Over the past year, many have speculated that the concept of fair lending would be weakened by the U.S. Supreme Court as they considered the "disparate-impact theory of discrimination" in the case of Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. Today, the Court settled the issue. Lenders of all sizes must continue to consider and closely analyze the impact of their pricing and lending policies, as the Court has upheld the use of disparate-impact claims under the Fair Housing Act of 1968.
The focus of today's ruling was whether disparate-impact claims are allowable where a plaintiff alleges discrimination based a defendant’s “facially neutral” practice — and not on specific discriminatory intent or actions. In other words, the Court considered whether a company could be held liable for a neutral policy that has a negative effect on members of a group classified by race, ethnicity or gender. The answer is a resounding "yes".
Fair lending guidelines were, in fact, never "dead," even had the ruling gone the other way. However, expectations are now heightened on lenders of all sizes. Careful review of lending trends and analysis of a company's data must be made a priority. It IS all in the data. Regulators and litigators will be looking at this data to establish evidence of unfair impact on minority groups, and will look to use this publicly available data to establish new claims and significant liability.
There are very efficient and cost-effective tactics on which to build a compliance plan around this issue. The winning solution is to be proactive.