a) Generally. Except as expressly authorized
in this Section, or in Section
800.50 or
800.60 of this
Part, or under any law of the United States or the State of Illinois, a
financial institution or credit card offeror may not inquire of any applicant
for a loan or credit card regarding any characteristic the consideration of
which would constitute unlawful discrimination under the Act. This shall not
mean, however, that a mortgage lender is prohibited from inquiring of
applicants regarding their race, national origin, age, sex and marital status,
to the extent required for federal monitoring purposes under Section 202.13 of
Regulation B of the Board of Governors of the Federal Reserve System, (
12 CFR
202.13 ), as long as the inquiry is made in
conformity with the requirements of that regulation.
b) Pertinent Elements of Credit-Worthiness.
Section 4-104(B)(1) of the Act provides that financial
institutions and credit card offerors are not precluded from: making an inquiry
of the applicant's age, permanent residence,immigration status, or any
additional information if such inquiry is for the purpose of determining the
amount and probable continuance of income levels, credit history, or other
pertinent element of credit-worthiness as provided in regulations of the
Department. Under this exemption, the following inquiries are permissible for
the purposes and under the circumstances indicated:
1) Age. A creditor may inquire into an
applicant's age to ensure that the applicant has the legal capacity to enter
into a binding contract; to assess, from the applicant's occupation and
probable length of time to retirement, whether the applicant's income
(including retirement income) will support the extension of credit to its
maturity; to weigh the adequacy of any collateral offered to secure the
transaction against the life expectancy of the applicant; or to evaluate the
significance of the applicant's length of employment or residence. A creditor
may also inquire of an applicant's age in connection with an application for
credit insurance, to determine the conditions on which insurance may be
available to the applicant.
2)
Permanent Residence and Immigration Status. A creditor may inquire into an
applicant's permanent residence and immigration status to determine its rights
and remedies regarding repayment, provided the inquiry is made uniformly of all
applicants without regard to race, national origin or other prohibited
characteristic.
3) Sex and Marital
Status. A creditor may not request the sex of an applicant, but may request the
designation of a title from among "Ms.", "Miss", "Mr." or "Mrs.", if the
designation is clearly denominated as optional with the applicant. If the
application is for individual unsecured credit and the applicant does not
reside in a community property state, the creditor may not request the
applicant's marital status; otherwise, the applicant may be required to
disclose marital status from among "Married", "Unmarried" and "Separated", and
the creditor may explain that "Unmarried" applies to single, divorced and
widowed persons. A creditor may not request information regarding an
applicant's childbearing capacity or intentions, or birth control practices. A
creditor may, however, inquire about the number and ages of an applicant's
dependents, about dependent-related financial obligations (e.g., medical and
educational expenses attributable to the applicant's responsibility for a
dependent) and about the applicant's liability to pay alimony or child support,
if the information is requested uniformly of all applicants without regard to
sex or marital status or any other prohibited characteristic. A creditor may
request the sex and marital status of an applicant in connection with an
application for credit insurance, for purposes of determining the conditions on
which insurance may be available to the applicant. A creditor may also request
the marital status of an applicant for the limited purpose of ascertaining its
rights and remedies regarding repayment.
4) Spousal Information.
A) A creditor may not request information
concerning an applicant's spouse or former spouse unless:
i) the spouse will be permitted to use the
account or will be contractually liable upon it;
ii) the applicant relies on the spouse's
income or on alimony or kindred payments (e.g., separate maintenance, child
support) from the spouse to repay the indebtedness; or
iii) the applicant resides in, or property
securing the indebtedness is located in, a community property state.
B) When any of the criteria
contained in subsection (b)(4)(A) of this Section is satisfied, the creditor
may request information regarding the applicant's spouse only to the extent
that the information may be requested about an applicant under this
Section.
5) Source of
Income. A creditor shall advise applicants, before inquiring generally into
their available income, that they need not disclose income derived from
alimony, child support or separate maintenance payments if they do not desire
that income considered in evaluating their creditworthiness. This advice is not
required, however, if the terms of the inquiry are sufficiently specific (e.g.,
focused exclusively on employment income) as to reasonably preclude disclosure
of alimony, child support or separate maintenance. A creditor may inquire
whether any of an applicant's listed income is derived from a public assistance
program to evaluate the likely continuation and future reliability of those
payments, and to ascertain its rights and remedies regarding repayment, if the
inquiry is made uniformly of all applicants without regard to a prohibited
characteristic.
6) Disability. A
creditor may not inquire whether an applicant has a disability. If any income
listed by the applicant is derived from disability or public assistance
benefits occasioned by a disability, however, the creditor may request
information regarding the nature and duration of the condition for purposes of
evaluating the probable continuation and future reliability of that income. A
creditor may also inquire into an applicant's physical condition in connection
with an application for credit insurance to determine the conditions on which
insurance may be available to the applicant.