If you were a bank, would you want to know whether an applicant for a loan has a history of defaulting on loans beforehand? It’s a rather important bit of information since repayment of the loan is kind of a big deal in making your lending decision. Similarly, if you’re a landlord, you want to know whether a person has been evicted in the past before signing a lease with a tenant, since tenants that fail to pay rent kind of defeats the purpose of being a landlord.

But what if it turns out that perfectly rational and reasonable decisions have a disparate racial impact? The ACLU argues that makes it racial discrimination and should be prohibited.

In a complaint filed with the U.S. Department of Housing and Urban Development (HUD) last week, the group HOPE Fair Housing Center argues that such policies amount to illegal discrimination based on race and sex, given the higher likelihood that black people, and particularly black women, will have an eviction record.

“A housing provider that enforces a policy that denies the opportunity to rent to anyone who has an eviction filing or judgment is disproportionately denying housing to Black households and Black women in particular,” wrote HOPE Deputy Director Josefina Navar in a blog post published by the ACLU about the complaint.

The grievance concerns a “no evictions” policy, where an overbroad rule has, as one would expect, an overbroad impact.

This policy functions as a blanket ban that deters applications from and denies housing to prospective tenants with any kind of eviction history, irrespective of the outcome of an eviction filing and whether any eviction judgment actually resulted, when an eviction filing occurred, the reason for the filing, or any subsequent changes in circumstances or other relevant information.

Is it fair that a tenant against whom an eviction proceeding was wrongfully commenced be banned as a tenant? Is it fair that a prospective tenant who was evicted 30 years ago should suffer the stigma for the rest of her life? Is it fair that a tenant who endured catastrophic medical debt be tainted in perpetuity long after circumstances changed and the tenant, who would never have otherwise failed to pay rent, be unable to rent? There should hopefully be little doubt that most people would agree that a “blanket ban” will produce unfair and unreasonable outcomes, and these outcomes may well have a disparate impact based on race and sex.

But the other side is that a landlord considering renting an apartment isn’t in a position to investigate the details of every proposed tenants eviction circumstances. It would be unduly costly, time consuming and difficult. It would also be unduly intrusive in the lives and affairs of potential tenants.

Does that make the best solution to prohibit landlords from asking about, searching or considering prior eviction proceedings in making the decision to rent? As was painfully learned from the “ban the box” movement to prohibit landlords from learning of a tenants prior  criminal conviction status (while holding landlords liable for renting to felons who do harm to their neighbors), there was a totally foreseeable yet ignored unintended consequence. It produced even greater rejection of proposed black tenants since landlords were left to assume black applicants had criminal records. Information may produce bad results. Lack of information often produces worse results.

The federal Fair Housing Act bars housing providers from discriminating “because of” race and sex, along with other protected classifications like disability, national origin, and family status.

Subsequent court decisions and federal regulations established the idea that prohibition can apply to policies that had a “disparate impact” or “discriminatory effect” on protected classes—even if there’s no discriminatory intent present.

HUD, for instance, has issued guidance saying that blanket policies that exclude tenants who have a criminal record can violate the Fair Housing Act. But critics argue that broad direction leaves housing providers with little guidance on the kinds of policies they can adopt to screen tenant or mortgage applicants.

It may be that landlords, not being held in the highest esteem and often presumed to be very large and very evil corporations who can suffer the occasional deadbeat tenant in the name of ending racial discrimination, don’t evoke much empathy from the unduly passionate. On the other hand, if the business of renting apartments is unprofitable or untenable, then it will cease to be a functional business and people who need apartments are going to be very sad when they can’t find anyplace to rent. On the third hand, of course, people who are denied an apartment because of a prior eviction can’t find anyplace to rent already, so it’s not going to get much worse for them either way.

In the quest to address and eradicate the legacy consequences of racism in housing, there is good reason to ride herd on landlords who discriminate on the basis of race in apartment rentals. And while a knee-jerk “no evictions” rule suffers from obvious overbreadth, refusal to rent to deadbeats is about as race neutral a purpose there can be for a landlord. Money is green, regardless of the skin color of the tenant.

There is a question of whether the disparate impact of prior eviction proceedings is a product of direct racial discrimination or coincidence that the people who fail to pay rent are predominantly black and female. Of course, it can be argued that this, like pretty much everything else, can be linked to discrimination in education and employment, and thus the lack of funds with which to pay rent, but that provides little solace to the landlord who just wants the rent paid.