CFPB Expands ECOA and Regulation B Protections to Sexual Orientation and Gender Identity

On March 9, 2021, the CFPB issued an interpretive rule clarifying that ECOA and Regulation B prohibitions on discrimination on the basis of sex also prohibit discrimination on the basis of sexual orientation and gender identity. 

Last year, in Bostock v. Clayton County, 590 U.S. ___, 140 S. Ct. 1731 (2020), the Supreme Court interpreted the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 as necessarily prohibiting discrimination on the basis of sexual orientation discrimination and gender identity discrimination.  In the wake of the Supreme Court’s decision, the CFPB issued a request for information (RFI) seeking comments and questions concerning its enforcement of ECOA and Regulation B, including, among other things, questions about sexual orientation and gender identity discrimination.  WBK reported on the CFPB’s RFI here. 

The CFPB’s interpretive rule mirrors the Supreme Court’s reasoning in Bostock.  As in Bostock, the CFPB’s interpretation prohibits discrimination against individuals, not merely situations where all men or all women are discriminated against categorically.  As an interpretive rule, there is no notice and comment period.  The rule will go into effect immediately upon publication in the Federal Register.