Disparate Impact

News & Analysis as of

The Future Of CFPB Small Business Lending Regulation

In this article we highlight the role played by the Consumer Financial Protection Bureau in regulating small business lending. Broadly speaking, the bureau’s jurisdiction is limited to the marketplace for consumer financial...more

Was a CFPB Enforcement Action Based on "Racial Profiling and Junk Science"?

In a press release dated April 18, 2012, the Consumer Financial Protection Bureau (CFPB or Bureau) declared that it would "use all available legal avenues, including disparate impact, to pursue lenders whose practices...more

What Employers Need to Know About the New York City Pregnancy Accommodation Enforcement Guidance

The New York City Commission on Human Rights has released enforcement guidance on the New York City Pregnant Workers Fairness Act identifying five categories of potential violations and emphasizing the need to engage in...more

Not Starry-Eyed: Massachusetts Imposes Rigorous Standard on Fair Housing Disparate Impact Claims in Burbank Apartments

The Massachusetts Supreme Judicial Court (“SJC”) recently answered the question of whether the Massachusetts anti-discrimination statute Chapter 151B recognizes a disparate impact theory of discrimination. In Burbank...more

Landmark Discrimination Case: Fair Housing Act Thwarts NIMBYs - Avenue 6E Investments, LLC v. City of Yuma (March 25, 2016)

Why It Matters: The Ninth Circuit Court of Appeals reversed a decision in favor of the City of Yuma, Arizona, and concluded instead that there was sufficient evidence to present to a jury that the City had rejected the...more

What GCs Need to Know About Reductions in Force

Reductions in force (“RIFs”) are group terminations, usually driven by the financial condition or business needs of the employer. An employer’s General Counsel, even though responsible for protecting the employer from legal...more

Industry trade groups’ renewed challenge to HUD disparate impact rule could yield helpful precedent for ECOA cases

The D.C. district court recently granted two industry trade associations whose members sell homeowners insurance leave to file an amended complaint in their lawsuit challenging the Fair Housing Act (FHA) disparate impact rule...more

Section 1557 of the ACA: The Legal Side of Health Equity

This week marks the end of National Minority Health Month and its 2016 theme of “Accelerating Health Equity for the Nation.” This month, the HHS Office of Minority Health’s goal was to “raise awareness of the health...more

Lawler Foods to Pay over $1 Million to Settle EEOC Race and National Origin Discrimination Suit

Bakery Refused to Hire Applicants Based on Their Race/National Origin, Federal Agency Alleged - HOUSTON - A large local bakery will pay $1,042,000 as part of the settlement of a class race and national origin...more

Massachusetts High Court Examines Disparate Impact Theory in Light of Recent Supreme Court Decision

A ruling last week by Massachusetts' highest state court demonstrates courts' vigorous examination of disparate impact housing claims in light of recent judicial guidance, as well as the type of proactive measures property...more

Industry Trade Groups Renew Challenge to HUD Disparate Impact Rule

Two industry trade associations whose members sell homeowners insurance have been granted leave to file an amended complaint in their lawsuit challenging the Fair Housing Act (FHA) disparate impact rule (Rule) adopted by the...more

Can the USPTO Still Reject “Disparaging” Trademarks? Stay Tuned

Nobody knows, and that’s why the United States Patent and Trademark Office (USPTO) just filed a petition asking Supreme Court to settle its turf battle with the Federal Circuit Court....more

HUD Issues Guidance Regarding the Application of Fair Housing Act Standards to the Use of Criminal Records

On April 4, HUD issued guidance deploying a disparate impact analysis with respect to the Fair Housing Act’s application to the use of criminal history by those who come under the Fair Housing Act, and in particular by...more

HUD Releases Guidance on Criminal Background Checks by Housing Providers

The U.S. Department of Housing and Urban Development (HUD) on April 4, 2016, issued guidance addressing Fair Housing Act liability regarding the use of criminal background checks or screenings in housing determinations....more

Director Cordray defends CFPB positions in appearance before Senate Banking Committee; comments on small business lending and...

Much of Director Cordray’s testimony in his appearance before the Senate Banking Committee yesterday consisted of his predictable defense of various CFPB positions. While the hearing was much less contentious than last...more

Life and Annuity Series: Cost-of-Insurance Charge Litigation

Plaintiffs' lawyers have been challenging cost-of-insurance (COI) charges for years, with mixed results. The following outline reviews the most recent flurry of cases. ...more

HUD publishes new Fair Housing guidance on criminal background checks

On Monday, HUD published new guidance for landlords conducting criminal background checks as a condition of renting housing. This guidance is applicable to all providers or operators of housing and real estate related...more

Employment Law Commentary, March 2016

The California Fair Employment And Housing Council Issues Proposed Regulations To Limit Consideration Of Criminal History In Employment Decisions - Employers take great measures to avoid hiring dangerous employees—not...more

Health Care Discrimination Litigation Gets a New Set of Teeth under the ACA: 2015 Litigation Review and Preview of 2016

Discrimination in health care was prohibited before the Affordable Care Act, but on a limited basis. Protected classes did not include sex; prohibitions excluded private physicians accepting Medicare Part B; and, most...more

Director Cordray appears before House Financial Services Committee

Director Cordray was the sole witness at the hearing held yesterday by the House Financial Services Committee, which was entitled “The Semi-Annual Report of the Bureau of Consumer Financial Protection.” In November 2015, the...more

Mixing Employee Surveillance and Big Data

No doubt, this is big data’s time. Businesses have begun to make decisions based on data and data analytics, rather than relying on gut instincts or business acumen. Data-driven business has proven to be successful, but we...more

Disparate Impact Continues to be a Viable Discrimination Theory for the CFPB under the ECOA

On Wednesday, March 16, 2016, the House Financial Services Committee hosted the Consumer Financial Protection Bureau’s (“CFPB”) Director Richard Cordray for a hearing on “The Semi-Annual Report of the Bureau of Consumer...more

New York City Makes “Caregivers” the Newest Class of Protected Employees

Effective May 4, 2016, New York City employers with four or more employees are prohibited from firing or refusing to hire an individual, and from discriminating against an individual in compensation or terms and conditions of...more

[Webinar] "Ban The Box" And Other Laws Limiting An Employer's Use Of Criminal History - March 30th, 1:00pm EDT

Employers face an increasing number of laws that limit when an employer may ask for and use an applicant's criminal history. "Ban the Box" laws prohibit questions about criminal history on the initial application. In...more

Update on the U.S. Supreme Court’s Inclusive Communities Decision

As previously reported on this blog, the U.S. Supreme Court’s decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015) adopted a burden-shifting approach to...more

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