Are CFPB’s Performance Reviews “Acceptable?”

August 28, 2014 at 8:43 am 1 comment

Yesterday, the CFPB, which prides itself on being a statistics-driven, cutting edge agency of the 21st Century, announced a new rating system for its employees which deemphasizes statistics.  For several months now, the CFPB has been dogged by increasingly strident accusations that its managers engaged in discriminatory practices.  These accusations were bolstered by an internal report highlighted in yesterday’s CU Times showing statistical disparities based on race in the performance review process.  For example, 20.3 percent of white employees received the highest rating (a 5 on a 1-5 scale), while only 10.5% of African-American employees received this rating.  The CFPB is responding to this “proof” of racial disparity by implementing a pass-fail system of employee evaluations, doing away with those troublesome numbers.  Instead, employees will retroactively be classified as either solid performers or unacceptable ones. 

CFPB’s retreat speaks volumes about statistics and their limits.  Disparity impact analysis, where regulators and litigators argue that a facially neutral lending policy can be proven to discriminate against individuals based on statistical analysis, is predicated on the assumption that statistics don’t lie.  Advocates of this approach argue that at some point statistical disparities demonstrate that even facially neutral policies reflect discriminatory undertones and/or practices. 

On the other end of the spectrum, on which I would place myself, are those who take a jaundiced view of disparate impact analysis.  Statistics only tell a fraction of the story.  For instance, the CFPB’s statistical chart can’t tell you about how often an employee had to be pushed to get his work done.  Similarly, statistics alone can’t capture the full extent of negotiations that went on between a mortgage originator and a consumer who happened to be African-American.  Nevertheless, the explosion of data makes it more, not less, likely that statistics will be used to judge the effectiveness of anti-discrimination laws.  This is why I find the CFPB’s response so telling.  Rather than defend its evaluations, it implicitly assumes that its managers must be racially biased.  Remember, these are the same people who will ultimately be reviewing lending trends and using increased HMDA data to spot discrimination.   

The pre-eminence of disparate analysis is going to have real life consequences.  For instance, the reality is that as lenders heighten their underwriting standards to make sure that they can document why a borrower can repay a mortgage loan or decide to only make so-called qualified mortgages, these decisions will have a disproportionately negative impact on minority groups that, in the aggregate, have less income. 

What will be the response of legislators and regulators?  Will they look at these statistics and realize that they reflect deep-seated, complex problems that simply can’t be assumed to only reflect racial animus?  Or will they do what the CFPB has done and simply water down evaluation standards so that the difficult issues raised can be “solved” instead of addressed.   

Entry filed under: General, HR, Legal Watch, Regulatory. Tags: , , , .

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1 Comment Add your own

  • 1. Heather Anderson  |  August 29, 2014 at 9:20 am

    Thank you for highlighting our coverage, Henry. The irony here is really something, isn’t it?

    Reply

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Authored By:

Henry Meier, Esq., General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association.

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