The program you described could have the potential for fair lending issues stemming from the credit score cutoff, which might have a disparate impact on a protected class (for example, if women tend to have lower credit scores than men, and therefore fewer women qualify for the program). Therefore, you may want to reduce the fair lending risk by documenting your business necessity for allowing only borrowers with higher credit scores to benefit from the promotional interest rate. 

The interagency fair lending guidelines state that a policy that results in a disparate impact must be justified by a “business necessity” (with relevant factors including “cost and profitability”). FFIEC Interagency Fair Lending Procedures, p. iv. (You can find more discussion of the disparate impact and business necessity concepts in the Joint Agency Policy Statement on Discrimination in Lending.) While you are an FDIC-supervised bank, we believe this OCC bulletin would be useful, as it explains the disparate impact issue specifically in the context of a credit score cutoff (OCC 97-24): 

Disparate impact may occur in a credit scoring system when: 

• A variable used in the credit scoring system is facially neutral (i.e., it does not discriminate on any prohibited basis overtly). 

• That variable is applied evenly, without regard to any prohibited basis. 

• That variable disproportionately adversely affects a segment of the population that shares a common characteristic that may not be considered legally.

 • That variable cannot be justified by business necessity, or the business necessity can be achieved by substituting a comparably predictive variable that will allow the credit scoring system to continue to be validated, but also operate with a less discriminatory result. 

All of those factors must be present to violate fair lending laws under disparate impact. For additional information on the disparate impact theory of proof under fair lending laws, see the joint agency Policy Statement on Discrimination in Lending, distributed as OCC Bulletin 94-30. 

Bank regulatory agencies, law enforcement agencies, private organizations, and banks may evaluate the variables used in a validated credit scoring system to determine whether they have a disparate impact on any basis prohibited by the fair lending laws. However, the OCC will conclude a variable is justified by business necessity and does not warrant further scrutiny if the variable is statistically related to loan performance, and has an understandable relationship to an individual applicant’s creditworthiness. 

National banks should avoid including in their credit scoring systems variables that have little influence on the total credit score, yet disadvantage applicants on a prohibited basis to a statistically significant degree. The OCC will scrutinize closely a credit scoring system when a national bank substitutes a variable for one found to be predictive by a credit scoring vendor, or changes a system that a vendor has based on a demonstrably and statistically sound analysis of empirical data (by, for example, substituting a different variable or adjusting its weight).