In today’s world it is not uncommon for an association to be faced with discrimination allegations. In some cases, the discrimination is obvious but more often than not discrimination occurs in a more subtle form – not by direct discrimination but by enforcing a rule, restriction, or practice that has the effect of discriminating against one of the protected categories. The consequences of discrimination, whether the board is aware it is discriminating or not, can be severe. Therefore, it is very important for an association to be able to identify and understand possible discrimination practices, so it can take proactive steps to prevent such claims from happening.
The primary federal statute that applies to homeowner associations addressing housing discrimination is the Fair Housing Amendments Act (“FHAA”). Additionally, Colorado has a state statute (Colorado Civil Rights Act) that prohibits housing discrimination. If an association is found to have discriminated under the FHAA or the Colorado Civil Rights Act (“CCRA”), it may be ordered to pay damages to the victim (ranging anywhere from $1 to over $1 million, based on the facts), attorney fees, and possible fines. The FHAA makes it unlawful for housing providers to discriminate based on race, color, religion, gender, national origin, familial status and disability. In Colorado, discrimination in housing based on creed, ancestry, sexual orientation, marital status, and retaliation is also prohibited.
The most common discrimination claims filed against associations are for familial status or a handicap of some type. “Handicap” is defined as a physical or mental impairment which substantially limits one or more of a person’s major life activities; a record of having such an impairment, or being regarded as having such an impairment. Although “major life activities” is not defined by the FHAA, courts generally agree that this term includes caring for one’s self, performing manual tasks, seeing, hearing, speaking and breathing. Discrimination based on handicap primarily occurs when an association refuses to give a reasonable accommodation to a handicapped resident when such an accommodation is needed.
Discrimination based on familial status includes unequal treatment of children under the age of 18 who live in the community, pregnant women, and families based on their size or content. For example, many associations adopt rules prohibiting children from playing on common elements. This is a typical example of a rule that is discriminatory under the FHAA. Another example of a rule that may constitute a discriminatory practice under the FHAA is one that defines the term “family” as a certain number of persons as well as certain occupancy standards. The only exemption for this law is if the association follows the necessary steps to establish and maintain itself as a “Housing for Older Persons” (“HOPA”) community.
Associations also regularly get accused of other types of discrimination, such as:
- Religious Discrimination;
- Racial Discrimination;
- Rights of First Refusal;
- Non-Uniform Enforcement;
- Failure to Enforce / Refusal to Intervene;
- Failure to Obtain FHA.
Today’s fair housing laws impose many obligations on homeowner associations as well as prohibit many seemingly reasonable actions by associations. And while there are many pitfalls, implementing the following practices will help you avoid stepping into what can be a snake pit of liability.
Adopt a Reasonable Accommodation/Modification Policy: An association should adopt a policy that sets forth its compliance with a disabled individual’s need for a reasonable accommodation or modification under the Act. This will help the board act appropriately and uniformly with respect to all reasonable accommodation or modification requests under the Act.
Review Restrictions, Rules, and Regulations for Discriminatory Language: A quick glance at an association’s rules will often reveal at least one instance of discrimination. Courts have held that the mere publication and distribution of a discriminatory rule is a violation of the Act, whether the rule is attempted to be enforced by the association or not.
Consult your Attorney: If you receive a request from a disabled individual in your community, do not hesitate to contact your attorney. It may sound self-serving, but, fair housing laws contain many pitfalls for the unwary. An attorney can help you identify the association’s legal obligations and duties in each particular case.
Enforce your Covenants in a Consistent Manner: Picking and choosing who you will enforce your covenants against is never a sound practice, but it can be fatal in a fair housing setting.
Engage the Individual Seeking an Accommodation in an Interactive Dialogue: This can be achieved by inviting the person to the next board meeting or through written correspondence such as letters and e-mails. Work with the individual to create a solution to the situation that meets all parties’ needs.
Be Professional: Be professional at all times when addressing individuals alleging discrimination or seeking an accommodation. Accusations of discrimination are often emotionally charged. Keep your emotions in check, as you may say something you later regret that exposes the association to liability.
Although associations are subject to the Fair Housing Act, few boards are familiar enough with the Act to be able to identify the multitude of ways they could be exposing themselves and the association to claims of discrimination. To avoid liability, and sometimes severe penalties for a finding of discrimination, boards need to fully understand and comply with the Act and their state’s anti-discriminatory laws. With a little effort on the front end, such as adopting a policy or reviewing rules and regulations for discriminator language, boards can reduce or eliminate discrimination claims from being filed altogether.
For more information on discrimination, see our article in Related Links.