A policy of asking some but not all customers to lower their face coverings before entering your bank poses some risk of potential discrimination issues. However, if you thoroughly document your basis for waiving this requirement for certain customers, follow the policy consistently, and follow the safety guidelines for requiring customers to lower their face coverings, we believe this risk is low.

The Equal Credit Opportunity Act prohibits creditors from discriminating against applicants with respect to any aspect of a credit transaction on the basis of their membership in a certain protected class. Although customers who are not recognizable to your staff when wearing face coverings are not a protected class, your policy could have a disparate impact on a protected class if the customers who are not required to lower their face coverings tend to be of a certain age, race, gender or other protected characteristic. Consequently, an affected customer visiting your bank to obtain credit or defer a payment of a debt could attempt to creatively press for a disparate impact analysis in this context.

However, a policy resulting in a disparate impact can be justified by a “business necessity,” with documentation of any factors that went into deciding the policy. In this case, the Illinois Governor issued an Executive Order requiring face coverings in public indoor spaces, and the Illinois Department of Human Rights published guidance providing that businesses may require customers to temporarily remove their face coverings for purposes of checking identification — provided certain conditions are met. To meet these conditions, bank staff should stand behind a partition (or at least six feet away) when the customer lowers their face covering, and your bank should make hand sanitizer available for the customer to use before lowering their face covering.

Provided that your bank consistently follows a policy allowing for recognizable customers to enter without lowering their face coverings and follows appropriate safety measures for customers who are required to lower their face coverings, we believe it is unlikely that this policy would create any discrimination concerns.

For resources related to our guidance, please see:

• Equal Credit Opportunity Act, 15 USC 1691 (“It shall be unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction—(1) on the basis of race, color, religion, national origin, sex or marital status, or age (provided the applicant has the capacity to contract); (2) because all or part of the applicant’s income derives from any public assistance program; or (3) because the applicant has in good faith exercised any right under this chapter.”)

• Equal Credit Opportunity Act, 15 USC 1691a(d) (“The term ‘credit’ means the right granted by a creditor to a debtor to defer payment of debt or to incur debts and defer its payment or to purchase property or services and defer payment therefor.”)

• FFIEC Interagency Fair Lending Procedures, page iv (“When a lender applies a racially or otherwise neutral policy or practice equally to all credit applicants, but the policy or practice disproportionately excludes or burdens certain persons on a prohibited basis, the policy or practice is described as having a ‘disparate impact.’ . . . The fact that a policy or practice creates a disparity on a prohibited basis is not alone proof of a violation. When an Agency finds that a lender’s policy or practice has a disparate impact, the next step is to seek to determine whether the policy or practice is justified by ‘business necessity.’ The justification must be manifest and may not be hypothetical or speculative. Factors that may be relevant to the justification could include cost and profitability. Even if a policy or practice that has a disparate impact on a prohibited basis can be justified by business necessity, it still may be found to be in violation if an alternative policy or practice could serve the same purpose with less discriminatory effect.”)

• Illinois Executive Order 2020-32 (April 30, 2020) (pre-filing copy provided to media and the public) (April 30, 2020) (“This Executive Order is effective as of May 1, 2020: Section 1. Public Health Requirements for Individuals Leaving Home and for Businesses

1. Wearing a face covering in public places or when working. Any individual who is over age two and able to medically tolerate a face-covering (a mask or cloth face-covering) shall be required to cover their nose and mouth with a face-covering when in a public place and unable to maintain a six-foot social distance. Face-coverings are required in public indoor spaces such as stores.

2. Requirements for essential stores. Retail stores (including, but not limited to, stores that sell groceries and medicine, hardware stores, and greenhouses, garden centers, and nurseries) designated as Essential Businesses and Operations under this Order shall to the greatest extent possible: provide face coverings to all employees who are not able to maintain a minimum six-foot social distance at all times; . . .”)

• Illinois Department of Human Rights, FAQ for Businesses Concerning Use of Face-Coverings During COVID-19 (May 11, 2020) (“Can a business require that I remove my face-covering in order to check my identity? Yes. There are certain circumstances when you may be required by a business to temporarily remove your face-covering for the purpose of checking identification, such as if you are purchasing alcohol, cannabis, or certain medicine. If you are asked to remove your face-covering in order to check identification, you should stand behind a partition, when present, or at least six feet away from other people and remove your face-covering carefully and without touching your face or the inside of the face-covering. You may ask the business to use hand sanitizer before removing your face-covering.”)