Has your community ever been accused of discriminating? Or perhaps someone even brought discrimination charges against your association? Unfortunately, discrimination accusations are easily flung these days and no association is immune. What can associations to do to protect themselves? Perhaps the most crucial step you can take is to arm yourself with knowledge. Knowledge of what discrimination is and how it can be avoided.
Discrimination means to treat someone differently based on a protected class. Protected classes are established by both state and federal laws and include, but are not limited to the following:
- Race
- Color
- Religion
- Sex
- Disability
- Familial status
Furthermore, unequal treatment need not be intentional – it can simply be an effect of a neutral rule. This article will share five examples of discriminatory conduct or rules that could expose an association to liability based on discriminatory impact.
1. The Pool Rule
No child under the age of 15 may use the pool unless accompanied by an adult.
Although this type of rule is fairly typical, this rule is actually discriminatory. Why? Because the rule treats families with children differently than families without children, and constitutes a form of “familial discrimination.”
The above example tends to upset directors as, in their minds, the goal of such rule is to protect children; but despite the noble cause, it is still viewed as discriminatory by fair housing laws. What can associations do if they want to protect children from themselves? In short, the rules must solely focus on safety and allow children to show swimming proficiency (via Red Cross, or similar, certification) in order to qualify for swimming without adult supervision.
2. Cleaning Up Common Area
All toys, tricycles, and skateboards must be removed from common areas by 9pm.
In this example, the association is again likely discriminating based on familial status even though the rule does not specifically contain the words “child” or “children” in it.
Why is this discriminatory? Because it has the effect of primarily impacting families with children. Items such as “toys, tricycles, and skateboards” are primarily used by children and their families who are impacted by this rule. A truly neutral rule would require removal of all personal items or recreational equipment from common areas and not focus on items utilized primarily by children.
3. No Pets for Renters
Renters in the community are not allowed to have pets (but owners may have pets).
Although renters are not a protected class, associations need to be very careful if they plan on treating renters differently than owners. The key with these types of rules is demographics. In other words, if renters tend to fall into a protected class, while owners do not, such rule will likely be considered discriminatory based on impact of a protected class. Remember, when it comes to discriminatory impact, intent to discriminate is not required.
How is this problem addressed? Do not adopt rules or policies treating renters differently than owners.
4. Prohibition of Group Home in Community
No group homes allowed in community.
Although some boards attempt to prohibit these types of establishments in their communities on the basis of “single family usage” and “no businesses” restrictions, doing so is discriminatory.
Courts view these types of homes as “residential” based on the nature of activities conducted in the facilities being akin to a single-family home. For example: residents eat together, live together, and sleep under the same roof – which equates to single family use. Thus, prohibition of these types of homes constitutes a form of familial discrimination.
5. Prohibition of the Emotional Assistance Turkey
No pets may be housed in the community.
Some communities contain prohibitions on all pets in their declarations. However, many board members do not realize that emotional support animals are protected from prohibition, if needed for a disability, and are not legally considered to be “pets”.
Generally, directors understand and accept that animals such as seeing eye dogs must be allowed in communities that prohibit pets. However, they tend to struggle more when it comes to emotional assistance animals, especially if such animals are not the typical pets, such as chickens, turkeys, and pigs.
Nevertheless, if a resident produces a written instrument from his/her medical care provider (NOT necessarily a doctor) indicating such owner is disabled and requires the emotional assistance animal to function, such animal may need to be allowed as a reasonable accommodation to the disability.
Better Safe Than Sorry
Because board members are not typically aware of what constitutes discrimination, and because the penalty for a discrimination finding can be quite costly, boards need to be very careful when adopting rules and regulations to ensure they are not inadvertently adopting rules that can be considered discriminatory.
Make sure to have legal counsel review any proposed rules prior to adoption. Furthermore, associations should always notify legal counsel if discrimination complaints are received.
For a more thorough discussion concerning discrimination, please review our in-depth Overview of Discrimination article.
If you have any questions concerning discrimination in community associations, please contact an Altitude attorney at [email protected] or 303.432.9999.