Last month was a big month for the civil rights community as the Supreme Court finally recognized same-sex marriage, but this wasn’t the only win. The Supreme Court also preserved the legal doctrine of disparate impact in a fair-housing case (pdf). While it doesn’t have the same direct, emotional impact as the gay-marriage case, the court’s decision regarding disparate impact is huge, and not just for equal rights in housing but also in other areas of civil rights law.
“Disparate impact” is a legal theory used by fair-housing advocates to demonstrate that a policy or practice has a disproportionate effect on a traditionally marginalized group. Because today people are less likely to explain their actions as being motivated by racial animus, suing someone based on intentional discrimination has become harder. People aren't as likely to say out loud things that are overtly racist; rather, we have been socialized so that what was previously expressed explicitly instead becomes a sanitized euphemism.
“I don’t like black people, so I don’t want to live in that neighborhood" has become an innocuous “I don’t feel comfortable in that neighborhood.” In an age in which our biases are increasingly swept under the carpet and disguised, disparate impact is one of the few ways civil rights advocates have of rooting out systemic discrimination. If we’d lost this legal tool last month, civil rights would have been set way, way back.
But in addition to preserving this important legal theory, the decision is also important for the court’s acknowledgment of unconscious bias. Justice Anthony Kennedy, on behalf of the majority of the court, wrote (pdf): “Recognition of disparate-impact liability under the FHA [Fair Housing Act] also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract the unconscious prejudices and disguised animus that escape easy classification as disparate treatment.” This is one of the first times the court has recognized the impact of unconscious biases, per se, in a majority opinion (although there has been some discussion of implicit bias and unconscious stereotyping, especially in dissents or nonmajority opinions).
Evidence that unconscious bias affects all ranges of decisions within the housing context is plentiful. One study (pdf) found that housing providers (i.e., landlords and real estate agents) replied to 89 percent of emails from home seekers with white-sounding names, but to only 61 percent of emails from home seekers if they had a nonwhite-sounding name.
Implicit bias may also affect how we evaluate property. In one study (pdf), participants were asked to evaluate a house for sale by viewing pictures and a profile of a house. Although the information about the house remained constant, the researchers varied the race of the family selling the home by inserting a picture of a white or a black family into the picture of the living room.
What were the results? Participants who evaluated the house when it was listed as for sale by a black family rated it more negatively in value and likability than did participants who evaluated the house when it was listed as for sale by a white family.
Similarly, in another study, researchers tested white participants’ willingness to place a chemical plant in predominantly minority or white neighborhoods. The researchers found that, regardless of how participants explicitly described their feelings toward blacks, they were still more likely to be comfortable placing a chemical plant in a minority rather than in a white neighborhood. Fair-housing advocates and academics submitted numerous briefs (pdf) to the court in advance of its decision detailing these and other effects of implicit bias on housing.
Because courts considering a disparate-impact claim look at the results, rather than the intention, behind a decision or policy, disparate impact is an important tool for rooting out both explicit, purposeful discrimination and unconscious discrimination. Although unconscious bias is difficult to address because of its shadowy nature, advocates have risen to the challenge, and as last month’s decision shows, the highest court has begun to listen.
A. Gordon is a civil rights attorney in Washington, D.C.