Every year since 2017, Missouri has lost hundreds of thousands of dollars in federal money as a penalty for the state’s failure to meet the anti-discrimination standards of the federal Fair Housing Act.
In 2017 the legislature passed Senate Bill 43, which changed the definition of discrimination in the Missouri Human Rights Act and created an inconsistency with federal law.
Both state and federal anti-discrimination laws protect people from discriminatory treatment based on protected classes such as race, gender or disability. The inconsistency between the state and federal laws comes from a question of intent versus impact.
Federal law states that even if the intent of a practice is not explicitly discriminatory, if that practice can be shown to impact a protected class disproportionately, then it will still be considered a discriminatory practice and a violation of anti-discrimination law, a concept known as “disparate impact.”
Marissa Cohen, a Missouri housing advocate, spoke on the issue at Empower Missouri’s November anti-poverty summit Monday in Columbia.
“This is typically a housing-related policy or a practice that seems neutral on face value, right?” Cohen said.
“But it has a disproportionate effect on a particular protected class, and that entity, for instance, would then be discriminating against this group of people, because of that impact,” she said. “Regardless of whether the intent was there, the impact was there.”
Prior to 2017, Missouri state law was consistent with federal law. SB 43 changed the state statute so that in order for a practice to constitute illegal discrimination, the protected class must be the “motivating factor.”
On the state level, it is no longer enough for a practice to have a visibly discriminatory impact; it must have a discriminatory intent, which is much more difficult to prove.
“I can show what the impact of your decision is, but I can’t show why you made that decision,” said Sarah Owsley, advocacy director at Empower Missouri.
Multiple attempts have been made to undo the negative impact of SB 43. In the 2023 legislative session, Rep. Doug Mann, D-Columbia, introduced House Bill 505, which would bring Missouri back into compliance with federal anti-discrimination law.
“In my day job I work as a civil rights attorney, and we get a good amount of calls about housing discrimination,” Mann said.
Mann’s bill was referred to a committee, the first step toward becoming law, but made it no further.
Mann plans on introducing the legislation again in the 2024 legislative session.
The lack of compliance “causes a lot of problems for people on the front end when they try to get housing, and on the back end when they come to people like me,” Mann said. “If you don’t have housing, it makes the rest of your life tremendously more difficult.”
This refusal to match the federal standard has led to Missouri being financially penalized on an ongoing basis. According to Empower Missouri, the lack of compliance each year has cost the state approximately $500,000 in federal funds intended to be used to investigate housing discrimination complaints.
Owsley noted that it was counterintuitive to penalize the state in this way, because it means that there are even fewer resources available to address discrimination.
The passage of the law in 2017 prompted the NAACP to issue a travel advisory for the state, calling SB 43 a Jim Crow bill.
“SB 43 legalizes individual discrimination and harassment in Missouri and would prevent individuals from protecting themselves from discrimination, harassment, and retaliation in Missouri,” the advisory read.
“I can’t say what the intent of the lawmakers was,” Owsley said. “The impact has been that it’s much easier to discriminate against tenants in the state of Missouri.
Cohen said, Missouri is the only state that has fewer anti-discrimination protections for housing than what the federal government mandates.
“Whenever these significant changes were made in 2017, one of the kind of biggest arguments on that side of this situation was ‘Oh, we want to reduce frivolous lawsuits. We want to signal that Missouri is open for business,’” said Vee Sanchez, affordable housing policy manager at Empower Missouri.
“But the fact is that all of these other states are able to continue to conduct business and continue to make a profit,” Sanchez said. “So the idea that you have to discriminate against a person to make a profit is kind of ridiculous.”
