WASHINGTON - The government has launched a campaign to make banks as sensitive to racial bias in credit card and auto lending as they have become in mortgages.
In one of its first forays into this area, it has expanded an investigation of possible racial bias in mortgage lending at a northeastern regional bank to include consumer loans, a lawyer for the bank said.
The lawyer, Warren Dennis of Proskauer, Rose, Goetz & Mendelsohn in Washington, said the bank, like many others, uses a statistics-based underwriting technique called credit scoring for its high-volume consumer lending business.
Mr. Dennis said the Justice Department was trying to determine whether the bank's credit scoring system may have led to racially biased lending decisions.
Typically, credit scoring systems look at such factors as a borrower's credit history, income, and job stability to arrive at a numerical score that measures the risk that a loan might default.
Lawyers who follow these issues are telling banks to expect more probes that focus on consumer lending and credit scoring.
"Bankers should expect that the Department of Justice will engage in scrutiny of nonmortgage consumer lending activities," said Andrew Sandler, a partner at the Washington office of Skadden Arps.
The government will focus on how the loans are priced and on the impact of credit scoring systems when they are used, Mr. Sandler said.
At the Northeast regional bank, the original investigation was triggered when the bank announced it wanted to acquire a smaller bank. Activists' protests about the bank's Community Reinvestment Act record led to the Justice Department's probe, according to Mr. Dennis.
The Justice Department is conducting five investigations into the mortgage lending practices at banks, according to Mr. Sandler. It is not known whether the investigations, other than the one at the Northeast bank, have been broadened to include consumer lending practices.
Banking lawyers see the Justice Department's interest in the Northeast bank's credit scoring system as ominous.
So far, the technique has largely escaped government scrutiny because its use has been confined to consumer loans, which do not carry race and gender data.
But lawyers say that with the government showing new interest in scrutinizing racial bias in consumer lending, credit scoring will be under the microscope.
The recently disclosed government probe of pricing practices at the finance arms of General Motors, Chrysler, and Ford had already signaled the government's interest in the area.
As credit scoring moves to the mortgage industry through the efforts of Fannie Mae and Freddie Mac, the government is sure to examine the technique in the mortgage arena as well, said Richard Ritter, a former Justice Department official and now a fair-lending consultant.
All lenders will now have to pay "close attention to the evidence that those systems validly predict credit performance, whether it be in delinquency or default, and also whether it validly predicts performance for the different racial groups," Mr. Ritter said.
At the Department of Justice, the key fair-lending lawyer, Paul Hancock, took pains to say that the government does not oppose the general use of credit-scoring technology.
"There's nothing inherently unlawful about using the credit scoring system," Mr. Hancock said.
But the system must not be based on prohibited factors such as race or gender, he added.
Mr. Ritter believes however, that the government's scrutiny of credit scoring systems most likely rests not on what lawyers call "disparate treatment," but on "disparate effect." That is, decisions not based on factors overtly related to race or sex might nonetheless effectively exclude minority borrowers.
That could happen if credit scoring systems were based on factors that appear to be neutral but actually are biased against minorities or women, said David Medine, associate director of credit practices at the Federal Trade Commission.
The FTC is reportedly working with the Justice Department on the investigation of the automobile finance units.
The key is whether the factors used in a credit scoring model truly predict loan performance, Mr. Medine said, and whether alternative factors could be just as predictive but less discriminatory.
Mr. Medine also pointed out that minority borrowers have been disproportionately excluded under more conventional underwriting systems. A credit scoring system that does not take into account ethnic or national background could even prove to be fairer, he said.
