Has your community ever been accused of discriminating? Or perhaps someone even brought discrimination charges against your association? Unfortunately, discrimination is the “in thing” nowadays and no association is immune. So what is an association to do in order to protect itself? 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.
Given the above parameters, one can see how easy it may be to fall into the discrimination trap. Below are five typical examples of discrimination that many boards have a hard time believing is unlawful. Are you guilty of any of these?
1. The Pool Rule
No child under the age of 15 may use the pool unless accompanied by an adult.
Although quite popular, the above 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 gets board members very upset as the goal of such rule is to protect children, but despite the noble cause, it is still viewed as discriminatory by fair housing laws. So what is an association to do if it wants to protect children from themselves? The association can slightly tweak the rule so that it is solely safety based by allowing children who can demonstrate a certain level of swimming proficiency, to opt out of the supervision requirement.
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 discriminating based on familial status even though the rule does not specifically have the word “children” in it. Why is this discriminatory? Because it has the effect of primarily impacting families with children. Use of terms such as “toys, tricycles, and skateboards” essentially affects children who are the primary users of such objects. A truly neutral rule would require removal of all objects or all recreational equipment 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 in 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 be considered discriminatory based on impact. Remember, when it comes to discriminatory impact, intent to discriminate is not required.
So what is a community to do in this case? 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. Thus, prohibition of these types of homes is a form of familial discrimination.
5. Prohibition of the Emotional Assistance Chicken
No animals may be housed in the community.
Although no pet communities can, and do, legally exist (if such prohibition is contained in the declaration), the failure of an association to allow an emotional assistance animal for a disabled person in a no pet community is a form of discrimination based on disability.
Typically boards have no problem allowing animals such as Seeing Eye Dogs in no pet communities; they struggle more when it comes to emotional assistance animals, especially if such animals are not the typical pets, such as chickens, horses, 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 must be allowed.
Better Safe Than Sorry
Because boards are not always aware of what constitutes discrimination, and because the penalty for discrimination can be quite costly, boards need to be very careful when adopting and enforcing rules and regulations, and have legal counsel review any proposed rules prior to adoption. Furthermore, associations should always notify legal counsel if discrimination complaints are received.
If you have any questions concerning discrimination in community associations, please contact a Altitude Community Law attorney at 303.432.9999.