If your organization has a policy or practice that doesn't benefit minorities equally, watch out: The Obama administration could sue you for racial discrimination under a dubious legal theory that many argue is unconstitutional.
President Obama intends to close "persistent gaps" between whites and minorities in everything from credit scores and homeownership to test scores and graduation rates.
His remedy — short of new affirmative-action legislation — is to sue financial companies, schools and employers based on "disparate impact" complaints — a stealthy way to achieve racial preferences, opposed 2 to 1 by Americans.
Under this broad interpretation of civil-rights law, virtually any organization can be held liable for race bias if it maintains a policy that negatively impacts one racial group more than another — even if it has no racist motive and applies the policy evenly across all groups.
Equal Outcomes
This means that even race-neutral rules for mortgage underwriting and consumer credit scoring potentially can be deemed racist if prosecutors can produce statistics showing they tend to result in adverse outcomes for blacks or Latinos.
Already, Attorney General Eric Holder has used the club of disparate-impact lawsuits to beat almost $500 million in loan set-asides and other claims out of the nation's largest banks.
In addition to the financial settlements — which include millions in funding for affordable-housing activists — Bank of America, Wells Fargo and SunTrust have all agreed to adopt more minority-friendly lending policies.
Though the administration seeks equal credit outcomes, regardless of risk, across the entire banking industry, it doesn't have to sue every bank to achieve its goal. As a prophylactic against similar prosecution, IBD has learned the American Bankers Association recently advised its 5,000 members to give rejected minority loan applicants a "second look," which it says "can result in suggested changes in underwriting standards."
Also, the administration sent a chill through the financial industry earlier this year when it announced its new credit watchdog agency will join Justice, as well as HUD, in using the disparate-impact doctrine to enforce civil-rights laws.
Consumer Financial Protection Bureau chief Richard Cordray warned companies the agency will "protect consumers from unfair lending practices — as well as those that have a disparate impact on communities of color." He added:
"That doctrine is applicable for all of the credit markets we touch, including mortgages, student loans, credit cards and auto loans," as well as small-business loans.
Read More At IBD: http://news.investors.com/ibd-editorials-perspective/110812-632759-obama-to-wield-bigger-disparate-impact-club.htm#ixzz2DHcIQC7T
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