Discrimination Avoidance On Issues Of Familial Status

So here we are again talking about Fair Housing. This is an issue that just seems to keep appearing in Association cases. In Omaha, Nebraska, a condominium association and its former President recently settled a case for discrimination on the basis of familial status in the amount of $127,000. The Association and its President were accused of interfering in the sale of a property, claiming that potential buyers were turned away because they had children. The defendants paid $112,500 to the victims and $15,000 to the government as a civil penalty for the discrimination.

This is one of those areas of discrimination that many Associations assume they are not violating. Many think, “Of course we don’t

discriminate against children. We love children!” Then, the next thing they know, due to a poorly drafted or reviewed rule or regulation, they are facing a discrimination lawsuit.

Associations have legitimate reasons and needs to regulate use of common areas to prevent damage, protect safety and minimize liability to the Association. However, it is increasingly important to make sure your Rules and Regulations are neutral. Meaning, the Association ensures it is banning a behavior, not a person. Your rules must not make it impossible for families with minor children to enjoy the common areas.

Examples of improper rules would include no children may be on the common areas, ever, without an adult;

or no children in the pool after 5:00 pm; or no children may ride bikes on the street. It is more prudent to adopt rules that seek to avoid a bad behavior on the common areas instead of focusing on the age of the person engaging in the behavior.

Let’s face it though, not every rule can be entirely child friendly. Such as using an association pool, children under a specific age should be accompanied by an adult. Where these types of rules are necessary, as long as they are reasonable and are aimed at safety of the children. Using state and local laws can aid in determining what is reasonable and necessary.

Equal application of the rules across the board is essential in avoiding

discrimination claims. If you’ve been careful and you have neutral rules, then the application of those rules must be uniform to avoid a claim. If no bicycles are permitted in the street, then you have to enforce it against adults who ride in the street as well.

Language is key. How you say and word things make a huge difference. Make sure any signs posted regarding use of the exercise facility in the clubhouse do not say “Adults Only.” In fact, make sure that any sign posted doesn’t refer to Adults or Children in any manner. However, a sign for the pool or fitness center could read, “For your protection, persons under age 14 must be accompanied by an adult.” A sign of that nature would pass scrutiny because use of a pool or fitness center by anyone under that age would be dangerous without adult supervision.

Any time an Association is looking to adopt new Rules and Regulations or to update their Rules and Regulations it is important to have the association attorney draft the rules for you, or at least have them reviewed prior to adoption to avoid inadvertently stepping into a discrimination claim.

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