Familial Discrimination

Advertisements for apartment complexes and rental properties are virtually impossible to miss as you drive along any busy street or highway.  They have brightly colored signs boasting “granite countertops,” “saltwater pools,” and even “two story gyms.”  But have you ever seen a sign that read “no families allowed” or “kid free apartments?”  Odds are that you have not, and as I have written about before, you have the Fair Housing Act to thank (or blame, depending on how you feel about children) for that due to its inclusion of familial status as a protected class.

A recent example of familial discrimination surfaced in a small Pennsylvania town via Craigslist, when the owner of two apartment complexes repeatedly posted ads unwelcoming to families, with one ad explicitly stating, “Not suitable for children/pets.” After seeing that ad, the local fair housing organization conducted testing.  When a single male tester with no kids came to look at the apartment, he was assured the unit would be available within the week.  However, when a test family arrived (consisting of a man, a pregnant woman, and a young child), they were outright denied the ability to even view the unit with the owner stating “it wouldn’t work for either of us.”  In this case, the familial status discrimination was pretty obvious, and the owner is now facing a discrimination charge based on the testing results.

Although the blatant signs excluding children and families are few and far between, familial status discrimination still appears in more subtle, insidious ways.  For example, an apartment complex marketing itself as “an upscale, adult community” not only runs the risk of sounding like a bad nightclub, but also violates the Fair Housing Act by creating exclusive language that harms families and children.  Similarly, an apartment complex that only shows families the units available in the building closest to the playground may be guilty of familial status discrimination.  Another example is a pregnant woman who, while touring an apartment complex, is asked multiple questions about her pregnancy and steered towards apartments larger than she can afford because she is expecting a child and “will need more space.”

So what’s the bottom line? There are a couple of key take-aways regarding the do’s and don’ts of dealing with families and children.  I think most people already know this one, but it bears repeating – asking women if they are pregnant is always a bad idea.  Second, double check your advertising techniques to ensure the language is inclusive towards families and children.  Third, owners cannot create policies that specifically target only children and teenagers.  This does not mean that you have to let children run amuck, but it does mean that your policies used to limit/control behavior must be universal in nature.  In short, as with all aspects of the Fair Housing Act, make sure that your apartment complex is an inclusive as possible.

The Fair Housing Act (FHA) allows a plaintiff to attack a housing policy that discriminates based on familial status.  Specifically, the FHA prohibits landlords from discriminating against families with children under 18 years old.  For instance, landlords are prohibited from locating families with children to a certain area within the apartment complex, limiting families such as these from accessing recreational services available to other tenants, etc.  And during 2016, the U.S. Department of Justice (DOJ) made it very clear that discrimination of this type will not be tolerated.

For example, the DOJ entered consent orders in 2 cases where this type of discrimination occurred that resulted in each property owner having to pay over $30,000 to remedy the matters.  In one case, a property owner in Nevada used advertisements that conveyed the message that the apartment complex preferred families without children, and then subsequently denied housing to a family with children that responded to one of the advertisements.  This property owner was required to pay $24,000 to the victims for damages resulting from the discrimination, and $12,000 to the United States as a civil penalty.  In another case, a property owner in Pennsylvania refused to rent one and two bedroom units to a family with children.  As it turns out, this family was a DOJ fair housing tester, as we have written about before (We’re Going To Be Tested On This?!).  This resulted in the DOJ ruling that the property owner discriminated against this family, and the owner was forced to pay $20,000 to the victims as damages and $10,000 to the United States as a civil penalty.

These cases further stress the importance of the leasing office staff members being knowledgeable of housing discrimination law.  Property owners and managers must encourage their staff members to be welcoming to all, as we want to avoid situations where comments from a staff member may be perceived as discriminatory to families with children. Even if the staff member has the best intentions for these types of families in mind – such as advising families with children to live in units away from a busy street – these decisions should be left to the families to decide.  Additionally, be mindful that fair housing testers are on the prowl searching for property owners and managers to bring FHA claims against.