Play by the Rules When It Comes to Kids and Their Families

In this month’s lesson, the Coach reviews fair housing rules protecting children and their families from housing discrimination. The law bans discrimination based on familial status, so it’s unlawful to deny housing to people—or to treat them differently—because there’s a child under the age of 18 in the household. There’s only one exception—but it applies only to senior housing communities that meet strict technical requirements to qualify as “housing for older persons.”

You could face a fair housing complaint if you exclude or otherwise discriminate against families with children—whether the discrimination is intentional or not. A complaint for intentional discrimination might be from an applicant who’s steered away from the community—or from a particular area at the community—because he has children. It might also come from a prospect who suspects that she’s getting the runaround because she has young children in her household.

Example: In February 2016, the owners and manager of a Connecticut community agreed to pay $19,500 to settle a HUD complaint alleging discrimination against families with children. The single mother of 4-year-old twins filed the HUD complaint, accusing the community of refusing to rent her a two-bedroom unit because of her children. The woman claimed that, after learning that she has two sons, the property manager told her that he would get back to her—but he never did. Two weeks later, he allegedly said it would be another two weeks before he had an answer. Suspecting discrimination, the woman asked her cousin to call about the unit; when the cousin told the manager that it was for herself and her husband, he allegedly offered to show it to her the next day.

“When a property owner refuses to show an available unit to a family because they have children, they’re not only denying them a housing opportunity, they’re violating the law,” Gustavo Velasquez, HUD Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “No one should have to hide who they are or who their family is while looking for a place to live. This agreement reaffirms HUD’s commitment to ensuring that housing providers treat all applicants the same, regardless of gender, race, or family status.”

Increasingly, communities are facing complaints for enforcing policies that have a discriminatory effect on families with children—even if there’s no proof of an intent to discriminate. These are known as “disparate impact” claims, often involving community policies that single out children in some way, such as rules restricting whether, when, or where children may play outside. Fair housing law doesn’t prohibit communities from adopting reasonable rules governing common areas, but it’s unlawful to enforce rules that have an unreasonable discriminatory effect on families with children.

Example: In June 2016, the Justice Department sued the owners and managers of a Minnesota community for violating fair housing law by enacting and enforcing overly restrictive rules limiting children’s presence in the hallways or common areas. The complaint alleged that the community’s rules prohibited children from being in common areas such as the hallway or yard, except when entering or exiting the building, and assessed a $50 fine for any child in the common areas or front yard. According to the complaint, the rules discriminated against families with children by treating children less favorably than adults in their ability to use common areas.

In this lesson, we’ll explain how fair housing law protects families with children and others from discrimination based on familial status and offer five rules to help you avoid trouble spots when dealing with families with children, which often lead to a fair housing complaint. Finally, you can take the Coach’s Quiz to see how much you’ve learned.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, disability, and familial status.

Under the FHA, the term “familial status” means one or more children under the age of 18 are living with:

• A parent or another person having legal custody of the child or children; or
• The designee of such parent or other person having such custody, with the written permission of such parent or other person.

That definition includes families with children, but it’s the presence of one or more children under the age of 18 in the household—not the relationship between the child and the applicant or resident—that triggers the familial status provisions. That means that the law protects children living with one or more parents, regardless of the parent’s marital status or sexual orientation. It also covers adoptive parents, foster parents, legal guardians, family members, and anyone else who has written permission to care for the child.

The familial status protections also apply to people who expect to have a child under 18 in their household, such as pregnant women and anyone in the process of securing legal custody of a child under 18, such as through adoption, divorce, and guardianship proceedings.

Example: In February 2016, a court refused to dismiss a fair housing case against the owners of a Pennsylvania community for discrimination based on familial status. The complaint was filed by a couple who had one child when they moved into a 1,500 square foot unit, which had two bedrooms and a den that could be used as a third bedroom. According to the couple, their lease provided that no more than four people could occupy the unit without consent of the owners. They said that their lease was renewed after they had a second child, but that they were denied a renewal after telling the landlords that they were having a third. Allegedly, the landlord refused to renew the lease due to the pregnancy and stated: “Oh no, that’s too many kids” [Reese v. Jacobowitz, February 2016.]

5 RULES FOR DEALING WITH FAMILIES WITH CHILDREN

Rule #1: Don’t Deny Housing to Families with Children

In general, it’s unlawful for communities to prohibit families with children from living there. It doesn’t matter whether you—or your current residents—would prefer that children NOT live at the community; it’s a violation of fair housing law to deny housing to applicants or residents because they have one or more children under 18 in their household.

There’s only one exception to this rule, but it applies only to senior housing communities that satisfy strict legal requirements to qualify as “housing for older persons.” The FHA recognizes three types of housing that may qualify under the familial status exemption as housing for older persons. The most common—55 or older—is also the most complicated: Among other things, 55+ communities must adopt policies and procedures to ensure that at least 80 percent of their units are occupied by at least one person 55 and older.

Senior communities that comply with these and other technical requirements are exempt from the general rules that protect families with children. There’s no middle ground—you either meet those requirements or you don’t. And if you don’t, you’ll probably trigger a fair housing complaint by enforcing an “adults-only” policy or adopting rules, such as an age limit, that would prevent children from living there.

Example: In March 2016, the owner and manager of an Indiana mobile home community agreed to pay $130,000 in damages and penalties to resolve a complaint alleging familial status discrimination. Based on evidence gathered during fair housing testing, the Justice Department accused the community of refusing to allow families with children to live there. According to the complaint, the agent allegedly told one tester that he couldn’t rent her a unit for herself, her husband, and minor child because no one under the age of 40 was allowed to live there. Allegedly, she called back to say that she and her husband would both soon be 40, but he said, “There’s no kids allowed out here.”

And remember, you can’t designate certain floors, buildings, or areas within your community as senior housing. It’s all or nothing under fair housing law—the senior housing exemption applies only if the community as a whole qualifies as housing for older persons.

Example: In December 2015, the owners and operators of a Wisconsin mobile home park agreed to pay $100,000 to settle a Justice Department lawsuit alleging that they unlawfully excluded families with children from significant portions of their 230-lot mobile home park.

“Unless a mobile home park meets the very specific requirements to be designated housing for older persons, the owner cannot refuse to sell or rent a home to a family because they have a child,” Gustavo Velasquez, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Today’s settlement reaffirms HUD’s determination to work with the Justice Department to ensure that occupancy standards established by housing providers do not violate the Fair Housing Act.”

Coach’s Tip: It’s also unlawful to deny housing to families with children because of concerns about the presence of lead paint at the property. For example, HUD recently announced a $9,500 settlement with a Massachusetts real estate company, which was accused of violating fair housing law by discouraging families with children from renting units because of potential lead-based paint hazards. A fair housing organization filed the HUD complaint, alleging that when prospective renters responded to online ads placed by the company, its agents discouraged families with children from applying.

Rule #2: Don’t Restrict Where Families Can Live at the Community

Don’t restrict where families can live by making certain areas available only to residents above a certain age—or making them off-limits to children. Limiting a prospect’s housing choices because she has one or more children under 18 in the household is a fair housing violation, commonly known as “steering.” In general, steering means guiding, directing, or encouraging prospects to live in—or not live in—certain sections of your community based on familial status and other protected characteristics.

Example: In April 2015, the owner and operator of a Massachusetts community agreed to pay $142,500 to settle allegations of discrimination against families with children. Based on the results gathered during fair housing testing, the Justice Department accused the community of maintaining and enforcing policies to segregate families with children in certain buildings and restrict them to certain floors and units within the 224-unit complex.

When showing units to prospects, tell them about all available units that meet their stated requirements. Even when well intentioned, it’s unlawful to guide families with children to—or away—from certain units or areas within your community. For example, you shouldn’t encourage a family with children to choose a unit near the playground because you think they would be happier there. Likewise, don’t steer families with children away from units on upper floors or near water features, such as a pond or pool. Even if you believe it’s better for the children, you may face liability for unlawful steering if you don’t tell families with children about available units in those areas or discourage them from living there.

Example: In an ongoing case, the owners and manager of a Colorado community are defending against lawsuits filed by the Justice Department and a private fair housing organization. Based on the results of fair housing testing, the complaint alleged that the community implemented a policy of generally not allowing families with children to live in the front building, while generally restricting them to units in the rear building instead.

“Apartment owners cannot limit where children live in their apartment complexes,” Principal Deputy Assistant Attorney General Vanita Gupta, head of the Civil Rights Division, said in a statement. “If an apartment is within their budget and meets their needs, the family, not the landlord, should be able to decide whether it is appropriate for them.”

“Families looking for a safe place to call home shouldn’t have that housing limited to certain units of a complex,” HUD Assistant Secretary Gustavo Velasquez of Fair Housing and Equal Opportunity said in a statement. “That kind of steering is not only unfair—it is against the law. HUD will continue to work with the Justice Department to take action when the rental policies of housing providers violate the rights of families with children.”

Rule #3: Don’t Restrict How Families Want to Live

Even when there’s no intent to discriminate against families with children, it’s possible to get into fair housing trouble from enforcing policies, procedures, or rules that have a discriminatory effect based on familial status. A prime example: your occupancy standards.

Your occupancy standards could lead to fair housing trouble if they can unreasonably restrict how families choose to live. Fair housing law doesn’t prevent communities from maintaining reasonable occupancy policies, but it’s unlawful to apply overly restrictive occupancy standards that unreasonably interfere with the housing choices of families with children under age 18.

Example: In November 2015, the Justice Department sued the owners and property manager of three Michigan communities, accusing them of discrimination against families with children. The complaint, which was based on fair housing testing, alleged that the communities violated fair housing law by refusing to allow single-parent families with children to rent one-bedroom units, but permitting households with two adults to rent one-bedroom units.

As a general rule, HUD guidelines state that two people per bedroom—regardless of age or gender—is a reasonable occupancy standard. In other words, the general rule is to allow two people per one-bedroom unit; four people per two-bedroom unit; and six people per three-bedroom unit.

It’s a good rule of thumb, but that’s all it is. HUD’s guidelines emphasize that two people per bedroom was not intended as the sole standard, and that it may be reasonable to apply a different standard, depending on the size of the bedroom, size or configuration of the unit, the age of the children, state and local law, and other factors. When that happens, HUD says that you should be prepared to explain why you didn’t apply the general two-people/bedroom standard to avoid accusations that your community is using its occupancy standards to unlawfully exclude families with children.

Example: In September 2015, a New-York based property management company agreed to settle fair housing claims alleging discrimination against families with children based on enforcement of occupancy standards at five properties in three states. The settlement resolves a HUD complaint filed by private fair housing organizations, which accused the company of discrimination by enforcing an occupancy policy of no more than two people per bedroom in each apartment, regardless of the unit’s square footage or whether that unit has a den, office, loft, or other feature that could provide an additional bedroom or living area for a child.

When enforcing occupancy standards, make sure that personal attitudes and opinions do not intrude into private family decisions about living arrangements. In general, you may consider only how many occupants—without regard to gender or age—are in the applicant’s household, unless permitted under state or local law. Even if you don’t think it’s appropriate, you may not require adults and children of either gender to have separate bedrooms. Similarly, you may not require male and female children, regardless of their age, to have separate bedrooms.

Coach’s Tip: Check applicable state and local laws governing occupancy, which would supersede HUD’s general two-people/bedroom rule. Some state and local occupancy standards are based on square footage, while others allow more than two people per bedroom or don’t count children under a certain age under the two-people/bedroom standard.

Rule #4: Don’t Make Kid-Unfriendly Rules

Disputes over the community’s rules—or the way the rules are enforced—can lead to fair housing trouble based on familial status. You may have legitimate concerns about outdoor play activities that could damage property or disturb neighbors, but you could trigger a discrimination complaint if the rules unreasonably interfere with the ability of families with children to live at the community.

As much as possible, avoid adopting rules that specifically target children’s behavior. Rules banning children from playing outside—or requiring adult supervision of children in common areas—could lead to accusations that you are treating families with children less favorably than adult households living at the community.

Example: In April 2016, a court sided with two fathers, who accused a California community of discrimination based on familial status because of its policies governing children’s behavior in common areas. The rule, which was included in training materials distributed to all managers, established guidelines for on-site managers to respond to unsupervised children. If a manager found a “young child” of a resident unsupervised, the guidelines provided a series of responses, including talking to the parent or guardian, contacting social services or the police, and evicting the residents.

The court ruled that the community’s policy toward unsupervised young children inherently treated children differently than adults by limiting when they may use the common areas of the complex to times when they were supervised by an adult. The policy also treated the parents of young children differently by subjecting them to certain consequences if their children were found unsupervised. In contrast to households with children, adults-only households could use the entire premises without limitation and without the risk of receiving warnings or facing eviction for violating the adult supervision guidelines.

The court ruled that the community didn’t have a legitimate reason for policies that treated unsupervised young children and their parents differently than adults without children. To justify the rule, the community had to show that the adult supervision policy benefited families with children—or responded to legitimate safety concerns that were not based on stereotypes.

The community argued that the guidelines were justified to protect the safety and well-being of young children, to limit noise and disturbances, and to protect themselves from liability if the children were injured. The community’s safety concerns might have been well meaning, but they were based largely on unfounded speculation, and the other two reasons did not respond to legitimate safety concerns. The court also rejected claims that the guidelines otherwise benefited families with young children [Bischoff v. Brittain, April 2016].

Coach’s Tip: Even if your community rules apply to all residents—not just children—you could still face a discrimination claim if you enforce the rule only against children. Singling out children for breaking the rules against noisy behavior in common areas—but ignoring similar transgressions by adults—could lead to a fair housing claim based on familial status.

Rule #5: Watch What You Say About Kids

What you say can lead to fair housing problems if it expresses a preference for—or against—children under 18. That’s because fair housing law bans discriminatory statements—whether spoken, written, or online—that suggest a preference for or against a protected class. These rules apply to all kinds of statements, including:

• What you say to prospects, applicants, or residents in person or over the phone;
• What you write in notes, texts, emails, or online communications as well as community rules and policies;
• What you put in your advertising and marketing materials—including words and graphics—in print, online, and other media. 

You have to be careful about what you say—and how you say it—because the rules don’t require proof of discriminatory intent. Statements are taken at face value to determine whether an “ordinary reader or listener” would interpret the statement as indicating a preference for adults or against families with children. Unless you’re careful, you could face a fair housing complaint based on what you say, or write, or post—even if you didn’t mean to express a discriminatory preference.

Example: In May 2016, the Justice Department announced that the owners of a rental properties in Nevada agreed to pay $36,000 to resolve allegations of discrimination against families with children. The lawsuit alleged that the owners placed a series of advertisements for a single-family rental home in the local newspaper that indicated a preference for adult tenants and refused to rent the home to a family with three children because they didn’t want children living at the property. The complaint also alleged one of the owners placed discriminatory advertisements for another property she owned—a 36-unit community—that indicated a preference for adult tenants.

“A family’s search for housing that fits their needs shouldn’t be limited by discriminatory practices that violate the Fair Housing Act,” said Gustavo Velasquez, Assistant Secretary for HUD’s Fair Housing and Equal Opportunity Office. “Today’s settlement is a victory for families with children and reaffirms HUD and the Justice Department’s commitment to ensuring that the owners or rental properties understand their obligations under the law and take steps to meet that obligation.”

Coach’s Tip: Online advertising is a particular problem because it can draw the attention of enforcement officials and private fair housing organizations, which are actively monitoring online media to check for discriminatory ads, particularly based on familial status. Online ads suggesting a preference for adults or against children may draw their attention, triggering a broader investigation—with fair housing testers—into your policies and practices affecting families with children.

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