Discretion and Discrimination In Seattle


A variety of state and federal laws prohibit discrimination in property rentals, but that wasn’t good enough for Seattle. As long as there was discretion, there was the possibility of discrimination, and so they enacted a law to prevent implicit bias by requiring landlords to rent to the “first qualified” potential tenant.
The goal is to ensure prospective renters are treated equally, according to Councilmember Lisa Herbold, who championed the policy. When landlords pick one renter among multiple qualified applicants, their own biases — conscious or unconscious — may come into play, she says.
There are questions, even after a tenant meets the basic “qualifications” for renting, such as credit rating, ability to pay* and prior landlord recommendations. Prior criminal history cannot be a question, though, as Seattle has forbidden landlords from running a rap sheet. Chief among them is that landlords lose any discretion for intangible qualifications, from a tenant with a bad attitude to one whose personal hygiene could present a problem for other tenants.
The libertarian law firm, Pacific Legal Foundation, is challenging the law.
If government can strip you of choice just because unconscious bias might influence that choice, its power would have no bounds. But that is precisely what Seattle is doing to its landlords. In Yim v. City of Seattle, PLF is challenging an anti-discrimination law that prohibits landlords from choosing their own tenants. Today, we filed our opening brief to ask the Court to invalidate this oppressive and brazen violation of fundamental rights.
Whether this constitutes an unconstitutional taking is unclear. But that this reflects a new level of regulatory creep is certain. At Volokh Conspiracy, Ilya Somin makes the case that this crosses the line.
It is surely true that landlords sometimes engage in subconscious discrimination. Indeed, the same is true of a wide range of people engaging in all kinds of transactions. It does not follow, however, that eliminating landlord choice is the right answer. Doing so is likely to harm tenants more than it benefits them. If landlords cannot rank potential tenants based on factors such as reliability, credit history, their treatment of previous rental properties, and so on, the predictable result is that they will either put fewer properties on the market to begin with, charge higher rent, increase security deposits, or some combination of these and other measures that make rental housing more costly. This likely to be particularly true of landlords who own properties in poor and minority neighborhoods, where landlords believe the risk of nonpayment or other problems is likely to be unusually high.
Will this regulation undermine the rental market in general, and for the poor and minorities in particular, if landlords believe they will be forced into renting to “undesirable” tenants? It’s hard to imagine that people with property to rent will let it lie fallow because of this regulation. They make money renting, and making money is why one becomes a landlord. Holding rentals off the market makes no sense, as they will produce no income.
Whether or not Seattle’s policy is illegal, it potentially sets a dangerous precedent. If the state can impose severe restrictions on liberty and property rights in order to curb subconscious bias, there would be few meaningful limits to its power. Very few if any types of decisions are completely free of cognitive errors of this type. They can occur in almost any economic or social transaction.
And this lies at the core of the opposition to this deep regulatory incursion, that it’s one more step into governmental micromanagement of individual freedom. There will certainly be instances where the “first come, first rent” regulation results in problems, particularly for small buildings where getting along with one’s neighbors is at a premium.
There is no magic to landlords’ assumptions about who will be a better tenant than someone else. And many landlords don’t really care, as this is how they manage their rentals already. But the question of whether this new intrusion into individual discretion, property rights, personal choices, will lead to ever-deeper regulation of people’s discretion to “curb subconscious bias” is a serious one.
Renting apartments is a business, like any other. Businesses are subject to regulation. You may believe they shouldn’t be, but they are. The law allows it and that’s really not a subject for serious debate. However, regulating business for implicit bias, as opposed to discrimination, is a very different animal. Since implicit bias, itself a controversial concept, can’t be detected per se (because it’s implicit, see?), the only means of combating it is to prohibit discretion at all.
And if individual discretion becomes a legitimate subject of business regulation, with the solution being to prohibit all individual discretion, the consequences could be bizarre. And even though this comes as a business regulation, regulation tends to transfer over to the personal realm eventually, as demonstrated by Title IX’s impact.
Is the “first come” rule for Seattle rentals the end of the world? In that instance, probably not. But regulatory creep has happened over and over, and individual discretion is a core aspect of individual freedom, even when it comes to how one chooses to conduct one’s business.
Is the potential benefit of ending implicit bias worth losing the ability to make business choices based on one’s personal discretion? Perhaps. But will this prove to be the acceptable baby step that leads inexorably to the next one, and the one after that, which ends up socially engineering our every choice? That’s the question that should be considered now, as it will be too late once personal discretion has been lost to good intentions.
*The law prohibits discrimination based on the source of rental payments.
The Seattle City Council approved an ordinance Monday banning discrimination by landlords against renters with alternative sources of income, such as Social Security benefits, veteran’s benefits, unemployment insurance, child-support payments and other assistance programs.

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