IMU2: PROOF - University of Miami



HOUSING DISCRIMINATION SPRING 2008

INFORMATION MEMO ON UNIT TWO

TABLE OF CONTENTS

(A) Unit Two: Covered Topics & List of Relevant Exam Questions

(B) Government Council Votes & Discriminatory Intent

(C) Write-Up of 2/13 Discussion Groups on Burden Shift (Rivers)

(A) Unit Two: Covered Topics

& List of Relevant Old Exam Questions

(1) Proof of Intentional Discrimination by Government Actors

(a) Rizzo Test

(b) Government Council Votes (see below)

(c) Exam Questions 3I 3M 3R

(2) Proof of Intentional Discrimination by Private Actors

(a) Direct Proof

(b) The McDonnell-Douglas Burden Shift, including:

i) Basic Operation

ii) Futile Gesture Theory

iii) Mixed Motives Analysis

(c) Written Assignment II (Review Comments/Model Answers)

(d) Exam Questions 3B 3C 3D 3F 3H 3J 3K 3N 3O 3P 3Q

(3) Dialogue Betw. Courts & Legislatures: Gen’l Awareness, Especially for Question 1

(B) Gov’t Council Votes & Discriminatory Intent

Beginning on the following page, you will find the relevant excerpt from the Fall River case, which includes descriptions of the other cases I mentioned in class. If you have this type of issie on the test, remember that none of these cases are binding outside the jurisdiction in which they were decided. Thus, you can refer to them as persuasive authority but should feel free to argue about whether they are rightly decided and why.

SCOTT-HARRIS v. CITY OF FALL RIVER

134 F.3d 427 (1st Cir. 1997) rev’d on other gds sub nom.

Bogan v. Scott-Harris, 523 U.S. 44 (1998)

SELYA, Circuit Judge. [Plaintiff filed an action under 42 USC §1983 claiming the city council passed legislation eliminating her job due to racial animus arising from her treatment of a white subordinate (Bitcliffe). The opinion included the following discussion of proof of bad intent by the city:] … The baseline principle is well-settled: legislators' bad motives may be proven by either direct or circumstantial evidenceBut this principle speaks to the qualitative nature of the evidence that is gathered; it does not address the quantitative question. That question is best framed as follows: How many municipal legislators (or, put another way, what percentage of the legislative body) must be spurred by a constitutionally impermissible motive before the municipality itself may be held liable under section 1983 for the adoption of a facially neutral policy or ordinance? This is a difficult question, and the case law proves a fickle companion.

Some courts appear to have held that the plaintiff must adduce evidence sufficient to show that a majority of the members of the legislative body acted from a constitutionally proscribed motive before this kind of municipal liability can attach. Often this position is implied rather than specifically articulated.. But some courts have been more forthcoming. In Church v. City of Huntsville, 30 F.3d 1332 (11th Cir. 1994), a group of homeless persons alleged that the city had adopted a policy of excluding them from the community. The plaintiffs based their §1983 action on the acts and statements of one individual on a five-member city council. The court observed that a single council member did not have any authority either to establish municipal policy or to bind the municipality. It therefore examined the evidence against the other four councilors, finding that two had opposed the alleged policy and that two had expressed no views on the subject. The court refused to draw an inference of discriminatory intent from the silence of council members, and rejected the plaintiffs' claim.

Other courts, acting principally in the areas of race and gender discrimination, have not required evidence of the motives of a majority of the legislative body before imposing liability on the municipality under section 1983. Representative of this line of cases is United States v. City of Birmingham, 538 F. Supp. 819 (E.D. Mich. 1982), aff'd, 727 F.2d 560 (6th Cir. 1984). There, the district court held a city liable for violations of the Fair Housing Act … based on the actions of a seven-member municipal commission which had blocked the construction of racially-integrated housing by a four-to-three vote. While opponents of the project had attributed their position to a series of articulated nondiscriminatory rationales, the court looked behind their avowals and ruled, based on a combination of direct and circumstantial evidence, that racial considerations actually propelled the commission's action. The court concluded that the city could be held liable for the commissioners' animus even though there was no proof of the motives of all four commissioners who voted to kill the project; it was enough, the court suggested, if “racial considerations were a motivating factor among a significant percentage of those who were responsible for the city's [rejection of the project].”. Explicating this construct, the court indicated that a “significant percentage” would not have to encompass the entire four-person majority. Noting evidence that racial concerns motivated “at least two of the four members of the majority faction,” the court declared that “that fact alone may be sufficient to attribute a racially discriminatory intent to the City.” 8

Two Massachusetts cases also premise municipal liability on evidence concerning less than a majority of the relevant legislative body. In Southern Worcester County Regional Voc. Sch. Dist. v. Labor Relations Comm'n, 436 N.E.2d 380 (Mass1982), the Supreme Judicial Court (SJC) upheld a lower court's finding that the plaintiffs had been discharged based on their union activity. The SJC declared that “it is not fatal to the [plaintiffs'] claims that only three of the seven members of the school committee made anti-union statements.” The court concluded that the three members' statements, coupled with evidence of bias on the part of the school superintendent (who had no vote), sufficed to support the finding of liability. Similarly, in Northeast Metro. Regional Voc. Sch. Dist. Sch. Comm. v. MCAD, 575 N.E.2d 77 (Mass. App. 1991), a gender discrimination case involving a refusal to hire, the court noted that direct evidence of bias had been exhibited by only two of the twelve members of the school committee. The court upheld a finding of liability based on this evidence and on statements by three other committee members that the plaintiff had been a victim of discrimination and/or had been the best qualified candidate for the job.

The precedent in this area is uncertain, and persuasive arguments can be made on both sides. On the one hand, because a municipal ordinance can become law only by a majority vote of the city council, there is a certain incongruity in allowing fewer than a majority of the council members to subject the city to liability under section 1983. On the other hand, because discriminatory animus is insidious and a clever pretext can be hard to unmask, the law sometimes constructs procedural devices to ease a victim's burden of proof. See, e.g., McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973) (establishing presumptions for use in Title VII cases). Where, as here, a plaintiff alleges that a city's councilors connived to victimize her by the pretextual passage of a facially neutral ordinance, it may be overly mechanistic to hold her to strict proof of the subjective intentions of a numerical majority of council members.

Cognizant of these competing concerns, we eschew for the time being a bright-line rule. Rather, we assume for argument's sake (but do not decide) that in a sufficiently compelling case the requirement that the plaintiff prove bad motive on the part of a majority of the members of the legislative body might be relaxed and a proxy accepted instead. Nevertheless, any such relaxation would be contingent on the plaintiff mustering evidence of both (a) bad motive on the part of at least a significant bloc of legislators, and (b) circumstances suggesting the probable complicity of others. By way of illustration, evidence of procedural anomalies, acquiesced in by a majority of the legislative body, may support such an inference. By like token, evidence indicating that the legislators bowed to an impermissible community animus, most commonly manifested by an unusual level of constituent pressure, may warrant such an inference. The key is likelihood: Has the plaintiff proffered evidence, direct or circumstantial, which, when reasonable inferences are drawn in her favor, makes it appear more probable (i.e., more likely than not) that discrimination was the real reason underlying the enactment of the ordinance or the adoption of the policy?

The facts of this case do not require that we refine the point to any further extent. Scott-Harris has not only failed to prove that a majority of the councilors possessed a bad motive, but she also has failed to furnish enough circumstantial evidence to ground a finding that, more likely than not, a discriminatory animus propelled the City Council's action.

The evidence, viewed most hospitably to the plaintiff, reveals that six of the nine councilors voted in favor of the challenged ordinance and two opposed it. The plaintiff presented sufficient evidence from which a jury could deduce that one of these six, Roderick, along with Mayor Bogan (who did not have a vote), acted out of a bad motive. The plaintiff also produced some glancing evidence apropos of Councilor Mitchell: he and Roderick were friends; Roderick spoke to him about the Biltcliffe/Scott-Harris imbroglio; and Biltcliffe called him, presumably to protest her treatment. The jury could have found from other evidence in the case that Mitchell probably voted in favor of the ordinance (although the record does not eliminate the possibility that he abstained). Even though Mitchell did not testify and the substance of his conversations with Roderick and Biltcliffe are unknown, we assume arguendo that a jury reasonably could infer that Mitchell, too, acted for a proscribed reason.

The remaining gaps in the plaintiff's proof are considerably more difficult to overlook. None of the other seven city council members uttered any untoward statements or engaged in any suspicious actions. The “we must slash the budget” pretext had a ring of plausibility, and from aught that appears, none of these seven individuals had any way of knowing that the position-elimination ordinance would not save the City sorely needed funds. Nor is there strong circumstantial evidence of complicity; indeed, the record tells us almost nothing about the inclinations of the silent seven.11 Moreover, the plaintiff made virtually no effort to adduce such evidence. She neither deposed any of the seven nor called them as witnesses at trial. She did not attempt to show that any of the other four councilors who voted for the ordinance had any basis for doubting the truth of the party line (“we must slash the budget”) or that they possessed ties to Roderick or Bogan, or that they were beholden to Biltcliffe, or that they were hostile to Scott-Harris. The stark fact is that the motivations of the council members -- other than Roderick and Mitchell -- did not receive individualized scrutiny. By any responsible standard, this sparse evidence falls short of providing a proper predicate for a finding of municipal liability.

We do not think it is a coincidence that in every analogous case in which municipal liability has been imposed on evidence implicating less than a majority of a legislative body, substantial circumstantial evidence existed from which the requisite discriminatory animus could be inferred. In City of Birmingham, the evidence showed that the race-based opposition of constituents to integrated housing was widespread, pronounced, and vociferously articulated. After several members who supported the racially integrated development were ousted from office, the commission responded to this unremitting pressure and took the unprecedented step of submitting the proposal to a community referendum. In Yonkers Bd. of Educ., the requisite inference was supported by evidence of massive constituent agitation as well as by “departures from the normal procedural sequence” in respect to the challenged proposal.

In this case no such evidence exists. Nothing suggests the City Council deviated from its standard protocol when it received and enacted the ordinance that abolished the plaintiff's job. Nothing suggests that the vote took place in an atmosphere permeated by widespread constituent pressure. Putting speculation and surmise to one side, it simply cannot be inferred that more than two of the council members who voted to abolish the plaintiff's position did so to punish her for protected speech. We cannot rest municipal liability on so frail a foundation. Because no reasonable jury could find against the City on the proof presented, Fall River's motion for judgment as a matter of law should have been granted.

(C) Write-Up of 2/13 Discussion Groups

on Burden Shift Issues (Rivers)

DQ39. In footnote 19, Cato describes how Congress amended Title VII in the Civil Rights Act of 1991 in response to Price Waterhouse. Should a court applying Title VIII follow the new Title VII standards or Price Waterhouse? Try to develop arguments for each position.

This question was designed to get you to make arguments based on the materials on the Dialogue Between Courts and Legislatures beginning on page 107. The relevant time line is as follows:

T1: Caselaw: Title VIII (FHA) like Title VII

T2: Supreme Court decides Price Waterhouse interpreting Title VII

T3: Lower federal courts apply Price Waterhouse in Title VIII (FHA) cases

T4: Congress amends Title VII to alter Price Waterhouse standards

Some present and prior groups did not address the statutory interpretation question raised by this sequence of events and instead discussed which rule was preferable as a matter of substance. I have summarized the substantive arguments after the statutory arguments below, but make sure you understand both.

1. Statutory Interpretation Arguments for Adopting the Standards of the Civil Rights Act (CRA) of 1991:

a. The standard used in the CRA should be preferred because it was drafted by Congress, not created by a court. We know have a clear statement of legislative intent on this issue. (Danube; Mississippi)

b. Congress may have assumed it was unnecessary to amend the FHA because the FHA is almost always interpreted to follow Title VII as the structure of the statutes is similar. (Amazon; Mississippi)

c. Congress’s focus was on employment when it passed CRA due to intense lobbying by employers, unions, etc., high public interest, and greater perceived need for protection in the employment context. Thus, its failure to amend the FHA was simply an oversight. (Amazon)

d. Congress viewed the CRA as correcting the Supreme Court, rather than changing Title VII, so it assumed that courts would understand it meant to discredit Price Waterhouse entirely. (Mississippi). It saw no need to amend the FHA because the Supreme Court hadn’t ruled on the FHA in Price Waterhouse (or elsewhere).

e. Lower court decisions applying Price Waterhouse to the FHA were not important enough (not notorious; no important parties) for us to conclude anything from Congress’s failure to overrule them.

2. Statutory Interpretation Arguments for Retaining the Standards from Price Waterhouse:

a. Congress did not amend the FHA, which it would have done if it intended the CRA standards to apply to the FHA (Amazon; Danube, Mississippi, Nile), particularly since 7th Circuit already had applied Price Waterhouse to the FHA. (Danube) “Congressmen are lawyers and they know that changing Title VII but not Title VIII [might create] an ambiguity.” (Amazon)

b. Not amending Title VIII could be a product of compromise between legislators to get the CRA passed or of lobbying by interest groups. (Amazon) [Good idea, but no evidence that this is so.]

c. Because there might be different issues applying these standards to housing as compared with employment, we shouldn’t assume Congress intended the changes to Title VII to apply to the FHA. (Amazon)

d. Cato held in 1991 that Price Waterhouse continues to govern. If Congress was unhappy with Cato, it could have amended the statute by now.

e. Idea that FHA follows Title VII relies heavily on common language, which is no longer the case after CRA, so courts should not follow the amended version of Title VII.

3. Substantive Merit of the Price Waterhouse Standards v. the CRA Standards:

a. Arguments favoring the CRA Standards

i) The recovery of attorney’s fees if there was improper discrimination used in the decision-making process serves to encourage attorneys to take these cases. (Danube; Nile; Rhine) One prior group went on to add that, if by adopting the CRA standards, courts “made housing discrimination a big money area it would encourage people to bring more of these cases, set more precedents (of which there are not many), and with the creation of this awareness hopefully end with less discrimination in the area.” This may overstate the significance of this legal rule, which probably provides some incentive for lawyers to take some marginal cases, but is unlikely to cause a massive reallocation of resources.

ii) The statutes exist to prevent discrimination from being a factor in housing decisions, and where it plays a role, there should be a remedy. (Rhine)

iii) It’s too easy for a defendant to avoid liability under Price Waterhouse by alleging a legitimate motivating factor.

b. Arguments favoring Price Waterhouse:

i) If the defendant would have rejected a potential tenant even if the improper discriminatory factor had not been present, then the improper discriminatory factor did not affect the result, plaintiff did not suffer an injury from discrimination, and there should not be a remedy.

ii) The CRA standards make it too easy for rejected applicants to make FHA claims and will lead to unnecessary litigation. (Nile)

iii) Because of both of the prior points, adopting Price Waterhouse protects legitimate interests of housing providers. (Rhine)

4. Miscellaneous Points:

a. Make sure you are clear about the difference between the two standards. For both tests, once the finder of fact has decided that the defendant has one legitimate motive and one discriminatory motive, the defendant has the burden of proving that it would have acted the same way absent the discriminatory motive. If the defendant fails to meet this burden, it loses outright. If the defendant meets this burden:

• under Price Waterhouse, the defendant wins outright.

• under the CRA, the plaintiff still “prevails,” but the statute limits the available remedies to declaratory relief and damages for the discrimination itself. However, the defendant cannot be forced, e.g., to allow the plaintiff to have the housing opportunity in question or to pay damages for having to find housing elsewhere.

Confusion about the standards showed up in several arguments:

• Nile argued that, “Awarding attorney’s fees may mean the judiciary will solve issues of discrimination on a case-by-case basis, rather than the legislature enacting a broad-based order against discrimination.”

• One prior group argued that the CRA test is better because it “provokes a deeper investigation into the true motive behind [the defendant’s actions] and attempts to answer the question as to whether the rejection was purely motivated by racial discrimination.

• Another prior group argued that the CRA test “was more of a bright line rule” and the Price Waterhouse test “allows for [more] leeway and argument….”

However, all these arguments are problematic because, before applying either test, the fact-finder undertakes an identical inquiry. The difference between the tests lies only in which remedies are applicable.

b. One prior group argued that the CRA standards should apply

because discrimination can take shape in several forms, albeit concurrently. For example, if it is unavailing that a person was discriminated against, in a case of a black female perhaps, and she may not be able to garner relief just for her race despite being prejudiced against for both, then she still has a chance to recover for her gender.

The group has identified an important problem: courts often have trouble dealing with discrimination that seems to be aimed at the intersection of two protected characteristics. For example, if the defendant accepts white women and African-American men, but seems to disfavor African-American women, a court may be reluctant to find either race or sex discrimination.

However, I don’t think that the choice of rule for mixed motive cases will have much affect on this concern. Mixed motives analysis addresses cases where the defendant has one legitimate motive and one discriminatory motive (as opposed to two discriminatory motives). To prevail under either rule, the plaintiff will have to show that at least one protected characteristic was a motivating factor in the defendant’s decision, and that seems to be the step that courts have trouble with when two characteristics are at issue.

c. Get into the habit of making the logic of your arguments explicit. One prior group made three points, none of which seemed to me clearly to support their conclusions:

i) Like college sports and professional sports, although there are differences between housing and employment, they are sufficiently similar to be treated alike, therefore apply the CRA.

ii) Employer-employee relationships are sufficiently different than landlord-tenant relationships that there are different expectations, therefore Price Waterhouse should apply.

iii) Different sessions of Congress produced the statutes in question, so it is hard to pinpoint legislative intent, therefore Price Waterhouse should apply.

The first two points recognize the concerns addressed below in DQ40; housing and employment are alike in some respects and different in others. However, your view of whether they are more or less alike doesn’t necessarily help you resolve the issue here. After all, the decision to apply Price Waterhouse to housing cases in the first place was based on the assumption that housing is similar enough to employment that the same rules should apply. If you disagree, you might argue that the courts should make an independent decision about the best rule and ignore both Price Waterhouse and the CRA.

The third point raises an important difficulty with any problem where different sessions of a legislative body have acted in ways that arguably are relevant to interpreting a statute: Whose intent matters more: the legislature that drafted the statute in question or the legislature that has more recently acted in the area? However, merely noting this difficulty does not support any particular position. In order to make an argument of this type supporting either the CRA or Price Waterhouse, you would need to discuss which session of Congress you think should matter the most and explain how that resolves the legal issue here.

 d. One prior group submitted the following argument:

If you modify Title VII, do not touch Title VIII; go with what is easier to modify and send it back to the legislature. This is an area for the legislature and not for the courts to enter. The footnote also mentions that the courts usually apply Title VII to VIII anyway, so it seems that this might have been a pointless legal maneuver.

This seems to me to misunderstand the role of the courts and the legislature here. Prior to 1991, none of the relevant statutes explained what to do if a defendant could prove that it was motivated by both legitimate and discriminatory reasons. The courts had to resolve who would win those cases (we have no procedures for sending pending federal cases to Congress for advice). Therefore, the courts developed the Price Waterhouse standards for Title VII cases. Given those standards, courts eventually faced cases that forced them to address whether these standards also applied to the FHA.

It is not clear who the group is addressing in its argument. The courts interpreted the statutes & Congress, in response, amended Title VII but not Title VIII. The courts then had mixed motive cases under the FHA that required them to decide whether Congress’s changes applied to the FHA as well. I think this was not a “pointless legal maneuver” but a difficult statutory interpretation question: Did Congress assume that courts would continue to interpret the FHA to follow the modified version of Title VII, or does the addition of language to Title VII alone mean that the FHA should no longer follow it?

40. The lower federal courts adapted the burden shift from Title VII caselaw. Are there differences between the two contexts that might make it more (or less) applicable in the employment context than in housing? What other differences between housing and employment do you see that might suggest different treatment in anti-discrimination law?

Prior classes discussed similarities as well as differences, so I have included some of these in the summaries below. Some prior groups incorrectly suggested the relevant legal standards differ for employment than for housing; with the possible exception of the mixed motives problem discussed in DQ39, the standards appear to be the same.

A. Housing, Employment & the Burden-Shift

1. Similarities Suggesting Similar Legal Treatment

• Because of the quick and uninformative nature of the process, a rejected applicant ordinarily is unlikely to become aware of discrimination. Moreover, the landlord and the employer both have much better access to relevant information such as the history of integration at the facility. Thus, putting some burden on the defendants may make sense. (Brahmaputra)

• One prior group of students answered, “The shift is not exclusively about employment issues, but about discrimination issues. Because the processes involved are strongly analogous, and the opportunity for discrimination arises in similar fashion, it seems that the prima facie elements could have originated in either context, and are thereby applicable in both contexts.”

• Could view rental as equivalent to “hiring” someone to care for a space in a building and make regular rental payments, so it makes sense to treat liker employment. (Brahmaputra)

2. Differences Suggesting the Burden-Shift is More Appropriate for Employment

• Differences in the Selection Process:

o There often are a much wider range of legitimate explanations for an employment decisions. (Brahmaputra; Danube) Employers are likely to care about a more complex set of qualifications than housing providers. (Columbia; Nile) The differences between applicants may be more subtle (Brahmaputra) and thus it is easier for an employer to say “you just aren’t right for the job. (Columbia) The wider range of possible explanations may make the burden shift more necessary to force the employer to articulate which reason it is relying on. (Columbia; Rhine) The wider range of explanations also makes the use of testers (a possible alternative to the burden shift) much more difficult.

o In housing there usually is no prior history or relationship between the plaintiff and the housing provider. By contrast, in employment, the plaintiff’s work history, the existing relationship with the employer (including the politics that naturally arise in a work atmosphere) may provide a number of reasonable alternative explanations to account for denying someone occupational advancement. (Nile)

o Hiring employees is often a competitive process. By contrast, “[l]andlords typically do not interview lots of qualified renters and then choose a favorite; they give the available housing to the first qualified applicant. For this reason, it is often easier to [identify] discrimination in … housing domain than [in] employment. (Columbia). I think this is frequently true, although some landlords are able to review multiple applicants before choosing one.

• In employment cases, the defendant is giving money to people like the plaintiff; in housing, the defendant is taking money for providing a service. Because the employer is paying, it arguably is entitled to more discretion in making decisions, and the burden shift recognizes that there can be many legitimate reasons for rejecting an applicant. (Nile)

• Because of fear for their jobs, other employees with relevant information may be unwilling to testify or provide evidence, thus making the burden shift more necessary.

3. Differences Suggesting the Burden-Shift is More Appropriate for Housing

• Employment discrimination often arises in the context of termination or an application for a promotion or transfer. Because those cases arise in the context of an ongoing relationship and a regular set of co-workers, discrimination may be easier to detect because of the plaintiff and co-workers are familiar with company practices and with the way other employees are treated. (Amazon; Ganges) By contrast, “[in housing, a person may never know they were discriminated against.” (Ganges) Thus, it may be more appropriate to shift the burden to the defendant in housing.

• Discrimination in employment may be easier to prove because the decisions often are being made by an organization that keeps records (as opposed to the individual owners making housing decisions) so the evidence may be more widespread. (Danube; Ganges; Nile; Rhine). By contrast, in housing cases, there may be more need to rely on testimony of the parties. (Brahmaputra). The greater availability of direct evidence in employment suggests the burden shift is more necessary for housing. (Ganges) The Brahmaputras suggested this difference makes the burden shift more applicable for employment, but I think the difficulty of proof in a housing case makes it more important to force the defendant to articulate legitimate reasons. Also, note that large housing providers likely will keep some records. E.g., Marable.

• In employment, the urge to discriminate may be tempered by the desire to get a competent employee for the business. (Brahmaputra) By contrast, people may have stronger urges to discriminate in housing because of the importance they place on the type of neighbors they want living in their community. They are more likely to rely on personal considerations rather than objective qualifications. (Brahmaputra) Because of this tendency to discriminate in housing, and because everyone needs housing, the burden shift is especially important to help eliminate housing discrimination.

• Some past groups suggested that the wider number of plausible explanations available to the employer made the burden shift less appropriate in the employment context. The theory seems to be that more plausible explanations may mean that discrimination is less frequent. I’m not sure I agree that discrimination is less frequent in the employment context or that a lower frequency would make the burden shift less appropriate. The best version of this argument I saw was along the following lines: The burden shift incorporates the presumption that the denial of a minimally qualified applicant is the product of discrimination. This presumption makes much more sense in housing because the qualifications are simpler.

• There is a common understanding that a diverse work environment is good, but that belief has yet to have crossed over into the housing realm. There are few proponents of a diverse “gated community.” Thus, discrimination may be more common and the burden-shift more needed in housing.

B. Other Comparisons Between Housing and Employment

1. Similarities:

• The process of getting a job or a rental unit goes by the same name (“application”), often includes similar steps like application forms, review of qualifications, and interviews, at the end of which, the landlord/employer has power to make a decision about the applicant without having to explain.

• People are often denied for similar reasons (unqualified; value judgments; personal dislike; discrimination).

• In both cases, the smaller the enterprise, the more that subjective decision-making seems justified.

2. Differences:

• Discrimination usually happens before you get the housing but in employment the discrimination often would happen after you get the job in the context of promotions or terminations. (Amazon). This may mean that bringing a lawsuit is more uncomfortable because it may harm ongoing relationships with bosses and fellow employees. (Amazon)

• Because there are so many factors involved with employment hiring, a rejected candidate for employment is more likely to accept the denial as not being on the basis of unlawful discrimination. As noted above, this is not true for rejected applicants for job transfers and promotions within a company.

• In employment, objective concerns are about skills and qualifications, whereas in housing, the primary objective concern is money. (Columbia; Nile) (cf. Rhine: Jobs are more subjective, housing is more concrete, background check, credit, etc.). There are many skills the company can look for, whereas in housing there’s more of a quantifiable measure. For example, for housing there may be a requirement that the tenant earn 3 times the monthly rent. As a result, rejection in employment is more likely to be a blow to self-esteem. (Nile)

• Certain employment environments are the result of industry trends that tend to look like discriminatory practices are taking place. For example, there tends to be more men in engineering positions than females. However, the hiring of a male over a female may be the result of the composition of the pool of applicants, than the result of discrimination. This is true in some housing settings as well, as where either price or location of a housing opportunity yields a pool in which, e.g., some racial/ethnic groups are disproportionately represented.

• When you apply for a job, all you send is a resume, whereas in housing you can see what they look like. Therefore a first impression is made before an employer can even see that the applicant is a member of an ethnic or racial minority, has a disability, etc. Certainly the nature of the application process can make some forms of discrimination more likely. However, there are many jobs for which an interview is required and, at some large apartment complexes, applying for rental housing may not involve face-to-face contact with the decision-maker.

• In a work setting there is more professional limited contact, rather than much more intimate relationship with people living around you, which can include the landlord. (Amazon: Ganges; Nile) This is often true, but can vary with particular jobs and particular housing arrangements.

• The landlord has a key to your apartment making safety issues significantly more important a factor than a suit against an employer. Again, I think this only matters if you are still in a business relationship with the landlord (which is unlikely if you’ve been denied housing altogether), unless you are claiming harassment of some sort.

• It is harder to get rid of a current tenant than a current employee. For the most part, this is correct, although most housing discrimination cases involve denial of housing, not evictions.

• There tend to be stricter standards of conduct in the workplace than in the housing context. (Ganges). E.g., drug tests generally are not required for housing yet they are for some jobs. Relatedly, you probably are “more likely to exhibit negative behavior at home.” (Rhine)

41. Look at the language of 42 U.S.C. §§1982 and 3604(a). Is it appropriate for the court to create an elaborate scheme like the burden shift to interpret the language in those statutes?

A. Arguments that it is appropriate:

• Courts usual role with regard to statutes is to interpret them as best they can to address gaps left by the legislature. (Rhine) Here, the statutes don’t provide much information on how these causes of action will proceed. The burden shift is a useful way to fill that gap. (Amazon; Mississippi). It is “[n]ot so much that they are adding onto the legislation but more that they are setting up a framework to analyze the cases….” (Mississippi).

• The burden shift seems consistent with Congressional intent to facilitate actions by the victims of housing discrimination. Note that merely arguing that the burden shift helps plaintiffs is insufficient to justify the elaborate procedures involved without some further defense of why it is important to help plaintiffs. Here, Congressional intent provides such a defense.

• Developing burdens of proof and similar procedures is particularly within the expertise of the courts. The courts have to try the cases, so are in a better position to determine this type of rule. (Mississippi; Nile) Thus, courts typically flesh out statutes in this way. (Brahmaputra). This is an efficient division of responsibilities between Congress and the courts. See Miller opinion in Speluncean Explorers. (Mississippi; Rhine).

• Congress could easily amend the statute to change the burden-shift if it wished, so it is not inappropriate for the courts to try it. (Mississippi; Rhine). Congress is obviously comfortable with it because it has not interfered with the existence of the burden shift after 30 years.

• Some students argued that the burden-shift is necessary to provide a remedy for plaintiffs. (Brahmaputra; Mississippi). This is not literally true; plaintiffs can win using direct proof alone. (See Marable). You might argue that the burden-shift is necessary for plaintiffs to get sufficient or effective remedies, but that would be a much more complex and substantive argument.

B. Arguments that it is not appropriate:

• Federal courts are unelected bodies whose job description does not include legislating, so should be hesitant to significantly extend or modify a statute passed by a democratically elected legislature.

• Although a court clearly has the power to interpret statutes to resolve ambiguities, the burden shift goes much further than a mere interpretation because it changes the operation of the statute and will often determine who wins the lawsuit.

• Nothing in the statute mentions the burden shift. (Columbia) Where statutory language is relatively straightforward, the court should not add to it. Keen opinion in Speluncean Explorers. (Mississippi) Otherwise, it may be adding elements to the cause of action that Congress did not intend. (Rhine)

• One prior group suggested that it was appropriate to leave this kind of interpretation of the statute to the relevant agency. This is a plausible position, although McDonnell Douglas itself was a Supreme Court decision and its earliest extension to the housing context took place before HUD had regulatory authority.

3. Strengths and Weaknesses of the Burden Shift: Although the question asked you to focus on the appropriate roles of Congress and the courts, some groups also discussed the strengths and weaknesses of the burden shift itself. Here are some of their points:

1. Strengths of the Burden Shift

• Helps to limit the number of frivolous lawsuits. (Ganges)

• Helps to level the playing field between landlords and tenants by forcing landlords to explain their actions with specificity. (Columbia)

• Allows plaintiffs to proceed without rare direct evidence and without access to evidence that is likely to be in the possession of the defendant. (Ganges)

• Fair to both plaintiff and defendant because it gives both an adequate opportunity to be heard (Brahmaputra; Columbia; Ganges) and because it standardizes the procedures. (Rhine)

• Structured procedure may help limit the effect of court biases in cases involving race, etc. Clever idea.

2. Weaknesses of the Burden Shift

• Some people may not meet the prima facie requirement although they were truly the victims of intentional discrimination.

• Because the defendant’s burden is so light, it doesn’t provide much benefit for the plaintiff.

• The burden on the plaintiff may be too much, to the point of discouraging claims that should be brought to court.

D. Problematic Responses:

(1) One prior group suggested that the burden shift might be unconstitutional because its creation was outside the authority of the federal courts. It is highly unlikely that creating a procedural framework for the operation of a federal statute would be considered beyond the constitutional authority of a federal court. The “remedy” for the courts arguably overreaching in this way, would be for Congress to amend the statute to make clear it did not want the burden shift.

(2) “Using the burden shift for housing might not be useful because it is already regulated via statute. For employment there are less specifics in the statute so you might need the burden shift.” Two concerns:

(a) The burden shift is not really a separate set of regulations, but an interpretation of the statute clarifying how it operates.

(b) The employment statutes are almost identical in terms of their specificity.

8 This rationale finds succor in United States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1221-23 (2d Cir. 1987), cert. denied, 486 U.S. 1055 (1988), in which the court of appeals held the city liable for Fair Housing Act violations. Though the city's liability derived from the actions of a 12-member city council, the court focused almost exclusively on statements by the mayor (who had only one vote on the council) and race-based opposition expressed by a few other councilors. The court did not premise its decision on a requirement that a majority of the council had acted out of impermissible motives.

11 The record does show that one council member who voted against the ordinance, John Medeiros, called the plaintiff and asked why “they” were trying to get rid of her. But the plaintiff provided no insight into who “they” might be and no evidence that “they” comprised a majority, or even a significant bloc, of the City Council.

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