Voglio sapere a riguardo di…

Federal Register / Vol. 86, No. 49 / Tuesday, March 16, 2021 / Rules and Regulations
jbell on DSKJLSW7X2PROD with RULES

categorically.26 Indeed, Regulation B
clarifies that ECOA prohibits discrimination based not only on the characteristics of an applicant but also based on the characteristics of a person with whom an applicant associates.27
The Bureau believes that even though the term sex is not defined in ECOA
or Regulation B, the prohibitions against discrimination on the basis of sex under ECOA and Regulation B are correctly interpreted to include discrimination based on sexual orientation and/or gender identity. As explained below and consistent with the Courts analysis in the Bostock opinion, this conclusion can be based on no more than the straightforward application of legal terms with plain and settled meanings. 28 But, even if it were not so straightforward, the Bureau would still reach the same conclusion based on its expertise in interpreting ECOA and Regulation B. In sum, the Bureau finds that under ECOA and Regulation B: 1 Sexual orientation discrimination and gender identity discrimination necessarily involve consideration of sex; 2 an applicants sex must be a but for cause of the injury, but need not be the only cause;
and 3 discrimination against individuals, and not merely against groups, is covered. The Bureau also clarifies that ECOAs and Regulation Bs prohibition against sex discrimination encompasses discrimination motivated by perceived nonconformity with sexbased or gender-based stereotypes, as well as discrimination based on an applicants associations.
First, under ECOA and Regulation B, as under Title VII, sexual orientation discrimination and gender identity discrimination necessarily involve consideration of sex. For example, if a creditor declines the loan application of 26 While Title VII prohibits discrimination against any individual, 42 U.S.C. 2000e2a1, and ECOA prohibits discrimination against any applicant, 15 U.S.C. 1691a, both statutes refer to a singular person or applicant rather than a group.
ECOA defines an applicant as any person who applies to a creditor directly for an extension, renewal, or continuation of credit or applies to a creditor indirectly by use of an existing credit plan for an amount exceeding a previously established credit limit. 15 U.S.C. 1691ab. Regulation B
defines an applicant as any person who requests or who has received an extension of credit from a creditor, and includes any person who is or may become contractually liable regarding an extension of credit. 12 CFR 1002.2e.
27 12 CFR part 1002, supp. I, 2z1 providing that prohibited basis refers not only to characteristicsthe race, color, religion, national origin, sex, marital status, or ageof an applicant or officers of an applicant in the case of a corporation but also to the characteristics of individuals with whom an applicant is affiliated or with whom the applicant associates.
28 Bostock, 140 S. Ct. at 1743.

VerDate Sep<11>2014

15:56 Mar 15, 2021

Jkt 253001

a male applicant on the basis that he is attracted to men, the creditor discriminates against him for traits or actions it tolerates in female applicants;
further, this discrimination is motivated, at least partly, by the applicant failing to fulfill traditional sex stereotypes. 29 Or, if a creditor declines the loan forbearance application of a transgender person who was identified as male at birth but who now identifies as female, but approves the application of an otherwise similarly-situated applicant who was identified as female at birth and now continues to identify as female, the creditor discriminates against a person identified as male at birth for traits or actions that it tolerates in an applicant identified as female at birth. In these examples, the individual applicants sex plays an unmistakable and impermissible role 30 in the credit decisions and thus constitutes discrimination on the basis of sex in violation of ECOA and Regulation B.
The Bureaus interpretation is consistent with the Supreme Courts conclusion in Bostock that it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. 31
Second, under ECOA and Regulation B, as under Title VII, sex does not have to be the sole or primary reason for an action to be discriminatory.32 For example, when a creditor rejects an applicant on the basis of their being gay or transgender, two causal factors may be in playboth the individuals sex and something else the sex to which the individual is attracted or with which the individual identifies.33 Under ECOA and Regulation B, if a creditor would not have rejected a credit applicant or discouraged a prospective applicant but for that individuals sex, the causation standards are met, and liability may attach.34
Third, ECOA and Regulation B, like Title VII, apply to sex discrimination against individuals, not just to situations where all men or all women are discriminated against 29 Id.

at 1742.
at 174142.
31 Id. at 1741. Notwithstanding differences in the ways that Title VII and ECOA phrase their prohibition against sex discrimination, the Bureau interprets ECOA and Regulation B to incorporate the Bostock principles and reasoning with respect to the recognition of sexual orientation discrimination and gender identity discrimination as sex discrimination under ECOA and Regulation B.
32 See id. at 1744; 59 FR 18266, 18268 Apr. 15, 1994.
33 See id. at 1742.
34 See id. at 1742; see also Rosa, 214 F.3d at 215.
30 Id.

PO 00000

Frm 00003

Fmt 4700

Sfmt 4700

14365

categorically.35 Further, ECOA and Regulation B, like Title VII, work to protect individuals of all sexes from discrimination, and do so equally.36 For example, a creditor who rejects an application from a woman because the loan officer regards her as insufficiently feminine, and also rejects an application from a man because the loan officer regards him as being insufficiently masculine, may treat men and women as groups more or less equally. But in both scenarios, the creditor has discriminated against an applicant in violation of ECOA and Regulation B by rejecting an individual applicant in part because of sex. Instead of avoiding ECOA exposure, this creditor doubles it. 37 It is no defense for a creditor to argue that it is equally happy to reject male and female applicants who are gay or transgender because each instance of discriminating against an individual applicant because of that individuals sex is an independent violation of ECOA and Regulation B.38
Last, the Bureau interprets the ECOA
and Regulation B prohibition against discrimination on the basis of sex to also include discrimination motivated by perceived nonconformity with sexbased or gender-based stereotypes, including those related to gender identity and/or sexual orientation, as well as discrimination based on an applicants associations. An example of discriminatory sex-based or genderbased stereotyping occurs if a small business lender discourages a small business owner appearing at its office from applying for a business loan and tells the prospective applicant to go home and change because, in the view of the creditor, the small business customers attire does not accord with the customers gender.39 The Bureaus interpretation regarding discriminatory stereotyping is consistent with multiple court decisions 40 and with the Courts Bostock decision.41 The Bureaus 35 See Bostock, 140 S. Ct. at 174041; see also Rosa, 214 F.3d at 215 finding a potential ECOA
claim where the plaintiff did not receive the loan application because he was a man, whereas a similarly situated woman would have received the loan application.
36 See Bostock, 140 S. Ct. at 1741.
37 See id. at 1741.
38 See id. at 174243.
39 See, e.g., Rosa, 214 F.3d at 21415.
40 See EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 45758 5th Cir. 2013 en banc; Glenn v.
Brumby, 663 F.3d 1312, 1314, 132021 11th Cir.
2011; Barnes v. City of Cincinnati, 401 F.3d 729, 73537 6th Cir. 2005; Nichols v. Azteca Rest.
Enterprises, Inc., 256 F.3d 864, 870, 87475 9th Cir. 2001; Rosa, 214 F.3d at 215.
41 See Bostock, 140 S. Ct. at 174243 stating that an employer who fires employees for failing to fulfill traditional sex stereotypes doubles rather
E:FRFM16MRR1.SGM

Continued
16MRR1