DOCSLIB.ORG

Fair Lending Laws and Regulations

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Fair Lending Laws and Regulations IV. Fair Lending — Fair Lending Laws and Regulations NOTE: Further information regarding the technical Fair Lending Laws and Regulations requirements of fair lending are incorporated into the sections ECOA V 7.1 and FCRA VIII 6.1 of this manual. Introduction The Fair Housing Act (FHAct) prohibits discrimination in all This overview provides a basic and abbreviated discussion of aspects of “residential real-estate related transactions,” federal fair lending laws and regulations. It is adapted from including but not limited to: the Interagency Policy Statement on Fair Lending issued in March 1994. • Making loans to buy, build, repair, or improve a dwelling; Lending Discrimination Statutes and Regulations • Purchasing real estate loans; The Equal Credit Opportunity Act (ECOA) prohibits discrimination in any aspect of a credit transaction. It • Selling, brokering, or appraising residential real estate; or applies to any extension of credit, including extensions of • Selling or renting a dwelling. credit to small businesses, corporations, partnerships, and trusts. The FHAct prohibits discrimination based on: The ECOA prohibits discrimination based on: • Race or color; • Race or color; • National origin; • Religion; • Religion; • National origin; • Sex; • Sex; • Familial status (defined as children under the age of 18 living with a parent or legal custodian, pregnant women, • Marital status; and people securing custody of children under 18); or • Age (provided the applicant has the capacity to contract); • Handicap. • The applicant’s receipt of income derived from any The Department of Housing and Urban Development’s public assistance program; or (HUD) regulations implementing the FHAct are found at 24 • The applicant’s exercise, in good faith, of any right CFR Part 100. Because both the FHAct and the ECOA under the Consumer Credit Protection Act. apply to mortgage lending, lenders may not discriminate in mortgage lending based on any of the prohibited factors in The Consumer Financial Protection Bureau’s Regulation B, either list. found at 12 CFR part 1002, implements the ECOA. Regulation B describes lending acts and practices that are Under the ECOA, it is unlawful for a lender to discriminate specifically prohibited, permitted, or required. Official staff on a prohibited basis in any aspect of a credit transaction, interpretations of the regulation are found in Supplement I to and under both the ECOA and the FHAct, it is unlawful for a 12 CFR part 1002. lender to discriminate on a prohibited basis in a residential real-estate-related transaction. Under one or both of these The Dodd–Frank Wall Street Reform and Consumer laws, a lender may not, because of a prohibited factor: Protection Act of 2010 further amended the ECOA and covers: • Fail to provide information or services or provide different information or services regarding any aspect of • Data collection for loans to minority-owned and the lending process, including credit availability, women-owned businesses (awaiting final regulation); application procedures, or lending standards. • Legal action statute of limitations for ECOA • Discourage or selectively encourage applicants violations is extended to five years (effective July 21, 2010); with respect to inquiries about or applications for and credit. • A disclosure of the consumer’s ability to receive a • Refuse to extend credit or use different standards copy of any appraisal(s) and valuation(s) prepared in in determining whether to extend credit. connection with first-lien loans secured by a dwelling is to be provided to applicants within 3 business days of receiving the • Vary the terms of credit offered, including the application (effective January 18, 2014). amount, interest rate, duration, or type of loan. FDIC Consumer Compliance Examination Manual – March 2021 IV – 1.1 IV. Fair Lending — Fair Lending Laws and Regulations • Use different standards to evaluate collateral. expresses — but does not act on — a discriminatory preference: • Treat a borrower differently in servicing a loan or invoking default remedies. Example: A lending officer told a customer, “We do not like to make home mortgages to Native Americans, but the law • Use different standards for pooling or packaging a loan says we cannot discriminate and we have to comply with the in the secondary market. law.” This statement violated the FHAct’s prohibition on A lender may not express, orally or in writing, a statements expressing a discriminatory preference as well as preference based on prohibited factors or indicate that it Section 1002.4(b) of Regulation B, which prohibits will treat applicants differently on a prohibited basis. A discouraging applicants on a prohibited basis. violation may still exist even if a lender treated applicants Comparative Evidence of Disparate Treatment. Disparate equally. treatment occurs when a lender treats a credit applicant A lender may not discriminate on a prohibited basis because differently based on one of the prohibited bases. It does of the characteristics of not require any showing that the treatment was motivated by prejudice or a conscious intention to discriminate • An applicant, prospective applicant, or borrower. against a person beyond the difference in treatment itself. • A person associated with an applicant, prospective Disparate treatment may more likely occur in the treatment of applicant, or borrower (for example, a co-applicant, applicants who are neither clearly well-qualified nor clearly spouse, business partner, or live-in aide). unqualified. Discrimination may more readily affect applicants in this middle group for two reasons. First, if the applications • The present or prospective occupants of either the are “close cases,” there is more room and need for lender property to be financed or the characteristics of the discretion. Second, whether or not an applicant qualifies may neighborhood or other area where property to be financed depend on the level of assistance the lender provides the is located. applicant in completing an application. The lender may, for Finally, the FHAct requires lenders to make reasonable example, propose solutions to credit or other problems accommodations for a person with disabilities when such regarding an application, identify compensating factors, and accommodations are necessary to afford the person an equal provide encouragement to the applicant. Lenders are under no opportunity to apply for credit. obligation to provide such assistance, but to the extent that they do, the assistance must be provided in a nondiscriminatory Types of Lending Discrimination way. The courts have recognized three methods of proof of lending discrimination under the ECOA and the FHAct: Example: A non-minority couple applied for an automobile loan. The lender found adverse information in the couple’s • Overt evidence of disparate treatment; credit report. The lender discussed the credit report with them and determined that the adverse information, a • Comparative evidence of disparate treatment; and judgment against the couple, was incorrect because the • Evidence of disparate impact. judgment had been vacated. The non-minority couple was granted their loan. A minority couple applied for a similar Disparate Treatment loan with the same lender. Upon discovering adverse information in the minority couple’s credit report, the lender The existence of illegal disparate treatment may be established denied the loan application on the basis of the adverse either by statements revealing that a lender explicitly information without giving the couple an opportunity to considered prohibited factors (overt evidence) or by discuss the report. differences in treatment that are not fully explained by legitimate nondiscriminatory factors (comparative evidence). The foregoing is an example of disparate treatment of similarly situated applicants, apparently based on a Overt Evidence of Disparate Treatment. There is overt prohibited factor, in the amount of assistance and evidence of discrimination when a lender openly discriminates information the lender provided. on a prohibited basis. If a lender has apparently treated similar applicants Example: A lender offered a credit card with a limit of up to differently on the basis of a prohibited factor, it must $750 for applicants aged 21-30 and $1500 for applicants over provide an explanation for the difference in treatment. If the 30. This policy violated the ECOA’s prohibition on lender’s explanation is found to be not credible, the agency discrimination based on age. may find that the lender discriminated. There is overt evidence of discrimination even when a lender IV – 1.2 FDIC Consumer Compliance Examination Manual – March 2021 IV. Fair Lending — Fair Lending Laws and Regulations Redlining is a form of illegal disparate treatment in which ensure their effective implementation. While these procedures a lender provides unequal access to credit, or unequal apply to many examinations, agencies routinely use statistical terms of credit, because of the race, color, national origin, analyses or other specialized techniques in fair lending or other prohibited characteristic(s) of the residents of the examinations to assist in evaluating whether a prohibited basis area in which the credit seeker resides or will reside or in was a factor in an institution’s credit decisions. Examiners which the residential property to be mortgaged is located. should follow the procedures provided by their respective Redlining may violate both the FHAct and the ECOA. agencies
Load more

Recommended publications
  • Disparate Impact in Fair Lending: a Theory Without a Basis & the Law Of
    ELECTRONICALLY REPRINTED FROM FEBRUARY 2014 Disparate Impact in Fair Lending: A Theory without a Basis & the Law of Unintended Consequences By Andrew L. Sandler and Kirk D. Jensen he disparate impact theory of discrimination allows agencies and/or community organizations receiving govern- T the government or a private plaintiff to establish dis- ment funding, both cases settled shortly before oral argument, crimination based solely on the outcome of a neutral policy, denying the Supreme Court the opportunity to rule on the without having to prove any actual intent to discriminate. longstanding issue. Although the text of the Fair Housing Act (FHA) does not create liability for facially neutral activities with unequal The Theory effects, lower court decisions over the years have relied on The disparate impact theory of discrimination allows jurisprudence focused on other statutes with different lan- a party to establish discrimination based solely on the guage, agency guidance, and selective readings of legislative results of a neutral policy. Disparate impact is distinct history to permit disparate impact claims. The US Supreme from disparate treatment because a party is not required to Court more recently has issued several decisions undermining show any intent to discriminate. To establish a disparate this broad focus on the goals of the FHA, holding that the impact claim, a government agency or private plaintiff plain language of an anti-discrimination statute—and not a must show only that an otherwise neutral practice dispa- broad interpretation of its purpose—is dispositive of whether rately affects qualified members of a protected class. disparate impact claims are permitted.
    [Show full text]
  • RICCI V. DESTEFANO
    (Slip Opinion) OCTOBER TERM, 2008 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus RICCI ET AL. v. DESTEFANO ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 07–1428. Argued April 22, 2009—Decided June 29, 2009* New Haven, Conn. (City), uses objective examinations to identify those firefighters best qualified for promotion. When the results of such an exam to fill vacant lieutenant and captain positions showed that white candidates had outperformed minority candidates, a rancorous public debate ensued. Confronted with arguments both for and against certifying the test results—and threats of a lawsuit either way—the City threw out the results based on the statistical racial disparity. Petitioners, white and Hispanic firefighters who passed the exams but were denied a chance at promotions by the City’s re- fusal to certify the test results, sued the City and respondent officials, alleging that discarding the test results discriminated against them based on their race in violation of, inter alia, Title VII of the Civil Rights Act of 1964. The defendants responded that had they certified the test results, they could have faced Title VII liability for adopting a practice having a disparate impact on minority firefighters.
    [Show full text]
  • Disparate Impact and the Unity of Equality Law
    DISPARATE IMPACT AND THE UNITY OF EQUALITY LAW ∗ NOAH D. ZATZ INTRODUCTION ............................................................................................ 1359 I. STEP ONE: FROM DISCRIMINATORY INTENT TO STATUS CAUSATION ...................................................................................... 1370 A. Disparate Treatment Claims Identify Status Causation ........... 1371 B. Status Causation Links Disparate Treatment to Nonaccommodation .................................................................. 1375 1. Internal and External Forms of Status Causation ............... 1375 2. Separating Employee Injury from Employer Responsibility ..................................................................... 1378 II. STEP TWO: FROM INDIVIDUALIZED TO STATISTICAL PROOF ............ 1380 A. The Convergence and Divergence of Nonaccommodation and Disparate Impact ...................................................................... 1381 1. Convergence: External Status Causation En Masse ........... 1381 2. Divergence: Beyond Individualized Proof ......................... 1383 B. The Convergence and Divergence of Individual and Systemic Disparate Treatment ................................................................. 1386 1. Convergence: Internal Status Causation En Masse ............ 1386 2. Divergence: Beyond Individualized Proof ......................... 1387 III. PUTTING THE PIECES TOGETHER: EXTERNAL STATUS CAUSATION PROVEN STATISTICALLY .................................................................. 1392 A. Griggs’
    [Show full text]
  • When the Customer Is Wrong: Systemic Discrimination in the App-Based Service Industry University of Pittsburgh Law Review
    UNIVERSITY OF PITTSBURGH LAW REVIEW Vol. 81 ● Fall 2019 WHEN THE CUSTOMER IS WRONG: SYSTEMIC DISCRIMINATION IN THE APP-BASED SERVICE INDUSTRY Liz Taylor ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2019.666 http://lawreview.law.pitt.edu This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License. This site is published by the University Library System of the University of Pittsburgh as part of its D- Scribe Digital Publishing Program and is cosponsored by the University of Pittsburgh Press. WHEN THE CUSTOMER IS WRONG: SYSTEMIC DISCRIMINATION IN THE APP-BASED SERVICE INDUSTRY Liz Taylor* I. THE APP-BASED SERVICE INDUSTRY: AN INTRODUCTION Service industry workers will tell you that they are underpaid, overworked, and often harassed inappropriately by customers. Many service workers work long hours at sub-minimum wages, often surviving on caffeine and sheer determination. Many Americans feel that hospitality and customer service jobs are unimportant, undesirable, or intended for teenagers,1 and yet there are nearly 16 million people employed in the hospitality industry alone in the United States.2 The newest sector of the service industry is the so-called “gig” or sharing economy,3 an app-based service industry. App-based employment, currently classified as a form of independent contracting wherein workers connect via an app to perform tasks for each other, gained nearly 10 million new workers in the past decade,4 a number * J.D., May 2019, magna cum laude, University of Pittsburgh School of Law. Thank you to Professor Deborah Brake for her guidance during law school and throughout the drafting of this note.
    [Show full text]
  • C:\Working Papers\10946.Wpd
    NBER WORKING PAPER SERIES MEASURING DISPARATE IMPACTS AND EXTENDING DISPARATE IMPACT DOCTRINE TO ORGAN TRANSPLANTATION Robert Bornholz James J. Heckman Working Paper 10946 http://www.nber.org/papers/w10946 NATIONAL BUREAU OF ECONOMIC RESEARCH 1050 Massachusetts Avenue Cambridge, MA 02138 December 2004 Robert Bornholz is an Associate at the Center for Program Evaluation at the Harris School of Public Policy at the University of Chicago. James J. Heckman is Professor of Economics at the University of Chicago and Senior Fellow of the American Bar Foundation. Discussions with Joseph Gastwirth and Robert Gibbons greatly improved this comment. Remarks by Richard Epstein, Joseph Gelb, and Amy Wax were also helpful. The American Bar Foundation provided generous financial support. The views expressed herein are those of the author(s) and do not necessarily reflect the views of the National Bureau of Econmic Research. © 2004 by Robert Bornholz and James J. Heckman. All rights reserved. Short sections of text, not to exceed two paragraphs, may be quoted without explicit permission provided that full credit, including © notice, is given to the source. Measuring Disparate Impacts and Extending Disparate Impact Doctrine to Organ Transplantation Robert Bornholz and James J. Heckman NBER Working Paper No. 10945 December 2004 JEL No. K32 ABSTRACT This paper examines the economic and statistical foundations of proposed tests for discrimination. We focus on extension of disparate impact doctrine to new domains. Robert Bornholz The University of Chicago [email protected] James J. Heckman Department of Economics The University of Chicago 1126 E. 59th Street Chicago, IL 60637 and NBER [email protected] There are widespread racial disparities in employment, access to credit, health, and education.
    [Show full text]
  • The Social Costs of Uber
    Rogers: The Social Costs of Uber The Social Costs of Uber Brishen Rogerst INTRODUCTION The "ride-sharing" company Uber has become remarkably polarizing over the last year. Venture capital firms still love Ub- er's prospects, as reflected in a recent $40 billion valuation.1 Yet the company seems determined to alienate just about everyone else.2 Taxi drivers have cast Uber as an unsafe and rapacious competitor, leading lawmakers to shut it out of various mar- kets.3 Uber's claim that its average New York City driver earns over $90,000 a year was so hard to verify that a Slate writer en- titled her article "In Search of Uber's Unicorn." 4 And in what some have called "Ubergate,"5 a senior executive stated that the company might investigate the personal and family lives of its critics-in particular a female journalist who accused it of disre- garding female passengers' and drivers' safety.6 t Associate Professor of Law, Temple University James E. Beasley School of Law. I'd like to thank the staff of The University of Chicago Law Review for superb edito- rial assistance. Errors are of course mine alone. 1 Mike Isaac and Michael J. De La Merced, Uber Adds a Billion Dollars More to Its Coffers, NY Times Dealbook Blog (NY Times Dec 4, 2014), online at http://dealbook .nytimes.com/2014/12/04/uber-files-to-sell-1-8-billion-in-new-shares (visited Feb 26, 2015). 2 Indeed, one Silicon Valley venture capital chieftain has called the company "ethi- cally challenged." Hailey Lee, Uber Is 'Ethically Challenged'-Peter Thiel (CNBC Sept 17, 2014), online at http://www.enbe.com/id/102008782 (visited Feb 26, 2015).
    [Show full text]
  • Disparate Impact and the ADEA: So, Who Is Going to Be in the Comparison Group?, 39 J
    UIC Law Review Volume 39 Issue 4 Article 8 Summer 2006 Disparate Impact and the ADEA: So, Who is Going to be in the Comparison Group?, 39 J. Marshall L. Rev. 1475 (2006) Timothy Tommaso Follow this and additional works at: https://repository.law.uic.edu/lawreview Part of the Business Organizations Law Commons, Constitutional Law Commons, Elder Law Commons, Fourteenth Amendment Commons, Labor and Employment Law Commons, Legislation Commons, and the Litigation Commons Recommended Citation Timothy Tommaso, Disparate Impact and the ADEA: So, Who is Going to be in the Comparison Group?, 39 J. Marshall L. Rev. 1475 (2006) https://repository.law.uic.edu/lawreview/vol39/iss4/8 This Comments is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Review by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. DISPARATE IMPACT AND THE ADEA: SO, WHO IS GOING TO BE IN THE COMPARISON GROUP? TIMOTHY TOMMASO I. INTRODUCTION A decision has been made and the debate has ended. The Supreme Court, in Smith v. City of Jackson,' has ruled that under2 the Age Discrimination in Employment Act of 1967 ("ADEA) disparate impact claims are available.3 This decision came twenty- one years after the Court in Griggs v. Duke Power Co.4 developed the doctrine of disparate impact as a means for establishing liability under Title VII' of the Civil Rights Act of 1964 ("Title VII").' Now the big question becomes: who can be in the comparison group for the plaintiff to establish a disparate impact claim under the ADEA? This comment is the first to lay the foundation for what standard courts should accept as proper in deciding who a plaintiff can use as a comparison group.
    [Show full text]
  • The Business Necessity Defense in Disparate Impact Discrimination Cases
    College of William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 1996 The uB siness Necessity Defense in Disparate Impact Discrimination Cases Susan Grover William & Mary Law School, [email protected] Repository Citation Grover, Susan, "The usineB ss Necessity Defense in Disparate Impact Discrimination Cases" (1996). Faculty Publications. 19. https://scholarship.law.wm.edu/facpubs/19 Copyright c 1996 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs THE BUSINESS NECESSITY DEFENSE IN DISPARATE IMPACT DISCRIMINATION CASES Susan S. Grover* I. INTRODUCTION When an employer's facially neutral practice disproportionately harms minority or women workers, the workers may sue for disparate impact discrimination under Title VII.1 An employer whose practice is found to have such an impact may avoid liability by proving that the challenged discriminatory practice is required by "business necessity. "2 Long the subject of case-law colloquy, the business necessity defense secured a statutory foundation in the 1991 Civil Rights Act. 3 Although the new provision aspired to provide statutory guidelines for the business necessity defense, 4 it ultimately left open precisely the questions that antecedent case law had failed to resolve. The overarching issue continues to be whether the term "necessity" in the business necessity defense literally requires that the discriminatory practice be essential to the continued viability of the business, or whether it requires something less.5 This Article argues for the former interpretation. Those who argue that the defense requires a demonstration of something less than true necessity generally rely on one of two rationales.
    [Show full text]
  • Disparate Impact, Unified Law
    NICHOLAS O. STEPHANOPOULOS Disparate Impact, Unified Law abstract. The last decade has seen the largest wave of franchise restrictions since the dark days of Jim Crow. In response to this array of limits, lower courts have recently converged on a two-part test under section 2 of the Voting Rights Act. This test asks if an electoral practice (1) causes a disparate racial impact (2) through its interaction with social and historical discrimina- tion. Unfortunately, the apparent judicial consensus is only skin-deep. Courts bitterly disagree over basic questions like whether the test applies to specific policies or systems of election admin- istration; whether it is violated by all, or only substantial, disparities; and whether disparities refer to citizens’ compliance with a requirement or to their turnout at the polls. The test also sits on thin constitutional ice. It comes close to finding fault whenever a measure produces a disparate impact and so coexists uneasily with Fourteenth Amendment norms about colorblindness and Congress’s remedial authority. The section 2 status quo, then, is untenable. To fix it, this Article proposes to look beyond election law to the statutes that govern disparate impact liability in employment law, housing law, and other areas. Under these statutes, breaches are not determined using the two-part section 2 test. Instead, courts employ a burden-shifting framework that first requires the plaintiff to prove that a particular practice causes a significant racial disparity and then gives the defendant the op- portunity to show that the practice is necessary to achieve a substantial interest. This framework, the Article argues, would answer the questions that have vexed courts in section 2 cases.
    [Show full text]
  • Implementation of the Fair Housing Act's Discriminatory Effects
    Vol. 78 Friday, No. 32 February 15, 2013 Part IV Department of Housing and Urban Development 24 CFR Part 100 Implementation of the Fair Housing Act’s Discriminatory Effects Standard; Final Rule VerDate Mar<15>2010 19:38 Feb 14, 2013 Jkt 229001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\15FER3.SGM 15FER3 TKELLEY on DSK3SPTVN1PROD with RULES3 11460 Federal Register / Vol. 78, No. 32 / Friday, February 15, 2013 / Rules and Regulations DEPARTMENT OF HOUSING AND DATES: Effective Date: March 18, 2013. potential claims involving URBAN DEVELOPMENT FOR FURTHER INFORMATION CONTACT: discriminatory effects. Jeanine Worden, Associate General Legal Authority for the Regulation. 24 CFR Part 100 Counsel for Fair Housing, Office of The legal authority for the regulation is [Docket No. FR–5508–F–02] General Counsel, U.S. Department of found in the Fair Housing Act. Housing and Urban Development, 451 Specifically, section 808(a) of the Act RIN 2529–AA96 7th Street SW., Washington, DC 20410– gives the Secretary of HUD the 0500, telephone number 202–402–5188. ‘‘authority and responsibility for Implementation of the Fair Housing Persons who are deaf, are hard of administering this Act.’’ (42 U.S.C. Act’s Discriminatory Effects Standard hearing, or have speech impairments 3608(a)). In addition, section 815 of the AGENCY: Office of the Assistant may contact this phone number via TTY Act provides that ‘‘[t]he Secretary may Secretary for Fair Housing and Equal by calling the Federal Relay Service at make rules (including rules for the Opportunity, HUD. 800–877–8399. collection, maintenance, and analysis of appropriate data) to carry out this title.
    [Show full text]
  • Ricci V. Destefano: Diluting Disparate Impact and Redefining Disparate Treatment
    RICCI V. DESTEFANO: DILUTING DISPARATE IMPACT AND REDEFINING DISPARATE TREATMENT Ann C. McGinley* I. INTRODUCTION Title VII of the Civil Rights Act of 1964 forbids employment discrimina- tion based on an individual’s sex, race, color, national origin, and/or religion.1 The statute permits plaintiffs to bring discrimination cases under two different theories: disparate treatment, which requires a showing of the employer’s dis- criminatory intent, and disparate impact, which holds the employer liable absent intent to discriminate if it uses neutral employment policies or practices that have a disparate impact on a protected group. Ricci v. DeStefano signifi- cantly affects the interpretation of both of these theories of discrimination.2 The case arose out of written and oral examinations that the City of New Haven gave in 2003 to its firefighters who applied for promotions to lieutenant and captain positions.3 Despite the City’s hiring of an independent consultant, I/O Solutions (IOS), to create a fair, job related evaluative instrument, the results of the exam were disconcerting.4 In a City where more than one third of * William S. Boyd Professor of Law, UNLV Boyd School of Law, J.D. University of Pennsylvania Law School. I would like to thank David McClure for his research and Jeff Stempel for his encouragement on this project. 1 It states: (a) It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
    [Show full text]
  • Lies, Damned Lies, and Statistics: the Case to Require “Practical Significance” to Establish a Prima Facie Case of Disparate Impact Discrimination
    Oklahoma Law Review Volume 68 Number 3 2016 Lies, Damned Lies, and Statistics: The Case to Require “Practical Significance” to Establish a Prima Facie Case of Disparate Impact Discrimination Katie Eissenstat Follow this and additional works at: https://digitalcommons.law.ou.edu/olr Part of the Labor and Employment Law Commons Recommended Citation Katie Eissenstat, Lies, Damned Lies, and Statistics: The Case to Require “Practical Significance” to Establish a Prima Facie Case of Disparate Impact Discrimination, 68 OKLA. L. REV. 641 (2016), https://digitalcommons.law.ou.edu/olr/vol68/iss3/6 This Note is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in Oklahoma Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact [email protected]. Lies, Damned Lies, and Statistics: The Case to Require “Practical Significance” to Establish a Prima Facie Case of Disparate Impact Discrimination Introduction From advertisements, to advice, to policy discussions, statistics surround us daily.1 Four out of five dentists recommend Trident gum. The president’s approval rating has fallen by 5%. Smoking shortens a person’s life span by at least ten years. A total of 5.7% of Americans are currently unemployed. The list goes on and on.2 “In the problem of . discrimination, statistics often tell much, and Courts listen.”3 Because these mathematical calculations provide a seemingly clear objective standard, statistics can be a powerful tool for litigants in discrimination cases. Their persuasive capabilities instill a sense of unbiased security that subjective judgment calls cannot provide.4 It is widely believed this unbiased standardized determination will bolster justice and pinpoint when discrimination has occurred.5 While—as the popular cliché goes—the road to hell is paved with good intentions, the differing approaches to law and the science of statistics unfortunately often lead to confusion and misunderstandings in 6 application.
    [Show full text]