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‘Disparate Impact’ Theory Provides No Support for Banning Credit-based Insurance Scoring, According to Paper Published by Washington Legal Foundation

INDIANAPOLIS (April 18, 2005)—In a “Legal Backgrounder” published by the Washington Legal Foundation (WLF), National Association of Mutual Insurance Companies (NAMIC) Public Policy Director Robert Detlefsen explains why group variations with respect to credit scores do not justify restricting the use of credit-based insurance scoring.

The WLF paper comments on a landmark study by the Texas Department of Insurance, which confirmed NAMIC's long-standing contention that credit-based insurance scoring allows insurers to more accurately assess and price risk for both auto and homeowners insurance. In particular, the paper explores the implications of the TDI study’s controversial finding that average credit scores vary among different racial and ethnic subgroups within the population. Some policymakers and consumerists have cited that aspect of the TDI study to demand that credit-based insurance scoring be prohibited because it produces a “disparate impact” among groups.

Detlefsen explains that disparate-impact analysis was originally conceived as a legal theory for use in Title VII employment discrimination lawsuits. Examining recent case law, he finds that “courts have increasingly come to recognize that serious economic problems would result if the Title VII version of the disparate impact doctrine became the template from which courts, legislatures, and administrative agencies reflexively construct disparate impact standards for other areas of commerce,” such as financial services.

“If lenders and credit card issuers can cite legitimate business justifications for race-neutral evaluation criteria that produce disparate impacts,” writes Detlefsen, “it seems reasonable to infer that insurers should be allowed to do the same.”

Detlefsen’s analysis is supported by an emerging consensus among legal scholars that in disparate impact cases brought under the Fair Housing Act and the Equal Credit Opportunity Act, plaintiffs should be required to identify an equally effective alternative practice that would have less of a disparate impact than the challenged practice, and courts should consider the cost to a defendant of adopting and maintaining the alternative practice.

“In a legislative or regulatory setting,” Detlefsen concludes, “it follows that this burden should rest with the policymaking body. If policymakers believe that an alternative to insurance scoring exists that produces less of a disparate impact, that is no more expensive to use, and that is equally effective in achieving the legitimate business purpose of assessing risk, let them identify it.”

The WLF paper will be widely distributed among state and federal policymakers.

"'Disparate Impact' Theory Provides No Support for Banning Credit Scoring in Insurance" can be downloaded at NAMIC Online.

The Washington Legal Foundation is a law and legal public policy center with supporters in all 50 states. WLF is the nation’s preeminent center for public interest law, advocating free-enterprise principles, responsible government, property rights, a strong national security and defense, and a balanced civil and criminal justice system.

Posted: Monday, April 18, 2005 12:00:00 AM. Modified: Monday, April 18, 2005 5:20:56 PM.

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