Disparate Impact and the Tanning Tax
posted by Frank Pasquale
I have previously blogged in favor of a vanity tax, so I was happy to see the health reform legislation included a 10% tax on tanning salons. But not everyone is so pleased to see it:
When an article about the fallout from the tax — which took effect last week — appeared on the Washington Post’s Web site Wednesday, dozens of commenters questioned the tax’s legality. The case can seem deceptively simple: Since patrons of tanning salons are almost exclusively white, the tax will be almost entirely paid by white people and, therefore, violates their constitutional right to equal protection under the law.
Randall Kennedy dismisses that claim out of hand. But I hope the angry tanners join me in endorsing a plan to address the grave injustice here: legal scrutiny of face-whitening creams. Tax tanning, tax lightening, and we may well move closer to a society that can transcend the fickle “beauty bias.”
July 9, 2010 at 10:35 am
Posted in: Health Law, Tax
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Responses (12)
Random 1L - July 9, 2010 at 5:47 pm
Silly, and obviously so. Disparate impact alone does not make out an equal protection claim. Discriminatory intent must be shown. See Gomillion v. Lightfoot, 364 U.S. 339 (1960).
Random 1L - July 9, 2010 at 5:51 pm
To be clear, I was talking about the WaPo quote being silly, not your post.
Frank Pasquale - July 9, 2010 at 6:31 pm
Josh Marshall agrees with you, Random 1L:
http://www.talkingpointsmemo.com/archives/2010/07/up_against_the_tanning_bed_whitey.php
Random 1L - July 10, 2010 at 3:46 am
Yeah, after reading the whole of the WaPo article I saw that the author interviewed someone who’d actually read Washington v. Davis etc. I wonder why nobody points out that there’s plenty of Asians and Hispanics who tan and that the vast majority of whites don’t use tanning booths. For a tax that supposedly targets whites, it does a remarkably poor job of doing so.
bethM - July 10, 2010 at 10:27 am
Random 1L: the whole point of disparate impact versus disparate treatment is that disparate impact is the fact discriminatory intent need not be shown under a disparate impact theory.
Random 1L - July 10, 2010 at 10:53 am
bethM:
The whole point of Arlington Heights v. Metropolitan Housing Development Corp., and Personnel Administrator of Massachusetts v. Feeney, are that a showing disparate impact does not make out an Equal Protection claim under the 14th Amendment. The Court was very explicit on this point in all three cases.
Language from all three cases (sorry, don’t have pinpoint cites handy.)
Washington v. Davis:
“[O]ur cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.”
“We have not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another.”
Arlington Heights:
“Official action will not be held unconstitutional solely because it results in a racially disproportionate impact.”
Feeney:
“The Fourteenth Amendment guarantees equal laws, not equal results.”
“[I]mpact provides an ‘important starting point’ but purposeful discrimination is ‘the condition that offends the Constitution.’”
Disparate impact MAY make out a case under certain statutes. NOT under the 14th Amendment.
Random 1L - July 10, 2010 at 10:54 am
Sorry, meant to put Washington v. Davis before Arlington Heights above.
Managing Board - July 10, 2010 at 2:45 pm
bethM seems to be thinking of a Title VII framework.
Brett Bellmore - July 11, 2010 at 8:44 pm
“The whole point of Arlington Heights v. Metropolitan Housing Development Corp., and Personnel Administrator of Massachusetts v. Feeney, are that a showing disparate impact does not make out an Equal Protection claim under the 14th Amendment.”
And the whole point of a long, long series of legal actions has been to drive home that avoiding disparate impact is the only way to avoid an expensive legal battle, which will cost you dearly even if you’ll probably win. While you’re probably pretty safe if you avoid disparate impact by means of actually resorting to disparate treatment.
Random 1L - July 11, 2010 at 11:09 pm
I may be reading it wrong, but I thought Iqbal v. Ashcroft pretty much made it clear that simply alleging disparate impact without at least making a plausible case for discriminatory intent would get you a Rule 12(b)(6) tout suite.
Linda - October 31, 2010 at 6:31 pm
A safer way we should all start tanning would be airbrush tanning. If you are the type where you feel like you dont look the same without a little bit of color than try a custom airbrush tan it is a lot safer. But there are a lot of airbrush tanning solutions out there that will turn or orange or will make you smell. My airbrush salon uses Natural Glow http://www.airbrushsolution.com is the website where you can get it at. But I love it I stay tanned without the harmful effects of the sun!
Lisa - December 2, 2010 at 3:26 pm
I only tan the sunless way. Its a lot safer and quicker. The color is so much better than what my own skin can do. I have never been able to tan the natural way!
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