Avoiding Discrimination Against Unmarried Couples

We give you eight rules for avoiding marital status discrimination in parts of the country where it’s illegal.

 

 

Once upon a time—in the 1950s—married couples comprised 80 percent of all households in the U.S. That number has declined to just 46 percent, according to U.S. Census data. Living together, a.k.a. “cohabitation,” has emerged as the alternative lifestyle of modern times. Thus, 9 percent of Americans ages 18 to 24 lived with an unmarried partner of the opposite sex in 2018, as compared to 7 percent living with a spouse. Those numbers are even higher for the next age bracket, ages 25 to 34, at 15 percent versus 12 percent, respectively.

Nor is the phenomenon limited to young adults as growing percentages of middle-aged and older Americans cohabit with unmarried partners. These numbers include only opposite-sex couples. Unmarried cohabitation becomes an even more pronounced trend when you factor same-sex couples and unromantically linked roommates into the equation.

Bottom line: Leasing only to married couples is bad for business.

And in many parts of the country, it also happens to be illegal. Nearly half of the states and hundreds of municipalities have adopted fair housing laws that ban discrimination on the basis of marital status. Translation: Landlords aren’t allowed to exclude rental applicants (or provide unfavorable treatment to tenants) based solely on whether they’re married, separated, single, widowed, or divorced.

Example: A California landlord with strict religious principles had to pay nearly $1,000 for rejecting a couple because they were unmarried [Smith v. Fair Employment and Housing Com'n, 12 Cal.4th 1143 (Cal. 1996), 51 Cal. Rptr. 2d 700, 913 P.2d 909].

Accordingly, this month’s lesson is dedicated to marital status discrimination and how to avoid it. First, we’ll explain the current laws governing a landlord’s right to deny housing to people based on their marital status, including unmarried couples. Then we’ll set out eight rules to help you avoid committing marital status discrimination in parts of the country where it’s prohibited. We’ll finish up the lesson with the Coach’s Quiz enabling you to evaluate how well you learned the material.  

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) bans housing discrimination on the basis of race, color, religion, sex, national origin, handicap (disability), and familial status. Marital status isn’t on the list of protected classes. While it might sound similar, the term “familial status” refers not to whether individuals are married, single, separated, or divorced, but whether a person has children under age 18 (or is pregnant). Result: A private landlord who denies housing to unmarried couples or otherwise makes housing decisions based on marital status isn’t guilty of violating the FHA.

However, landlords that base housing decisions on marital status may be liable under state and local laws. Marital status is a protected class under the fair housing laws of 21 states—Alaska, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, New Jersey, New York, North Dakota, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.

Marital status vs. exclusion of unmarried married couples. Surprisingly, marital status discrimination doesn’t necessarily include excluding couples because they’re unmarried. That’s because many states interpret their ban on “marital status” discrimination narrowly as referring only to the status of being a single, married, or divorced person and as not covering the right of unmarried couples to live together. For example, the Connecticut law banning housing discrimination on the basis of marital status clarifies that the provision “shall not be construed to prohibit the denial of a dwelling to a man or a woman who are both unrelated by blood and not married to each other.”

In some states, this narrow reading of “marital status” comes not from the statute but court cases interpreting it. For example, even though Minnesota fair housing law bans marital status discrimination, the state Supreme Court upheld a landlord’s right to refuse to rent to an unmarried woman to keep her from cohabiting in the property with her nonmarital male partner. According to the Court, the state law ban on marital status discrimination in housing referred to “the status of an individual, not the individual’s relationship with a spouse, fiancé, fiancée, or other domestic partner” [Cooper v. French, 460 N.W.2d 2 (1990)].

Only a few states—Alaska, California, Colorado, Massachusetts, Michigan, New Jersey, and Oregon—have made it clear, either via language in the legislation or court rulings, that their state ban on “marital status” discrimination in housing protects not only individuals but also unmarried couples who want to live together.

Local marital status discrimination laws. Also keep in mind that many U.S. cities and counties have adopted laws that ban marital status discrimination in housing, including New York City, Chicago, Phoenix, Saint Paul, Madison, and Montgomery County, MD. As with state laws, these local laws may or may not protect the rights of unmarried couples to live together.

DEEP DIVE

Federal Marital Status Protections Under the HUD Equal Access Rule

Although the FHA doesn’t ban it, marital status discrimination may still run afoul of federal law if your property is federally assisted. Explanation: In 2013, the U.S. Department of Housing and Urban Development (HUD) issued program rules requiring participants in HUD housing programs to ensure equal access to individuals without regard to their actual or perceived marital status. The “HUD Equal Access Rule,” which also bans sexual orientation and gender identity discrimination, applies to any person or business that receives funding from HUD’s Office of Community Planning and Development.

8 RULES FOR AVOIDING MARITAL STATUS DISCRIMINATION

The starting point for managing risk of liability for marital status discrimination is to determine whether such conduct is even illegal in the location where you operate your rental property. Our Lawscape map enables you to determine two key facts that you need to know in mapping your compliance strategy:

• Whether your state’s fair housing law includes marital status as a protected class; and
• If so, whether the prohibition on marital status discrimination clearly extends to the rights of unmarried couples to live together.

Caveat: While the map provides a visual head start, you should still speak to an attorney about your marital status discrimination liability risks, particularly under local laws. Even if you’re in the clear under current law, you might want to go through this lesson keeping in mind that laws change.

In any event, if you determine that marital status discrimination is illegal where you operate, here are eight rules to help you manage your liability risks.

Rule #1: Don’t Exclude Unmarried Prospects on Religious or Moral Grounds

While it can occur in many different ways, one of the most common forms of marital status discrimination is refusing to rent to an unmarried couple on moral or religious grounds. While many fair housing laws include exceptions allowing for churches and other religious organizations to use religion as a criterion for rental decisions, they don’t allow for exclusions based on morality and beliefs about the sanctity of marriage no matter how sincerely they’re held.

Example: A landlord of property owned by the Catholic church turned away an otherwise qualified prospect because she was divorced. So, the prospect filed a lawsuit in Connecticut, where marital status discrimination is banned by state law. The landlord acknowledged rejecting the prospect because she was divorced but contended that it had the right to do so because of the church’s position on “the sanctity of the marriage vows and the indissolubility” of those vows. Ultimately, the church decided not to test its legal defense in court and shelled out $10,000 to settle the case.

Compliance Strategy: Treat all prospects and tenants the same regardless of their marital status and avoid any practices or policies that may directly or indirectly discriminate against or show a preference based on whether a person is married, single, divorced, or separated. 

Rule #2: Don’t Ask Rental Applicants About Their Marital Status

To the extent that marital status discrimination is illegal, asking rental applicants if they’re married or divorced is highly problematic. For one thing, several states, including Alaska, California, Colorado, Massachusetts, and Rhode Island, make it illegal to even ask questions, whether written or oral, designed to elicit information about a person’s protected characteristic. Moreover, since marital status has no legitimate bearing on whether a prospect is qualified to lease the property, “questions about whether a person is married are evidence of an intent to discriminate on the basis of marital status just the same way that asking a person which religion they practice would be evidence of religious discrimination,” cautions a Georgia attorney.

Compliance Strategy: Take a close look at your community’s rental application forms to ensure they include no questions designed to elicit information, whether directly or indirectly, indicating an applicant’s marital status. Remove any such questions that you detect.

Rule #3: Keep Potentially Discriminatory ‘Dog Whistles’ Out of Your Advertising

Another form of illegal discrimination is making, or causing to be made, any advertisement that indicates a preference, limitation, or discrimination based on a protected characteristic, including marital status. While “married couples only” or similar statements raise a clear red flag, discriminatory advertising is often far more subtle. The discrimination such ads convey may be either inadvertent or a deliberate “dog whistle” targeted and comprehensible only to a particular group. Example: Advertising a property as “ideal for families” could be construed as expressing a preference for married couples.

Compliance Strategy: The rule of thumb for avoiding discriminatory advertising is to market the property and its amenities, not the people you think should live in it. Vet every ad and marketing piece you create with one question in mind: Will the prospects who look at this item feel welcome? In making this determination, set aside your own personal opinions and consider the view of the “ordinary reader or listener,” since this is the standard by which you’ll be judged if somebody files a fair housing complaint.

Rule #4: Beware of Steering

Steering is a discriminatory practice that occurs when a housing provider tries to influence rental prospects’ choice in housing based on their protected characteristics. In the context of marital status discrimination, the most overt form of steering would be seeking to persuade applicants not to rent at the community because they’re married, single, separated, divorced, or widowed. This behavior may be the product of simple prejudice for or against marriage or a desire to placate the prejudices of current tenants who don’t want “such people” as neighbors. In many cases, people doing the steering have innocent motives and sincerely believe that steering prospects or tenants to particular neighborhoods, buildings, or areas is actually in their own best interests. Example: A leasing agent might feel as if a married couple will feel uncomfortable in a part of a building occupied primarily by singles.  

Compliance Strategy: At the end of the day, why landlords engage in steering is irrelevant. The important thing to recognize—and ensure that your leasing agents recognize—is that trying to influence applicants’ housing decisions because of their marital status is strictly illegal, regardless of motive. Your obligation is to show applicants what’s available and let them make their own decisions about where they want to live.  

Rule #5: Be Consistent in Your Rental Application Processes

Consistently follow the same application and screening processes when multiple adults want to live in an apartment regardless of the relationship between or among those adult applicants. Thus, for example, don’t allow married couples to fill out one application if you require unmarried couples or roommates to complete individual applications.

Compliance Strategy: Attorneys suggest that you require each adult who wants to live in an apartment to fill out an application, furnish references, and undergo credit, background, and other checks, regardless of whether those applicants are married to each other.

Rule #6: Don’t Set Different Income Requirements Based on Marital Status

Consistency is an absolute must not only for your application processes but also your rental criteria. One common pitfall to be aware of is establishing different income requirements based on marital status, such as by requiring married prospects to have income of at least four times the rent while making three times rent the minimum income for single prospects. 

Compliance Strategy: Establish one income standard for leasing particular units based not on whether tenants are married but on neutral, nondiscriminatory factors tied to the apartment’s characteristics, such as the number of bedrooms it has.

Rule #7: Consider Total Income of All Adults Who Will Live in Apartment

Also be consistent in applying your income requirements. Don’t consider the total income of both spouses when leasing to a married couple while requiring unmarried prospects who want to lease the apartment to meet the minimum income requirement individually. Such an inconsistent approach exposes you to risk of liability for excluding otherwise qualified couples because they’re not married.

Example: A California landlord learned that an applicant to whom he had already offered a lease planned to share the apartment with his boyfriend. So, he withdrew the offer and told the prospect that both he and his partner had to individually meet the community’s $90,000 yearly income standard. The applicant asked if he could aggregate his income with the partner’s, but the landlord said no because they weren’t married. The California Department of Fair Employment and Housing sued the landlord for marital status discrimination. In July 2018, the landlord paid $7,500 to settle the case [DFEH v. Sarfield].

Compliance Strategy: If you let married households combine their incomes to qualify, you must let unmarried households do the same. Of course, one of the risks of allowing applicants to combine their income is that one of the adults will move out, leaving the other unable to meet the minimum income requirement on their own. The popular misconception is that this is less of a risk with married applicants since each spouse is jointly and severally liable for the couple’s debts, meaning you can recover the rent from either spouse or both even if one of them moves out. But attorneys warn that a married couple isn’t jointly and severally liable in all states. For example, in Massachusetts, a spouse who moves out isn’t legally required to continue paying the rent due to their marital status.

Even in states that require the spouse who moves out to continue paying the rent, attorneys suggest that there’s a better way to resolve this situation: Require all adults living in an apartment, including both spouses, to sign the lease. This ensures that you’ll have recourse against each adult tenant. And if the remaining tenant is unable to pay the rent on their own, you can sue both or either tenant under the lease.

Rule #8: Don’t Discriminate Against Current Tenants on the Basis of Marital Status

Risk of discrimination continues after rental applicants from protected classes sign a lease and move into the community to the extent they’re treated less favorably during their tenancy. One example would be to increase the rent or security deposit of tenants who were married when they moved in because they get divorced during their tenancy.

Compliance Strategy: Other practices that would be illegal when based on a tenant’s marital status:

• Refusing to make repairs or provide other building services;
• Limiting access or use of common areas and amenities, including restrooms; and
• Banning public displays of affection (unless the rule applies to all tenants).