How do you Prove Discrimination?

It is one thing to suspect that an onsite manager is discriminating against a tenant, and it is quite another thing to actually prove that discrimination is actually occurring or has occurred. How is discrimination proved? Is it a case of Justice Stewart’s “I know it when I see it”? Maybe sometimes, but herein we will look at a few ways to prove discrimination.

First, the Federal Rules of Evidence state that evidence of historical discrimination may be admitted to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Fed. R. Evid. 404(b)(2). But what does that look like practically? By way of example, if an apartment complex has historically discriminated against a particular protected class, for example, families with children, then that evidence can be presented to prove that the complained of action against a family with children is evidence of its intent to discriminate against the family with children that is currently complaining about discriminatory treatment.

One problem that is faced when trying to use this type of evidence is that it is not readily available. As is common knowledge, most lawsuits settle. As a result, there is no finding of discrimination which can be used as evidence in a subsequent lawsuit. If the previous lawsuit is recent, then witnesses of that discrimination can be interviewed, and they may be able to testify about incidents of discrimination, but historical discrimination is simply not common place. Be that as it may, it is always wise to check to see if the party that you believe is discriminating has a past record of discrimination. If so, then you’ve found some great evidence.

Next, discriminatory acts towards third parties may be used to show actions taken against the plaintiff were motivated by discrimination. Metoyer v. Chassman, 504 F.3d 919, 937 (9th Cir. 2007). This is the type of evidence that can be helpful if there was no finding of discrimination in a prior case. This type of evidence, however, can be difficult to acquire because tenants who are still living in a complex that discriminated against them are reluctant to testify against their current manager for fear of retaliation. And tenants who have vacated a complex can be tough to track down, not to mention the fact that they may be apathetic now that they are no longer impacted by the discrimination. Nevertheless, if a third party were discriminated against and is willing to testify about it, and that third party shares the same protected class as the plaintiff, then this evidence can be extremely compelling. For when a similarly-situated person says, “That happened to me, too,” then it serves as great evidence of discrimination.

Departures from normal procedures likewise may afford evidence that improper purposes are playing a role. Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 267, 97 S.Ct. 555 (1977). I once reviewed the tenant files for a large apartment complex for evidence of discrimination against families with children. After reviewing several files, it became obvious that the complex required certain information and documentation from prospective new tenants. But whenever I reviewed an African American’s tenant file, their files contained additional documentation, most notably Social Security cards and copies of their drivers’ licenses. No such documentation showed up in any white tenants’ files. It was disturbing. In short, there was a departure from the normal procedure for determining whether a tenant was qualified to rent whenever an African American submitted an application to rent. The landlord, briefly stated, required more of African Americans to become tenants. It didn’t exclude prospective African American tenants altogether, but it definitely required more of them. That, my friends, is what is known as discriminatory treatment.

Substantive departures also may be relevant, particularly if the factors usually considered important by the decision maker strongly favor a decision contrary to the one reached. I once ran across an apartment complex policy that mandated that tenants be served late notices if their rent was more than three days late. Based on the documents that I reviewed, the complex followed the policy to the tee when it came to families with children. But when single adults were more than three days late on their rent, then it was never a problem. The decision maker (i.e., the manager), candidly speaking, usually departed from the company’s policy of issuing late notices whenever a single adult was the offending party. I subsequently called many of these single adults, and I was told that they simply had to let the manager know that they were going to be late, and it was “no problem.” When I spoke to the tenants who had children about their late payments, they described the manager as merciless when it came to paying late. This is the type of discrimination that can be difficult to detect, for it looks like the manager is simply enforcing a reasonable rule. Let me encourage you to dig deeper, particularly when you, like Justice Stewart, sense that something is not right.

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