The case the racists will make against Thomas Perez: disparate impact and my hometown

As many commentators are noting, Republicans are beginning to gear up to oppose the nomination of Thomas Perez as Secretary of Labor.

While the lunatics are likely to be sufficiently riled up about the "scary black men" at a Philadelphia a voting site, the fact that Perez didn't have any role in that case being dropped is not likely to gain much traction outside their ranks.

What the really serious racists are likely to use against Perez is his embrace of something called disparate impact as a way of measuring whether or not the 1964 Civil Rights Act has been violated. Here's the definition:

Adverse effect of a practice or standard that is neutral and non-discriminatory in its intention but, nonetheless, disproportionately affects individuals having a disability or belonging to a particular group based on their age, ethnicity, race, or sex.

Notice the key word there...intention. In other words, it might not be possible to demonstrate that an employer intends to discriminate. It is sufficient to show that her/his actions have an adverse affect on protected groups.

Its important to note that disparate impact is not in and of itself illegal. But it is potentially grounds for an investigation.

...disparate impact only becomes illegal if the employer cannot justify the employment practice causing the adverse impact as a "job related for the position in question and consistent with business necessity."

This whole idea of intention is something I've talked about before. Due to the fact that racism has been hard-wired into our brains and institutionalized in most of our systems, conscious intent to discriminate has been pretty much left to the KKKers. Most often those with privilege are oblivious to its presence and yet we continue to see its outcome.

This is something I've had to grapple with personally as an employer. For years we bemoaned the fact that we didn't seem to be able to attract qualified applicants of color for job openings. It wasn't until we began to take a look at what skills were actually necessary to engage and work with the youth our nonprofit serves and began changing our expectations that we rid ourselves of the disparate impact.

So Thomas Perez has championed the need to include disparate impact as a way of enforcing the Civil Rights Act. And the case many will point to as a problem actually has its roots in my home town of St. Paul, MN. Therefore I feel the need to provide you with the facts as we're likely to be in the spotlight in the impending fight over his nomination.

Here's the deal...Back in 2002 the City began to aggressively take on slum landlords - charging them with code violations for things like rodent infestation, inadequate sanitary facilities, inadequate heat, and broken or missing doors. Since fixing these violations would have cost the landlords money, some sold their properties.

One of the offenders was a man by the name of Thomas Gallagher. He came up with the ingenious idea to sue the City because their actions had a disparate impact on the ability of African Americans to find low-income housing.

According to Respondents, because a disproportionate number of renters are African-American, and Respondents rent to many African-Americans, requiring them to meet the housing code will increase their costs and decrease the number of units they make available to rent to African-American tenants.

Oh, and I'm sure Mr. Gallagher was really shedding tears over the idea that African Americans wouldn't be able to rent his slumlord properties - < snark off >.

The case worked its way through the courts with the Eighth Circuit Court of Appeals ruling in favor of Gallagher and the City appealing it to the Supreme Court.

It was at that point that Perez and DOJ's Civil Rights Division intervened. Along with former Senator Walter Mondale (who helped write the Fair Housing Act), they negotiated with the City to drop the appeal (by ending their involvement in other cases that affected the City) - which is what finally happened. Here's the press release from the Mayor's office announcing that decision.

The City of Saint Paul, national civil rights organizations, and legal scholars believe that, if Saint Paul prevails in the U.S. Supreme Court, such a result could completely eliminate "disparate impact" civil rights enforcement, including under the Fair Housing Act and the Equal Credit Opportunity Act. This would undercut important and necessary civil rights cases throughout the nation. The risk of such an unfortunate outcome is the primary reason the city has asked the Supreme Court to dismiss the petition.

I want to send a shout-out to my City and to Thomas Perez for making this happen. They're going to be taking a lot of potshots for doing the right thing. We need to have their backs on this one!