Toward a Stronger Financial History Antidiscrimination Norm.

[History is] the most difficult of all the sciences.-Numa Denis Fustel de CoulangesIntroductionAn individual's financial past-the amount of debt that she has accumulated, the payments that she has failed to make, the judgments that creditors have recovered against her, and any bankruptcy protection that she has sought-has a formidable impact on her life. Credit scores and credit history impact whether and at what cost she can borrow money to purchase a home and a car.1 They influence the prices businesses charge for products like credit cards and auto insurance.2 A growing number of employers consider financial history in scrutinizing job applicants.3 Bar examiners and other licensing organizations consider applicants' repayment histories in assessing their fitness to join particular professions.4 Landlords look at financial histories in evaluating prospective renters.5 An increasing number of utilities and cell phone carriers use credit reports and scores to price deposits for their services.6 Additionally, debt burdens and bankruptcy filings can affect an employee's ability to secure or retain her security clearance.7 For these reasons, financial histories-including credit reports and scoreshave been described as some of "the most powerful determinants of modern American consumer life."8In recent years, one widespread use of financial histories-employers' and licensing organizations' consideration of applicants' financial backgrounds-has attracted significant scrutiny. Legislators and policymakers have questioned the logic and ethics of employers' and licensing organizations' two primary uses of financial histories: (1) to gauge an applicant's propensity to steal from customers or clients,9 and (2) to use an applicant's financial history as a barometer of financial responsibility, which employers interpret as a reflection of her capacity to serve as a responsible employee or licensee.10 Some federal and state legislators have sought to limit employers' consideration of applicants' credit histories absent a reasonably clear relationship between the applicant's financial transgression and his or her ability to perform the responsibilities demanded by the position.* 11 Legal commentators have voiced concerns about bar examiners' consideration of applicants' student loan debt levels and repayment capabilities in determining applicants' professional fitness.12 Some bankruptcy practitioners have suggested that the Bankruptcy Code's prohibition of public employers' refusal to hire bankruptcy filers should be likewise applied to private sector employers.13 In response, employers have defended their right to consider financial histories in the hiring process, arguing that they can glean meaningful information about the merits and employability of job applicants from applicants' credit reports.14In this Article, I consider whether, and to what extent, the law should more rigorously limit employers' and licensing organizations' consideration of individuals' financial histories. Should the law prevent individuals with adverse credit histories, high debt loads, debt defaults, or bankruptcies from being treated differently by employers or licensing organizations? What valid distinctions, if any, can be made among members of these groups? In exploring these questions, I assess how debtors' financial histories have become inextricable from their individual identities, whether the practice is a necessary and effective supplement to norms and laws encouraging debt repayment, the lack of clarity surrounding consumers' ability to enter into financial transactions that maximize their welfare, and the importance of a robust financial history antidiscrimination norm to racial and economic equality. To traverse "the complex, shifting, and often muddy terrain"15 of antidiscrimination law, I examine applicable "logics of personhood,"16 a phrase that refers to a framework of antidiscrimination analysis that can be used to assess whether particular groups are entitled to antidiscrimination protection. …