An Empirical Analysis of Sexual Orientation Discrimination

58 Pages Posted: 29 Mar 2018 Last revised: 25 May 2018

Shahar Dillbary

University of Alabama School of Law

Griffin Sims Edwards

University of Alabama at Birmingham - Department of Marketing, Industrial Distribution & Economics

Date Written: 2018

Abstract

This study is the first to empirically demonstrate widespread discrimination across the United States based on perceived sexual orientation, sex and race in the mortgage lending process. Our analysis of over five million mortgage applications reveals that any FHA loan application filed by same-sex male co-applicants is significantly less likely to be approved compared to the white heterosexual baseline (holding lending risk constant). The most likely explanation for this pattern is sexual orientation based discrimination — despite the fact that FHA loans are the only type of loan in which discrimination on the basis of sexual orientation is prohibited.

Moreover, we find compelling evidence to support the intersectionality theory. According to this theory when sex and race unite, a new form of discrimination emerges that cannot be explained by sexism and racism alone. The data unequivocally indicates that the race and sex of same-sex applicants play a role and result in a unique and previously unobserved pattern. This discriminatory pattern plagues every region in the U.S., and it transcends party lines (i.e., it is present in red, blue and swing states). Furthermore, upending conventional wisdom, the data reveals that big banks discriminate at the same rate as small banks, and lenders in urban environments are as discriminatory as rural lenders. Prior studies failed to reveal this phenomenon due to data constraints and design flaws. These studies relied on testers posing as applicants, and none could investigate how intersectionality influences lending practices.

Despite the grim results, a silver lining exists. We find that the pattern of discrimination diminishes or disappears in states and localities that pass anti-sexual orientation discrimination laws. These findings have important and timely implications. In 2017 a new bill offering nationwide protection from sexual orientation credit discrimination was introduced. The same year has experienced tectonic changes in Title VII jurisprudence. Our study can reinvigorate the debate and help policy makers tailor remedies that would correct the discriminatory pattern this study unravels.

Keywords: empirical analysis, discrimination, private remedies, regulatory action, sexual orientation, gender identity, sex, race, mortgage, lending, fha loans, fair housing act, equal credit opportunity act, title VII, econometrics, difference-in-differences, field and pair studies, bigotry

Suggested Citation

Dillbary, Shahar and Edwards, Griffin Sims, An Empirical Analysis of Sexual Orientation Discrimination (2018). 86 U. Chi. L. Rev. 1 (forthcoming 2018); U of Alabama Legal Studies Research Paper No. 3152015. Available at SSRN: https://ssrn.com/abstract=3152015

Shahar John Dillbary (Contact Author)

University of Alabama School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

Griffin Sims Edwards

University of Alabama at Birmingham - Department of Marketing, Industrial Distribution & Economics ( email )

The University of Alabama at Birmingham
1720 2nd Ave South
Birmingham, AL 35294
United States

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