The ECOA Discrimination Proscription and Disparate Impact-Interpreting the Meaning of the Words That Actually Are There

摘要

An eloquent jurist observed that statutory "interpretation ... is a process whereby we figure out the meaning of the words that are actually there; interpreting the sounds of silence is a euphemism for rewriting." Although the statutory language should be the starting point in a statutory construction exercise, there has been a tendency to assume that the ECOA proscribes disparate impact discrimination without pausing to examine carefully the text of the ECOA credit discrimination proscription and to consider whether textual differences in employment discrimination proscriptions reflect clearly expressed differences in policy. "Yet there is no rule that all statutes addressing related topics mean the same thing...," Your authors submit that an examination of the text of the ECOA credit discrimination proscription, and a comparison of the language used in the counterpart Title Ⅶ and ADEA discrimination proscriptions, reveals that Congress chose to treat employment discrimination and credit discrimination differently in this respect. There is only statutory silence where an ECOA disparate impact proscription should be found had Congress intended to proscribe discriminatory effects.