer: Your honor, my client was denied an apartment because he has a history of drug addiction, and discrimination on that basis is considered disability discrimination by the federal government.
Defendant’s lawyer: It’s true, your honor, that the federal government considers a history of drug addiction to be a prohibited basis of discrimination. But the problem here is that the plaintiff also had a history of drug-related offenses.
Liberal judge: But wait a minute, you’re saying you concede that you can’t discriminate against someone because they used to be addicted to illegal drugs, but you think it’s okay to discriminate against them because once they possessed drugs illegally? That seems to me to be a distinction without a difference. Of course a drug addict is going to possess drugs!
Defendant’s lawyer: Well, your honor, perhaps so, but surely the fact that the individual here not only possessed drugs but also sold them should matter.
Liberal judge: So you’re saying that maybe it’s not okay to discriminate against former drug addicts, and maybe it’s not okay to discriminate against a junkie who has a record of illegal drug possession, but if he sold some drugs to fellow junkie at some point then it’s okay to discriminate against him? That still seems like an awfully fine line, given the way that I understand a lot of junkies live, and I don’t see anything to support such line-drawing in the statute. You lose, landlord.
Plaintiff’s lawyer: Your honor, my client last year was thinking of selling his “swinging singles” property, and had it appraised at $100,000. For a variety of reasons, he decided not to put the property on the market at that time. Then, as a result of the new provisions of the Fair Housing Act, he had to put in some wheelchair ramps and also had to start renting to families with children. This was costly in terms of outlay, and also resulted in many of our swinging tenants leaving; still, my client is an upstanding citizen and was happy to follow the law. But when he had the property appraised after this, he was told it was now worth only $90,000! Clearly he is being penalized for no reason except he was complying with the new federal law, and that itself violates the new law.
Defendant’s lawyer: Your honor, my client bases his appraisals of property on simply what price it will get on the open market. It may be true that property with wheelchair ramps and rowdy children is less attractive, but that’s hardly his fault.
Liberal judge: I agree with the plaintiff’s lawyer. It seems to me that if you penalize someone for doing what’s required by federal law, then you yourself are violating federal law. You lose, real-estate appraiser.