Ensuring Fairness in the Age of the Algorithm

Disparate impact analysis is making it easier to prove discrimination by allowing the courts to find landlords, lenders, employers, and others liable for discrimination if data analysis can show that these defendants adopted policies with harmful effects on protected classes even if intent cannot be proven. However, an upcoming Supreme Court case has called this technique into question and will decide whether disparate impact claims can be brought under the Fair Housing Act. This provides a useful reminder of the importance of this valuable tool in the fight against discrimination and offers an opportunity to reflect on how it might be strengthened and improved.