Wake Forest Law Review
19Apr

Racial Discrimination in Tenant Screening Services

Categories: Current Issues Blog
Comments Off on Racial Discrimination in Tenant Screening Services

Maggie Martin

In 2019, Carmen Arroyo (“Arroyo”) and the Connecticut Fair Housing Center filed suit against CoreLogic Rental Property Solutions, LLC (“CoreLogic”) on the basis that CoreLogic violated the Fair Housing Act (“FHA”).[1]  Arroyo sued on behalf of her son Mikhail, who was previously “injured in an accident . . . which left him unable to speak, walk or care for himself.”[2]  Arroyo attempted to transfer Mikhail to a new apartment owned by WinnResidential.[3] 

For its tenant applications, WinnResidential outsourced tenant screenings to CoreLogic, which conducted screenings through its algorithm CrimSAFE.[4]  These screenings “use[d] an algorithm to interpret an applicant’s criminal record and provide housing providers with a decision on whether the applicant qualifies for housing.”[5]  Ultimately, the CrimSAFE algorithm concluded that Mikhail was “not qualified for tenancy,” even though he was “never . . . convicted of a crime.”[6] 

Arroyo is not alone in her experience.  Housing law attorneys explain that “thousands of people . . . are mistakenly flagged” by this software.[7]  Further, this risk has only “accelerated over the last two decades as the rental market has increased and the . . . real estate analytics market has boomed.”[8]  Accordingly, applicants now face a market where almost all landlords utilize this software “to find who they consider to be the highest-quality tenants.”[9]  In effect, screening companies are now “functionally mak[ing] rental decisions on behalf of landlords” simply through an algorithm.[10]

Notably, these algorithms often determine that consumers of color are not the “highest-quality tenants.”[11]  Given that these algorithms flag arrests without requiring an ultimate conviction, the algorithms disproportionately screen out African American and Latino applicants because “arrests merely show that a police officer suspects criminal activity” and is not “actual proof of misconduct.”[12]  Therefore, these algorithms correspond to established trends in racial profiling where law enforcement officers arrest people of color solely on the basis of race.[13]

Like these national trends, the plaintiffs alleged that CoreLogic violated the FHA by discriminating on the basis of race and national origin.[14]  Fundamentally, the FHA was passed to stop discriminatory housing practices,[15] and it states that it is an unlawful discriminatory act to “make unavailable or deny, a dwelling to any person because of race, . . . or national origin.””[16]  In line with FHA requirements, the plaintiffs argued that CoreLogic’s algorithm has a disparate impact on African Americans and Latinos.[17] 

After surviving a motion for summary judgment, this case went to a bench trial on March 14, 2022.[18]  The U.S. District Court, District of Connecticut now has the opportunity to broadly interpret the FHA and capture within its purview what is just a technologically-sophisticated form of housing discrimination.  By applying the FHA to tenant screening companies, these algorithms could no longer “use search criteria that are ‘proxies’ for race and gender, such as criminal history and eviction data.”[19]   Accordingly, this private action poses the possibility that housing practices may change radically for the wellbeing of Latino and African American renters. 

Cases such as CoreLogic provide a chance for the courts to see the need for further action.  While these companies “are subject to some regulation under federal law, more needs to be done to ensure that these reports are accurate, unbiased, and compliant with state and local efforts to reduce the stigma associated with and barriers created by a criminal record.”[20]  Moreover, the continued presence of “[d]iscrimination in the credit and housing markets has led to disparities in wealth, homeownership, and economic opportunity for consumers of color . . . .”[21]  Therefore, without taking steps to prevent discrimination in tenant screening, fundamental goals of equality will be frustrated.

Like most interaction in 2022, modern discrimination in housing seems to occur more often behind a computer rather than face-to-face.  Accordingly, permitting tenant screening services to evade federal law, perpetuate racial inequality, and heighten the stigma surrounding criminal histories violates the stated goals of the FHA.  Although tenant screening companies are already covered by the Fair Credit Reporting Act,[22] stories such as the Arroyos demonstrate that this statutory scheme is not enough to protect renters.  The current framework allows for an unseen, intermediary entity to continually disadvantage African American and Latino renters, and it forces individuals to seek their own judicial recovery, rather than relying upon the federal government to challenge discriminatory housing practices.

Ultimately, the current success of the FHA is largely attributable to private enforcement actions,[23] and this case might further the FHA’s application to account for the current housing market. Although the future of the CoreLogic case is still unknown, the plaintiffs rightfully warn the “housing industry [to pay] attention to this trial, as it will set an important precedent for tenant-screening technologies moving forward.”[24]                       

[1] Connecticut Fair Housing Center v. CoreLogic Rental Property Solutions, LLC, 369 F. Supp. 3d 362, 366 (D. Conn. 2019).

[2] Id. at 367.

[3] Id.

[4] Id.

[5] Id.

[6] Id. at 367–68.

[7] Cyrus Farivar, Tenant Screening Software Faces National Reckoning, NBC News (Mar. 14, 2021, 7:00 AM), https://www.nbcnews.com/tech/tech-news/tenant-screening-software-faces-national-reckoning-n1260975.          

[8] Id.

[9] Id.

[10] Connecticut Fair Housing Center, et al. v. CoreLogic Rental Property Solutions, Cohen Milstein https://www.cohenmilstein.com/case-study/connecticut-fair-housing-center-et-al-v-corelogic-rental-property-solutions (last visited Apr. 8, 2022).

[11] See Farivar, supra note 7.

[12] Tex Pasley et al., Screened Out: How Tenant Screening Reports Deprive Tenants of Equal Access to Housing, Shriver Ctr. on Poverty L. 1, 16–17 (Jan. 2020), https://www.povertylaw.org/wp-content/uploads/2021/01/tenant-screening-final-report.pdf.

[13] Racial Profiling: Definition, ACLU, https://www.aclu.org/other/racial-profiling-definition (last visited Apr. 8, 2022).

[14] CoreLogic, 369 F. Supp. at 369.

[15] Shivangi Bhatia, To “Otherwise Make Unavailable”: Tenant Screening Companies’ Liability Under the Fair Housing Act’s Disparate Impact Theory, 88 Fordham L. Rev. 2551, 2556 (2020) (citing Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2521 (2015)).

[16] 42 U.S.C. § 3604.

[17] CoreLogic, 369 F. Supp. at 369.

[18] Emma Whitford, Trial to Ask: Was Tenant Screener’s Conduct Discriminatory?, L. 360 (March 11, 2022, 7:46 PM), https://www.law360.com/articles/1473150.                       

[19] Bhatia, supra note 15, at 2582.

[20] Screened Out, supra note 12, at 20.

[21] Nat’l Consumer L. Ctr., Comment Letter on Request for Information and Comment on the Financial Institutions’ Use of Artificial Intelligence, Including Machine Learning, at 3 (July 1, 2021), https://www.fdic.gov/resources/regulations/federal-register-publications/2021/2021-rfi-financial-institutions-ai-3064-za24-c-041.pdf.           

[22] Tenant Screening and Selection: How it Works in the Twin Cities Metro Area and Opportunities for Improvement, Fam. Hous. Fund and Hous. Just. Ctr. 1, 17 (Mar. 2021), https://www.hjcmn.org/wp-content/uploads/2021/04/Tenant-Screening-Report.pdf.

[23] Deborah Kemp, The 1968 Fair Housing Act: Have Its Goals Been Accomplished?, 14 Real Est. L.J. 327, 343 (1986).

[24] Housing Discrimination Trail Against Tenant-Screening Firm Begins in Connecticut, Black Star News (Mar. 14, 2022), https://www.blackstarnews.com/us-politics/justice/housing-discrimination-trial-against-tenant-screening-firm-begins. 

Photo by Pixabay from Pexels

Tags:
24Sep

Bostock’s Aftermath: Textual Similarity in Federal Statutes Provides Opportunity for Huge Step Forward in LGBTQ+ Rights

Categories: Current Issues Blog
Comments Off on Bostock’s Aftermath: Textual Similarity in Federal Statutes Provides Opportunity for Huge Step Forward in LGBTQ+ Rights

By Zeliang Mike Liu

On June 15, 2020, the Supreme Court issued a landmark 6-3 decision stating that Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits an employer from firing an individual for being homosexual or transgender.[1] The question came to the court through three different cases: Bostock v. Clayton County, in which a child welfare advocate was fired for participating in a gay recreational softball league after ten years working for a Georgia county; Altitude Express v. Zarda, in which a skydiving assistant was fired after he told a female customer that he was gay, and the customer’s boyfriend complained that he inappropriately touched her; and R.G. & G.R. Harris Funeral Homes v. Equal Employment and Opportunity Commission, in which a funeral home employee was fired when she informed the funeral home that she decided to undergo gender reassignment surgery.[2] Writing for the majority, Justice Neil Gorsuch stated that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”[3]

Though the court’s focus in Bostock was the issue of employers discharging employees based on sexual orientation and transgender status, the court arguably provided a broad ruling with impacts to multiple areas of the law. As Justice Samuel Alito stated in his dissent, the Court’s ruling is “virtually certain to have far-reaching consequences” and will inevitably affect other federal laws, such as Title IX of the Education Amendments of 1972 (“Title IX”), the Patient Protection and Affordable Care Act (“ACA”), and the Fair Housing Act (“FHA”).[4] The implication of Bostock is not only protection of LGBTQ+ rights in employment, but an essential tool to address discrimination against LGBTQ+ community members not just in education, healthcare, and housing.

Employment

Workplace discrimination against LGBTQ+ community members is well documented. Between 8–17 percent of LGBTQ+ workers and 13–47 percent of transgender workers have been denied employment opportunities or unfairly discharged because of sexual orientation or transgender status.[5] Nearly 30 percent of LGBTQ+ workers of color reported that they have experienced employment discrimination for sexual orientation.[6]

Title VII prohibits employment discrimination based on an individual’s sex.[7] The statute extends beyond discharging and applies when employers “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges or employment.”[8]Under Title VII, “compensation” includes not only wages but also benefits such as overtime pay, life insurance, vacation and holiday pay, and bonuses.[9]

The Supreme Court’s decision in Bostock directly affects employment practice with regard to an employee’s sexual orientation or transgender status. In its reasoning, the Court stressed that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex.”[10]Thus, although the individual cases before the Court focused on the wrongful termination of LGBTQ+ workers, the Court nevertheless determined that under Title VII protects against broader discrimination based on sexual orientation and transgender status.[11]

Although the Court specifically stated that its decision in Bostock does not “address bathrooms, locker rooms, or anything else of the kind” when addressing employers’ concern of whether sex-segregated spaces violate Title VII,[12]the Court’s decision does extend to equal access to existing sex-segregated facilities, meaning that an employer cannot deny an LGBTQ+ worker from access to the existing sex-segregated facilities.[13]

Education

Title IX prohibits discrimination “on the basis of sex” in any education program or activity that receives federal funding.[14]Although the statue does not define the scope of discrimination “on the basis of sex,” courts have often looked at cases that define the scope of sex discrimination under Title VII to interpret the meaning of discrimination “on the basis of sex” under Title IX because of the similarities between Title VII and Title IX’s language.[15]The Fourth, Sixth, and Seventh Circuit Courts of Appeal, have all previously held that Title IX prohibits discrimination based on sexual orientation and gender identity by extending decisions that stated Title VII prohibits discrimination based on sexual orientation and gender identity prior to the Supreme Court’s decision in Bostock.[16]

Therefore, Bostock’s holding that Title VII prohibits discrimination based on sexual orientation and transgender status provides further assistance for courts to extend Title IX’s protections for LGBTQ+ students.

Housing

The FHA prohibits discrimination in the sale, rental, and financing of housing based on race, color, national origin, religion, sex, familial status, and disability.[17]Similar to Title IX, courts often look to Title VII when determining the scope of prohibited sex discrimination under FHA.[18]Thus, courts are also likely to extend Bostock to FHA and offer greater protection on LGBTQ+ rights under the FHA.

The Trump administration issued a proposal in July 2020 to limit the 2016 Equal Access Rule and allow housing programs funded by the U.S. Department of Housing and Urban Development (“HUD”) to deny shelter access based on transgender status.[19]In light of the Bostock decision, Reps. Jennifer Wexton and Maxine Waters submitted a letter to Dr. Ben Carson, Secretary of HUD, to revise the proposal in accordance with Supreme Court’s holding in Bostock.[20]However, Dr. Carson stated in response that “[t]he Supreme Court’s ruling in Bostock has no impact on the Department’s proposed rule.”[21] HUD’s apparent refusal to take Bostock highlights a next step in the path forward for LGBTQ+ rights.

Healthcare

Section 1557 of the ACA prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities.[22] The nondiscrimination language in Section 1557 was built on other federal civil rights laws including Title VII, Title IX, the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975.[23] Thus, since the Supreme Court held in Bostock that Title VII forbids discrimination based on sexual orientation and transgender status, such holding likely carries significant weight in application to ACA.

In 2016, the Obama administration promulgated a rule stating that Section 1557 of ACA prohibits discrimination in health activities and activities on the basis of sexual orientation and gender identity.[24] Earlier this year, the Trump administration proposed a rule to exclude ACA’s protection on sexual orientation and gender identity, and four days after the Bostock decision, the Department of Health and Human Services issued its final rule.[25] However, on August 17, 2020, one day before the rule was planned to go into effect, a federal judge issued a preliminary injunction, which barred the rule from going into effect, relying on the Supreme Court’s decision in Bostock.[26]The recognition of the interplay between Title VII and the ACA provided further assurance on Bostock’s positive impact on ACA.

The Supreme Court’s decision in Bostock is a great victory for LGBTQ+ community that’s worth celebrating. Although the fight for LGBTQ+ rights is not over, Bostock nevertheless demonstrates that the LGBTQ+ community has advanced powerful arguments that even the Supreme Court’s most ardent textualist supports. Similar text in other federal statutes provides a path forward for future solidification of LGBTQ+ rights.

[1] See Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020).

[2] Id. at 1737–38.

[3] Id. at 1741.

[4] Id. at 1778 (Alito, J., dissenting).

[5] Ctr. Am. Progress et al., A Broken Bargain: Unchecked Discrimination Against LGBT Workers 1 (2014), https://www.lgbtmap.org/file/unchecked-discrimination-against-lgbt-workers.pdf.

[6] Nat’l Pub. Radio Et Al., Discrimination in America: Experiences and Views of LGBTQ Americans 11 (2017), https://cdn1.sph.harvard.edu/wp-content/uploads/sites/94/2017/11/NPR-RWJF-HSPH-Discrimination-LGBTQ-Final-Report.pdf.

[7] 42 U.S.C. § 2000e-2(a).

[8] Id.

[9] U.S. Equal Emp’t Opportunity Comm’n, EEOC-NVTA-0000-12, Facts about Equal Pay and Compensation Discrimination (1997), https://www.eeoc.gov/laws/guidance/facts-about-equal-pay-and-compensation-discrimination.

[10] Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1747 (2020).

[11] See id.

[12] Id. at 1753.

[13] The U.S. Equal Employment Opportunity Commission (“EEOC”) has established that a transgender employee’s right to use woman bathroom is protected by Title VII. Lusardi v. McHugh, E.E.O.C. Doc. No. 0120133395, 2015 WL 1607756, at *7 (Apr. 1, 2015).

[14] 20 U.S.C. § 1681(a).

[15] See, e.g., Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1047 (7th Cir. 2017); Smith v. Metro. Sch. Dist. Perry Twp., 128 F.3d 1014, 1022–23 (7th Cir. 1997).

[16] See Whitaker, 858 F.3d at 1047–49; Dodds v. U.S. Dep’t of Educ., 845 F.3d 217, 221 (6th Cir. 2016) (noting that Title VII’s prohibition on discrimination based on sexual non-confirming behaviors is applicable in the context of Title IX); Grimm v. Gloucester Cnty. Sch. Bd., 400 F. Supp. 3d 444, 451-52 (E.D. Va. 2019), aff’d, No. 19-1952, 2020 WL 5034430 (4th Cir. Aug. 26, 2020), as amended (Aug. 28, 2020).

[17] 42 U.S.C. § 3604(a).

[18] See, e.g., Smith v. Avanti, 249 F. Supp. 3d 1194, 1200 (D. Colo. 2017) (“The Tenth Circuit looks to Title VII discrimination cases for guidance in addressing discrimination issues under the FHA.”).

[19] Making Admission or Placement Determinations Based on Sex in Facilities Under Community Planning and Development Housing Programs, 85 Fed. Reg. 44,811, 44,811 (proposed July 24, 2020) (to be codified at 24 C.F.R. pt. 5, 576), https://www.govinfo.gov/content/pkg/FR-2020-07-24/pdf/2020-14718.pdf.

[20] See Press Release, U.S. House Comm. Fin. Serv., Walters and Wexton Call on HUD to Reconsider Revisions to Equal Access Rule (July 6, 2020), https://financialservices.house.gov/news/documentsingle.aspx?DocumentID=406742.

[21] Letter from Ben Carson, Sec’y, U.S. Dep’t Hous. & Urban Dev., to Maxine Waters, Rep., 43rd Cong. Dist., and Jennifer Wexton, Rep., 10th Cong. Dist. (July 13, 2020), https://wexton.house.gov/uploadedfiles/hud_response_to_waters-wexton_6.29.20_letter.pdf.

[22] See 42 U.S.C.§ 18116.

[23] Id.

[24] See Maya Rhodan, Obamacare Rule Bans Discrimination Against Transgender Patients, Time (May. 13, 2016), https://time.com/4329609/transgender-discrimination-obamacare-healthcare/; see also 45 C.F.R. § 92.207, https://www.govinfo.gov/content/pkg/CFR-2016-title45-vol1/pdf/CFR-2016-title45-vol1-sec92-207.pdf.

[25] See Dan Diamond, Trump Team Moves to Scrap Protections for LGBTQ Patients, Politico (Apr. 24, 2020), https://www.politico.com/news/2020/04/24/trump-team-moves-to-scrap-protections-for-lgbtq-patients-206398; see also Nondiscrimination in Health and Health Education Programs or Activities, Delegation of Authority, 85 Fed. Reg. 37,160 (June. 19, 2020) (to be codified at 42 C.F.R. pt. 438, 440, 406 and 45 C.F.R. pt. 86, 92, 147, 155, 156).

[26] Walker v. Azar, No. 20CV2834FBSMG, 2020 WL 4749859, at *10 (E.D.N.Y. Aug. 17, 2020).

Tags:
14Sep

Weekly Roundup: 9/10 – 9/14

Categories: 4th Cir. Blog Weekly Roundup
Comments Off on Weekly Roundup: 9/10 – 9/14

By: Matthew Hooker

De Reyes v. Waples Mobile Home Park Limited Partnership

In this case, the Plaintiffs (four Latino couples) had sued the landlord of a mobile home park under the Fair Housing Act (“FHA”). The landlord required all individuals who lived in the park to provide proof of legal status in the United States. The Plaintiffs contended that this policy violated the FHA because it disproportionately impacted Latinos as compared to non-Latinos. In granting the landlord’s motion for summary judgment, the District Court ruled that the Plaintiffs had failed to establish a prima facie case to properly connect the disparate impact to the landlord’s policy. The Fourth Circuit disagreed, noting that the Plaintiffs had provided statistical evidence to demonstrate the disparate impact of the policy on Latinos. The Court also pointed out that while the Plaintiffs’ legal status might cause them to be unable to satisfy the policy, their claim was premised on disparate impact based on race. Thus, the Court clarified that the Plaintiffs’ legal status was essentially irrelevant, although the District Court had suggested otherwise. The Court therefore vacated the District Court’s grant of summary judgment and remanded the case for the District Court to properly consider the burden-shifting analysis under an FHA disparate impact claim.

Sierra Club v. Virginia Electric & Power Company

Here, the Sierra Club had sued Virginia Electric & Power Company d/b/a Dominion Energy Virginia (“Dominion”) under the Clean Water Act. Dominion had stored coal ash in a landfill and in settling ponds. It later detected arsenic leaching from the coal ash and seeping into the surrounding groundwater. Sierra Club alleged that Dominion had unlawfully discharged pollutants into navigable waters (violating 33 U.S.C. § 1311(a)) and violated certain conditions of its coal ash storage permit. After a bench trial, the District Court found Dominion violated § 1311(a) but ruled that Dominion did not violate the permit conditions. Both parties appealed. The Fourth Circuit held that the landfill and settling ponds were not “point sources” under the Clean Water Act, so they were not subject to § 1311(a)’s prohibitions. The Fourth Circuit agreed, though, with the District Court giving deference to the Virginia Department of Environmental Quality’s (VDEQ) interpretation of the permit conditions, since VDEQ issued the permit. Consequently, the Fourth Circuit reversed the District Court regarding the violation of § 1311(a) and affirmed with respect to the District Court’s ruling on the permit conditions.

Tags: