Industry officials are demanding that the government clarify how banks should comply with fair-lending laws in the wake of the Associates National Bank suit.
The Justice Department on Monday said the credit card bank broke the law by failing to market to customers who used Spanish-language applications certain services that were offered to users of English-language forms.
"This is new ground," said James McLaughlin, director of regulatory and trust affairs at the American Bankers Association. "It raises a host of new uncertainties."
Steven Zeisel, senior counsel at the Consumer Bankers Association, said the Justice Department is stretching the law because the Equal Credit Opportunity Act and Regulation B only apply to discrimination against loan applicants.
The behavior described in the suit, however, involved discrimination that occurred after an applicant received a loan, Mr. Zeisel said. "Marketing has traditionally been viewed as outside the scope of the ECOA and Reg B," he said.
Officials at the Office of the Comptroller of the Currency, which referred the case to the Justice Department for prosecution, declined to comment on what specific steps banks should take to combat marketing discrimination.
"Banks are entitled to have marketing strategies for different groups of customers," an OCC spokesman said. "They are simply not allowed to discriminate on the basis of race, gender, or national origin."
Justice Department officials said the government filed charges because the bank offered the same credit card to English- and Spanish-language applicants, but did not provide the same benefits to both groups.
"We are not saying, for example, that you have to offer to gold cardholders all the benefits you offer to platinum cardholders," said Joan A. Magagna, chief of the housing and civil enforcement section at the Justice Department. "But we are saying that within a category you have to treat Spanish-language applicants the same as English-language applicants."
Justice Department officials also disputed charges by some in the industry that the Equal Credit Opportunity Act does not apply after a consumer is approved for a credit card. "You do not stop being an applicant once you get credit," an official said.
Jo Ann S. Barefoot, a partner in the consulting firm KPMG Barefoot Marrinan, said she doubts the government will issue compliance guidelines.
"The whole problem with fair-lending is the government picks on you after the fact but nobody will step up and tell you this is how you do it," Ms. Barefoot said. "That makes it very difficult for lenders in good faith to comply."
Richard T. Ritter, a former Justice Department fair-lending prosecutor who now consults for housing groups, said the case marks the first time the government has brought a marketing bias case using the Equal Credit Opportunity Act.
"This is probably the best case they could use to open this area to enforcement," he said. "You have a program clearly based on ethnicity and it clearly worked to the disadvantage of credit card holders who are Hispanic."
Mr. McLaughlin said the industry may react to the marketing aspects of the Associates National case by eliminating all foreign-language applications. "Banks want to comply with the rules," Mr. McLaughlin said. "We just need to know what they are."
Besides the marketing charge, the Justice Department accused the Irving, Tex.-based unit of Associates First Capital Corp. of charging Spanish- language applicants more for credit than they charged English-language applicants. Lawyers for the bank said that violation was inadvertent and they took immediate steps to correct it when it was uncovered.