Consumer Watchdog to Narrow Civil Rights Era Lending Law

The U.S. Consumer Financial Protection Bureau plans to propose in the coming days narrowing a key part of civil-rights era fair-lending regulations as President Donald Trump's administration overhauls protections and rules it says burden companies, according to two people with knowledge of the matter.

The changes to the CFPB's rules implementing the 1974 Equal Credit Opportunity Act (ECOA) follow Trump's April executive order that federal regulators curtail regulations intended to prohibit policies and practices with unintentionally discriminatory impacts.

Curbing so-called "disparate impact" liability, which is common in employment-related cases, removes a tool the government has used for decades to police racial and gender discrimination in housing, education, lending and other areas.

Democrats in Congress have condemned the Trump administration's rollback of disparate impact enforcement, saying it ignores the history and reality of discrimination and will harm the public.

Requiring companies to prevent discriminatory outcomes in practice encourages favoritism and unfairly burdens them, according to the White House, a position rejected by consumer advocates, who say it is a principal tool in reversing ingrained discrimination in the financial sector and housing.

The White House and CFPB did not respond to requests for comment.

The CFPB plans to propose changes that would de-emphasize "disparate impact" as an ECOA requirement, the knowledgeable people said.

The people said the changes will also limit the permissible use of Special Purpose Credit Programs, which allow lenders to offer targeted credit assistance to specific classes of individuals without falling foul of ECOA.

At the encouragement of former Democrat President Joe Biden's regulators, many banks and other lenders in recent years had launched such programs to help address the racial equity gap by expanding credit to communities that might otherwise be denied it.

During Trump's previous term, the Department of Housing and Urban Development scrapped rules barring housing practices with disparate impacts on protected groups, but that was paused by a court, then reversed by the Biden administration.

Stephen Hayes, a former senior CFPB attorney now in private practice, said the disparate impact legal doctrine was a crucial tool allowing the government to uncover intentional discrimination by banks and mortgage originators, which could become much harder if the federal government ceases to enforce it.

"That would lead to a very big gap in our ability to look for, uncover and correct disparate impact, which is hugely important as credit markets have become more opaque and more automated," he said. "It's been a key reason that civil rights laws like the Equal Credit Opportunity Act have been effective, to the extent that they have been effective, in limiting discrimination."

On the other hand, disparate impact is rooted in Supreme Court precedent, which will apply to companies regardless of regulations adopted by the Trump administration, he added.

The CFPB also made changes to rules which bar a creditor from discouraging borrowers from applying for credit, such as through advertising or other marketing materials or statements, the people said. A court in June blocked the CFPB from undoing a settlement with a Chicago-area mortgage lender that officials in Trump's first administration had accused of "redlining" by discouraging would-be loan applicants.

To comply with Trump's April executive order in disparate impact enforcement, the Federal Trade Commission this year amended a complaint against an auto dealer accused of charging higher prices to Black and Latino customers, removing claims of disparate impact.