Fair Lending—Renewed Emphasis?: CFPB and DFS Issuances Signal Potential Renewed Emphasis on Addressing Sex-Based Discrimination in Lending

Sullivan & Cromwell LLP - April 21, 2021

On March 9, the Consumer Financial Protection Bureau issued an interpretive rule clarifying that the prohibition against sex discrimination in the federal Equal Credit Opportunity Act encompasses sexual orientation discrimination and gender identity discrimination, including discrimination based on actual or perceived nonconformity with sex-based or gender-based stereotypes and discrimination based on an applicant’s associations. Two weeks later, on March 23, the New York Department of Financial Services publicly reported that it found no evidence of sex-based discrimination in the underwriting of the Apple Card co-branded credit card offered by Apple Inc. and underwritten by Goldman Sachs Bank USA. While distinct developments, the interpretive rule and the DFS report likely foreshadow a renewed emphasis in 2021 on fair lending by, at a minimum, these two agencies.

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