Supreme Court Acknowledges “Unconscious Prejudice.”

From Slate, by Kenji Yoshino:
Thursday’s blockbuster opinion in the Texas Department of Housing and Community Affairs v. Inclusive Communities Project case will be primarily and justly remembered for interpreting the Fair Housing Act to include a disparate-impact cause of action. In anti-discrimination law, “disparate treatment” requires an intent to discriminate, while “disparate impact” can allow a plaintiff to win even in the absence of discriminatory intent. For instance, if an entity has a policy that disproportionately affects a protected group, it has to justify that disparity even in the absence of any allegation of discriminatory intent. If it cannot produce such a justification, it will lose. As many progressives have already noted, this interpretation of the FHA is a big win, as discriminatory intent is often difficult to prove.

While less obvious, however, there is a passage in the FHA case that can also be counted as a potential win for progressives. On Page 17 of the slip opinion, Justice Anthony Kennedy writes, “Recognition of disparate-impact liability under the FHA 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.” (Emphasis mine.) Disparate impact has long been seen as a way of proving “disguised animus”—so that is nothing new. However, the idea that disparate impact can be used to get at ...

Source: The Situationist - June 26, 2015 Category: Psychiatry & Psychology Authors: The Situationist Staff Tags: Implicit Associations Law Situationist Contributors Social Psychology Source Type: blogs