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Jan 09
2012
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Fair Housing 2012 - The Two Most Important Words
Posted by: Nadeen Green on Jan 9, 2012 14:11 Tagged in: Fair Housing
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Fair
I thought about holding a contest to see who might be able to come up with what I believe may be the two most important words for fair housing this year. But being generous of heart and spirit, I am simply going to tell you the two words, and then (not so simply, but still understandably, I hope) I will explain my rationale.
Two words – disparate impact. You, dear reader, are not an attorney so that sounds boring (I totally get it). Why should you care? Because those two words may result in your having to change policies and procedures at your community. Say what!?
All right. Let’s get the tedious part over with. The definition of disparate impact goes like this: the adverse effect of a practice or standard that is neutral and non-discriminatory in its intention, but, nonetheless, disproportionately affects individuals who belong to a particular group that is protected under the law. (Yawn – but please do not stop reading!)
An example: Many years ago, it was a standard of many businesses that employees were required to be “clean-shaven” – no facial hair whatsoever. This was a policy that was “neutral and non-discriminatory” because it was applied to everyone – no particular group of people was told “you can’t have facial hair”, everyone was told that. Now I share two more words with you: pseudofolliculitis barbae (not to be confused with “supercalifragilisticexpialidocious”).This is most common on the male face; after being shaved off, hair begins to grow back. Coarse and curly hair tends to curl into the skin instead of straight out the follicle, leading to an inflammation reaction and possibly keloid scarring. Who tends to have naturally coarse or tightly curling hair? Men of African, Mediterranean and Near Eastern descent.
So here comes Domino’s Pizza (no, not a delivery), requiring its employees to be clean shaven. A policy that is neutral (for everyone) and not intended to be discriminatory under employment law. But (1) because African American males suffer from pseudofolliculitis barbae more than Caucasian males, and (2) because employment law does have a “disparate impact” component, the court found that Domino Pizza’s no-beard policy violated the 1991 Civil Rights Act, Title VII.
OK – Let me get to the point. Right now, fair housing law does not have a “disparate impact” component. But the Supreme Court will hear a case (Gallagher v. Magner) and likely by this spring (2012) rule on whether disparate impact should be part of fair housing law. And HUD is looking at incorporating such a standard. If disparate impact becomes the standard, there are practical implications. The industry may not be able to require criminal background checks (just as certain protected employment groups were unintentionally impacted by the “clean shaven” policy, certain protected housing groups are more likely to have criminal backgrounds). Could this be applied to income standards? Possibly, as certain groups earn less. (If I show you that I historically pay my rent on time, what does my income really matter?) Are there other areas that could be impacted – I would imagine so.
It is not a sexy case, Gallagher v. Magner. It will not get a lot of general press. But depending on the Supremes and HUD, change is possible in the wind. You may need to adjust your sails.
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I guess if they are "out" then they have paid their debt to society and theoretically should be treated as everyone else.
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Pepsi will pay $3.13 million to resolve a charge of racial discrimination related to criminal background checks for job screenings, which led to disproportionate exclusion of 'black' applicants.
Pepsi Beverages (Pepsi), formerly known as Pepsi Bottling Group, has agreed to pay $3.13 million and provide job offers and training to resolve a charge of racial discrimination filed in the Minneapolis Area Office of the US Equal Employment The EEOC is a member of federal inter-agency Reentry Council and enforces federal laws against employment discrimination.
Under Pepsi's former policy, job applicants who had been arrested pending prosecution were not hired for a permanent job even if they had never been convicted of any offence.
It also denied employment to applicants that had been arrested or convicted of certain minor offences.
According to EEOC, more than 300 African-Americans were adversely affected when Pepsi applied a criminal background check policy that disproportionately excluded black applicants from permanent employment.
The monetary settlement of $3.13 million will be primarily divided among black applicants for positions at Pepsi, while a portion will be allocated for administration of the claims process.
"The use of arrest and conviction records to deny employment can be illegal under Title VII of the Civil Rights Act of 1964, when it is not relevant for the job, because it can limit the employment opportunities of applicants or workers based on their race or ethnicity," EEOC added.
In addition to the monetary relief, Pepsi will offer employment opportunities to victims of the former criminal background check policy that still want jobs at Pepsi and are qualified for jobs for which they apply.
Furthermore, Pepsi will also conduct Title VII training for its hiring personnel and all of its managers.
"The EEOC has long-standing guidance and policy statements on the use of arrest and conviction records in employment," EEOC Chair Jacqueline A Berrien said and added, "I commend Pepsi's willingness to re-examine its policy and modify it to ensure that unwarranted roadblocks to employment are removed."
Pepsi has since adopted a new criminal background screening policy.
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On the other hand, this will reduce the cost of the screening process for Applicants if criminal background screening is no longer legal (or required.)