Magner v. Gallagher, And Disparate Impact For Thee, Not For Me

In employment, disparate impact is a huge deal in hiring firemen, but it’s a very small deal in Hollywood and Silicon Valley…Movie crews look like the LA Fire Department in 1975.

Roger Clegg writes at National Review:

Earlier this year, the Supreme Court was poised to hear oral arguments in the fully briefed Magner v. Gallagher, a case presenting the issue of whether a “disparate impact” cause of action may be brought under the Fair Housing Act. Now, the theory in disparate-impact causes of action is that someone can be held liable for racial discrimination if he uses a selection device that leads to a racial imbalance, even if the device is neutral on its face, in its intent, and as applied. In the housing context, for example, rejecting mortgage applicants because of their credit history can be challenged if this results in a higher percentage of blacks than Asians being turned down, and it then becomes up to the lender to prove to a jury some degree of “business necessity” for his practice. The Obama administration is a great fan of this approach to civil-rights enforcement, and it was quite upset that the Supreme Court might rule it illegal. So it successfully leaned on the City of St. Paul, a petitioner in the suit, to withdraw its case from the Supreme Court.

The Magner case stems from the city of St. Paul deciding to crack down on slumlords by enforcing already written laws and regulations in the housing code (e.g., fire safety). The slumlords got together and sued the city for racial discrimination because most of their tenants are black, and they argued that enforcing the laws would have disparate impact on blacks because that would raise the slumlords’ costs, which they would pass on to their black tenants. (I don’t know what race(s) the slumlords are.) So, that would be discrimination!

The plaintiffs and defendants split the first two rounds, and the Supreme Court accepted the case.


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