Avoiding Discrimination Based on Marital Status

This month, we're going to look at how to avoid discrimination based on prospects' or residents' marital status—that is, whether they're married, separated, single, widowed, or divorced.

Most communities know they can't discriminate against prospects or residents based on seven characteristics protected by federal fair housing law, says Mark S. Alper, director of compliance services at the National Center for Housing Management. But many communities don't know that their state or locality may also bar discrimination based on other characteristics, notes Avery Friedman, an Ohio attorney and fair housing expert. And marital status is a characteristic commonly protected by state and local fair housing laws, he adds. So if your state or locality bars discrimination based on marital status, you can't treat prospects or residents differently based on their marital status, nor can you show a preference for certain prospects or residents because of their marital status, explains Ohio attorney William D. Edwards.

In this month's lesson, we'll give you seven rules to help you avoid discrimination based on marital status. At the end of our lesson, you can take the Coach's Quiz to see how much you've learned. And you can copy and distribute the “At a Glance” box on the last page of this issue so you and other staff members at your community will have a quick reference to help you remember and comply with the rules.

WHAT DOES THE LAW SAY?

Although the Fair Housing Act (FHA) makes it illegal to threaten, intimidate, or otherwise interfere with a person's use and enjoyment of their housing because of his or her race, color, religion, national origin, sex, disability, and familial status, it doesn't bar discrimination based on marital status, notes Alper. But many states and localities bar housing discrimination based on additional characteristics—including marital status, adds Friedman. For example, the following states currently bar discrimination based on marital status: Alaska, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Oregon, Rhode Island, Vermont, Washington, and Wisconsin. Also, localities such as Chicago; New York City; Madison, Wis.; and Montgomery County, Md., bar such discrimination.

If your state or locality bars discrimination based on marital status, what does that mean for your community? It means you can't, say, refuse to rent to a prospect who's divorced, steer single prospects to certain parts of your community, or require married residents to meet a higher income standard, says Friedman.

SEVEN RULES FOR AVOIDING MARITAL STATUS DISCRIMINATION

The following seven rules are designed to help you avoid discrimination based on marital status:

Rule #1: Find Out Whether State or Local Law Bars Marital Status Discrimination

You need to know whether your state or local fair housing law bars discrimination based on marital status, says Edwards. So consult your community's attorney to find out whether your state or local law bars such discrimination and, if so, how marital status is defined, he suggests. States and localities that bar discrimination based on marital status typically define “marital status” as the status of being married, single, separated, divorced, or widowed. Also, find out what specific conduct is barred by state or local law, he adds. For example, Alaska's fair housing law bars communities not only from refusing to rent to a prospect because of his marital status but also from even asking about a prospect's marital status.

Even if your state and local fair housing laws currently don't bar discrimination based on marital status, ask your community's attorney to stay on top of these laws and update you on any changes to them, advises Friedman. An increasing number of states and localities are extending fair housing protections—through laws or by court decisions—to prospects and residents beyond the FHA's scope, he explains. And marital status is a common additional protected characteristic, he notes.

Rule #2: Treat All Prospects, Residents the Same, Regardless of Marital Status

(This rule and the remaining rules presume that your state or local fair housing law bars discrimination based on marital status.)

Treat all prospects and residents the same—regardless of their marital status, says Alper. That is, don't discriminate against or show a preference for certain prospects or residents based on their marital status, he explains. If you, say, reject a prospect solely because of his marital status, the prospect may argue—and a court may agree—that you violated state or local fair housing law, he warns.

Example: A Connecticut prospect expressed interest in renting an apartment in property owned by the Catholic church. She was told that the church preferred to have “a married couple rent the apartment rather than someone who is divorced.” So the prospect filed a complaint with the state human rights commission, claiming that she'd been discriminated against based on her marital status, a protected characteristic under Connecticut law. The church didn't deny that it rejected the prospect because she was divorced; instead, it argued 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. But the church ultimately settled the dispute and agreed to pay the prospect $10,000, and to ensure that it and its employees complied with the state's fair housing law.

Rule #3: Don't Steer Prospects Based on Their Marital Status

Don't “steer—that is, guide or direct—prospects to certain parts of your community based on their marital status, says Friedman. This rule applies even if you think the prospect would be better off in a particular apartment, building, or floor, he notes.

Example: Say your single residents tend to live in Building A, which, as a result, has a social, “party” atmosphere, while your married residents tend to live in Building B, which is quieter. Don't steer single prospects to available apartments in Building A because you think they'll be happier there. And don't steer married prospects to Building B because you think they'll be unhappy in Building A. Instead, let all prospects decide on their own where in your community they would like to live, advises Friedman.

Rule #4: Don't Ask About Prospects' Marital Status

Don't ask prospects about their marital status when they apply for an apartment, advises Edwards. After all, you wouldn't ask a prospect what religion he practices or what ethnicity he is, because doing so would violate the FHA, he explains. So asking prospects about their marital status in a state or locality that bars discrimination based on marital status would likely violate state or local fair housing law. Also, as noted above, some state and local fair housing laws, such as Alaska's, may specifically bar you from asking prospects about their marital status. And a prospect's marital status is irrelevant when it comes to evaluating whether he's qualified to rent an apartment in your community, he notes. Instead, simply ask prospects who will be living in the apartment, he suggests.

Coach's Tip: If your community's application asks for prospects' marital status, speak to your supervisor or the property manager about having that question removed from the application.

Rule #5: Require Application from Each Adult Who Will Live in Apartment

Require each adult who will live in the apartment to fill out an application, suggests Alper. You may be tempted to treat married couples as a unit and let them fill out one application, while asking single prospects who plan to share an apartment to fill out individual applications, he says. But to do so would violate state or local fair housing law because you would be treating prospects differently based on their married status, he explains.

Coach's Tip: Also require references, credit checks, background checks, and so on from each adult who will be living in the apartment.

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

Don't set different income requirements based on marital status, advises Friedman. To require, say, single prospects to make three times the rent but married prospects to make four times the rent would be discrimination based on marital status and so would violate your state or local fair housing law, he explains. Instead, set one income standard based on neutral, nondiscriminatory factors, such as the number of bedrooms in the apartment, suggests Alper. For example, require prospects to make three times the rent for a two-bedroom apartment and four times the rent for a three-bedroom apartment—regardless of whether the prospect is, say, widowed or married, he says.

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

When determining whether prospects meet your community's income requirements, consider the total income of all the adults who will live in the apartment, regardless of their marital status, advises Alper. Don't consider both spouses' total income when determining whether married prospects meet your income requirements but require each unmarried prospect who will be living in an apartment to individually meet your income requirements, he says. If you do so, you're treating prospects differently based on their marital status and thus violating your state or local fair housing law, he explains. And you may end up unfairly rejecting prospects who are financially able to pay your rent.

Example: Say under your community's income requirements, a prospect who wants to rent a two-bedroom apartment would need to make $60,000 a year. A married couple whose total annual income is $65,000 (the wife makes $35,000 a year and the husband makes $30,000 a year) would satisfy that requirement. But what about two unmarried prospects, each earning only $40,000, who want to share a two-bedroom apartment? Although each of the unmarried prospects wouldn't satisfy the income requirement based on their individual incomes, if you consider their total income—$80,000—the unmarried prospects easily satisfy the income requirement and, in fact, make more individually than either spouse.

Coach Sources

Mark S. Alper: Director of Compliance Services, National Ctr. for Housing Mgmt., 12021 Sunset Hills Rd., Ste. 210, Reston, VA 20190; Mark@nchm.org; www.nchm.org.

William D. Edwards, Esq.: Partner, Ulmer and Berne LLP, 1660 W. 2nd St., Ste. 1100, Cleveland, OH 44113-1448; (216) 583-7150; wdedwards@ulmer.com.

Avery Friedman, Esq.: Chief Counsel, Fair Housing Council, 850 Euclid Ave., Ste. 705, Cleveland, OH 44114; (216) 621-9282; averyfriedman@fairhousingtraining.com.

Sidebar

TIME OUT!

If your state or locality bars discrimination based on marital status, speak to your community's attorney before refusing to rent to an unmarried couple. States that bar discrimination based on marital status take different positions on whether that restriction protects unmarried couples who want to “cohabitate—that is, live together. In some states, communities may, based on a particular religious belief, refuse to rent to unmarried couples who want to live together. In other states, a community's refusal to rent to unmarried couples to whom it would rent if they were married is considered discrimination based on marital status. So have your community's attorney check case law in your state to see if and how its courts have ruled on this issue.

Sidebar

TIME OUT!

You may believe it's appropriate to require each unmarried prospect who will be sharing an apartment to individually meet your income requirements because if one roommate moves out, you'll know that the remaining roommate can afford the rent on his own, says Friedman. And you may believe that because the spouses in a married couple are legally tied, they're “jointly and severally liable” for each other's financial obligations, he says. So even if one spouse moves out, both spouses would still be legally responsible for the rent because of their marital status. But that's not necessarily true, warns Alper. For example, in Massachusetts, if one spouse moved out, he wouldn't be legally required to continue paying the rent because of his marital status, he explains. And even in states that require the spouse who moves out to continue paying the rent, there's a better way to handle this issue: Require all adults living in an apartment—including each spouse in a married couple—to sign the lease, he suggests. Then, regardless of any legal relationship between the residents of an apartment, if one resident moves out, he would still be legally bound by the lease's terms and thus required to continue paying rent, he says. And if the remaining resident is unable to pay the rent on her own, you could sue both residents under the lease, he explains.

Sidebar

Show Your Lawyer

• Alaska's fair housing law: Alaska Stat. §18.80.240.

• Fair Housing Act: 42 USC §3601 et seq.