Elements of Discriminatory Intent as Related to Debt Collection Practices

Racial Discrimination in Debt Collection by Kyle Warbinton

There is evidence of widespread racial discrimination in debt collection.  Unfortunately, racial discrimination claims related to debt collector action face uphill battles in court due to the difficulty of proving discriminatory intent and the fact that only one or two percent of debtors obtain legal representation.  Although there are many political and public policy actions that could improve debtor outcomes in abusive and racist collection actions, increasing legal representation for debtors in 42 U.S.C Section 1981 and Fair Debt Collection Practices Act (FDCPA) claims related to racial discrimination would certainly help these plaintiffs appropriately allege their grievances and succeed in the courts.  Unlike Section 1981 claims that are difficult to succeed on as proving intentional and purposeful racial discrimination is challenging, FDCPA harassment or abuse claims do not require intent but focus on whether the "natural consequence" of conduct in question was abusive or harassing.  Plaintiffs must present strong prima facie FDCPA claims that are air-tight as to the Act's other requirements (e.g., that the defendant is a "debt collector") so that courts can address racial discrimination as abuse or oppressive under the FDCPA.  

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