1.10.2 Employment Discrimination Law
In addition to housing discrimination cases, many courts have relied on the extensive body of law in the employment discrimination area as a source of precedent in credit discrimination cases.120 For example, courts often turn to employment discrimination law when analyzing disparate impact claims in credit discrimination cases.121 In addition, most federal courts in credit discrimination cases have used a modified version of the three-part, burden-shifting analysis developed by the Supreme Court for employment law cases in the McDonnell-Douglas case.122 Advocates might consider using employment discrimination law theories to develop novel legal theories in credit discrimination cases. For example, one commentator has suggested tackling the problem of discrimination in the offering of pre-screened credit by using the analysis developed in cases challenging discrimination in employment recruitment.123
However, there are some differences between the two areas of law. For example, creditors are prohibited by the ECOA from favoring married couples over unmarried couples by only allowing the former to open joint accounts.124 In contrast, several courts have held that state employment laws which forbid marital status discrimination do not prohibit employers from discriminating against unmarried couples.125
120 The Equal Employment Opportunity Commission’s website, www.eeoc.gov, is a good resource on federal employment anti-discrimination law and includes relevant statutes, regulations, and the EEOC’s enforcement guidance, which is its interpretation of current issues in the law. Other employment anti-discrimination law resources include Paul Grossman & Barbara Lindemann, Employment Discrimination Law (3d ed. 1996).
121 See, e.g., Bhandari v. First Nat’l Bank of Commerce, 808 F.2d 1082, 1101 (5th Cir. 1987), rev’d in part on other grounds, 829 F.2d 1343 (5th Cir. 1987) (en banc), vacated and remanded, 492 U.S. 901, reinstated, 887 F.2d 609 (5th Cir. 1989); Coleman v. Gen. Motors Acceptance Corp., 196 F.R.D. 315, 325–326 (M.D. Tenn. 2000), vacated on other grounds, 296 F.3d 443 (6th Cir. 2002); Buycks-Roberson v. Citibank, 162 F.R.D. 332 (N.D. Ill. 1995); Gross v. U.S. Small Bus. Admin., 669 F. Supp. 50 (N.D.N.Y. 1987), aff’d, 867 F.2d 1423 (2d Cir. 1988); Williams v. First Fed. Sav. & Loan Ass’n, 554 F. Supp. 447 (N.D.N.Y. 1981), aff’d, 697 F.2d 302 (2d Cir. 1982); Cherry v. Amoco Oil Co., 490 F. Supp. 1026 (N.D. Ga. 1980).
122 See § 126.96.36.199, infra (describing the McDonnell-Douglas test and the split among federal courts as to whether it should be applied in credit discrimination cases).
123 Timothy J. Lambert, Fair Marketing: Challenging Pre-Application Lending Practices, 87 Geo. L.J. 2181 (1999).
124 Markham v. Colonial Mortg. Serv. Co., 605 F.2d 566 (D.C. Cir. 1979); Diaz v. Va. Hous. Dev. Auth., 101 F. Supp. 2d 415, 419–420 (E.D. Va. 2000), subsequent proceeding at 117 F. Supp. 2d 500 (E.D. Va. 2000); Official Interpretations of Reg. B, 12 C.F.R. pt. 1002, supp. I, § 1002.6(b)(1)-1.
125 See Parker-Bigback v. St. Labre Sch., 7 P.3d 361 (Mont. 2000); Waggoner v. Ace Hardware Corp., 953 P.2d 88 (Wash. 1998); John C. Beattie, Prohibiting Marital Status Discrimination: A Proposal for the Protection of Unmarried Couples, 42 Hastings L.J. 1415 (1991).
Note that Title VII of the federal Civil Rights Act, which is the federal anti-discrimination employment law, does not prohibit marital status discrimination. 42 U.S.C. § 2000e-2(a)(1).