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

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3832022

This
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
jurisprudence

 

Applying
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 https://ift.tt/2Rm7Zfs

This entry was posted in Uncategorized and tagged , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s