Reading list: Discrimination is Unfair: Interpreting UDA(A)P to Prohibit Discrimination

Stephen Hayes & Kali Schellenberg, Discrimination is
“Unfair”: Interpreting UDA(A)P to Prohibit Discrimination

Article explores a theory that discrimination is a type of “unfair” practice
covered by federal and state laws prohibiting unfair, deceptive (and sometimes
abusive) acts and practices (“UDA(A)Ps”). An “unfair” practice is defined by
statute as something “(1) likely to cause substantial injury to consumers; (2)
which is not reasonably avoidable; and (3) that is not outweighed by
countervailing benefits to consumers or competition.” Discrimination fits
neatly within this statutory language, and its incorporation as an unfair
practice is consistent with the purposes and traditional guardrails around
application of UDA(A)P law, as well as general principles in civil rights


the “unfairness-discrimination” theory would fill important gaps in the
existing patchwork of antidiscrimination laws, which currently leave large
swaths of the economy unregulated and unprotected from a variety of
discriminatory practices, including those with a disparate impact. By taking
seriously the plain language of UDA(A)P law, federal entities like the CFPB and
FTC, state attorneys general and agencies, and in some cases private
individuals, could make great strides towards ensuring that entire markets and
industries are not free to discriminate.

from Blogger

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