What's a Family? Complying with the Law in Light of Changing Family Structures

This month, Fair Housing Coach reviews the law banning housing discrimination based on familial status. After disability and race, it's the third most common basis—amounting to about 20 percent—of all formal fair housing complaints, according to HUD's most recent report.

Population trends and changes in family structures over the past 50 years could lead to even more claims in coming years. Social scientists have documented significant changes in the structure of American families, including a sharp drop in marriage, an increase in unmarried people cohabitating or raising children, and the emergence of same-sex marriage or other new family forms.

Not everyone is happy with these trends, according to researchers. A new report from the Pew Research Center found that Americans are sharply divided in how they view these changes. When asked about how they felt about changing demographic trends—including more unmarried couples raising children, more gay and lesbian couples raising children, and more single women having children without a male partner to help raise them—about a third generally accepted the changes, a third was tolerant but skeptical, and a third considered them bad for society.

Despite the sharp divide in attitudes about changing family structures, it's essential to prevent personal feelings from influencing your decisions about who may live in your community and how they are treated. The basic rules banning discrimination based on familial status are the same for both traditional and nontraditional families with children. Fair housing law protects any child under 18 living with individuals or couples—regardless of their marital status or sexual orientation. It also protects pregnant women and anyone—gay or straight—who are or are in the process of becoming adoptive or foster parents.

This month's lesson reviews fair housing rules protecting familial status, including who is covered and what is required to comply with the law. Then we'll suggest eight rules to avoid the common pitfalls that can lead to discrimination complaints by families with children—regardless of their form. Then, you can take the Coach's Quiz to see how much you have learned.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) prohibits discrimination in housing because of race, color, religion, sex, national origin, disability, or familial status. Among the practices banned under the FHA are excluding or discouraging prospects based on a protected characteristic, making statements that express a preference for—or against—prospects based on a protected characteristic, steering prospects to certain buildings or areas within a community based on a protected characteristic, and imposing different terms or conditions of tenancy based on a protected characteristic. These practices are illegal if based on any of the protected characteristics; claims based on familial status often arise because of confusion over just what the term “familial status” means.

It's generally understood that the familial status provisions apply to traditional families, composed of a married mother and father with at least one child under age 18. But the law is much broader than that. The FHA defines familial status as one or more children under the age of 18 “being domiciled with” any of the following individuals:

• 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.

The familial status provisions also apply to pregnant women and anyone in the process of securing legal custody of a child under 18.

The definition makes it clear that fair housing protections extend far beyond traditional families to encompass new types of family structures, such as unmarried couples or individuals—gay or straight—who are raising children. It also applies to pregnant women and individuals—regardless of their marital status or sexual orientation—who have (or are in the process of obtaining) legal custody of a child under 18, including adoptive or foster parents and court-appointed guardians. Furthermore, it applies to family members, friends, and anyone else who has written permission from the parent or guardian to have custody of the child.

The key is to remember that the familial status provisions are triggered by 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. If you keep that in mind, you can avoid triggering a fair housing claim regardless of any personal attitudes or opinions about changing family structures.

Finally, it's important to address one more misunderstanding that often leads to fair housing claims based on familial status: the exemption for “housing for older persons.” To allow retirement communities to operate, the FHA exempts housing for older persons from the familial status provisions, allowing them to lawfully exclude families with children. But the exemption applies only if the community meets strict technical standards; unless they do so, communities may not simply declare themselves as “adult communities” or exclude families with children under 18 from living there.

COACH'S TIP: 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 or older. The law requires strict adherence to the legal requirements to qualify for the exemption—even technical errors can lead to a fair housing claim. The October 2008 issue of Fair Housing Coach, “How to Comply with Fair Housing Law in Senior Communities,” explains the rules for qualifying as housing for “older persons” under federal fair housing law.

8 RULES FOR COMPLYING WITH FAIR HOUSING LAW REGARDING FAMILIAL STATUS

Rule #1: Don't Adopt Adults-Only Policies

Communities may run afoul of fair housing law based on familial status because of the mistaken belief that they may limit occupancy to only adults. Such a policy could be part of a marketing strategy to appeal to retirees, seniors, or the growing number of aging baby boomers, but it is unlawful to adopt or enforce adults-only policies unless the community qualifies under the exemption for housing for older persons. To qualify, the community must adopt and maintain policies and procedures to satisfy the law's technical requirements; otherwise, a community may be liable for damages under the FHA's familial status provisions.

Example: In November 2009, a Tennessee community agreed to pay $131,500 to settle a lawsuit filed by the U.S. Department of Justice, alleging that the community engaged in a pattern or practice of discrimination based on familial status. The settlement follows a 2008 court ruling that the community was liable for violating the FHA because it adopted an “adults-only” policy to deny residency by anyone under 21 or by families with children. Although the community claimed that it was exempt from the familial status provisions as housing for older persons, the court ruled that the community didn't satisfy all the requirements to qualify for the exemption. Consequently, the court ruled that the community violated fair housing law by discriminating against families with children [U.S. v. Fountainbleau Apartments, November 2009].

Rule #2: Don't Exclude Children Out of Safety, Liability Concerns

Fair housing complaints often arise when communities exclude families with children to alleviate safety concerns or liability for injuries to children—or to avoid potential noise problems or property damage caused by children. To ward off these problems, the law allows communities to adopt and enforce reasonable rules governing resident conduct, but not to prevent families with children from living there.

Example: In October 2010, the owner of rental property in Oregon paid nearly $87,000 to settle claims of discrimination based on familial status. The owner agreed to the settlement after a court ruled that she violated the FHA by refusing to rent to families with children and making statements indicating a preference against children living there. The owner said she was only concerned about the safety and welfare of the children, but the court ruled that her policies and statements violated fair housing law [U.S. v. Hadlock, October 2010].

Fair housing law also prohibits communities from excluding children to avoid liability for injury or regulatory responsibilities because of the presence of lead paint on the premises.

Example: In 2008, a court refused to dismiss a lawsuit charging a New York owner for violating the FHA based on familial status and state law based on sexual orientation. The case was filed by two lesbians, one of whom had a two-year-old son. According to the complaint, they applied for a two-bedroom unit, but the owner questioned them about the sleeping arrangements, prompting them to explain their romantic relationship.

Ultimately, the owner rejected the application, allegedly because of concerns about damage to the unit because of the couple's intent to get a puppy. Nevertheless, there was conflicting evidence about whether the owner was motivated by concerns about lead paint and the added liability of having a young child in the household, so further proceedings were needed to resolve the familial status claim. The court also refused to dismiss the sexual orientation discrimination claim. Although the owner claimed that he didn't know about the couple's sexual orientation, the women said that his questions about the sleeping arrangements were offensive and required them to explain their romantic relationship [Swinton v. Fazekas, March 2008].

In addition, communities may trigger fair housing complaints under state law if they exclude families to avoid liability for childhood lead-paint exposure. In Massachusetts, for example, it is illegal to refuse to rent or steer families away from rental properties because they have young children whose presence triggers an owner's duty to eliminate lead hazards that pose serious health risks.

COACH'S TIP: Older communities are subject to the federal Residential Lead Act, which requires landlords and sellers of housing built before 1978 to disclose to tenants and purchasers knowledge of lead-based paint or lead-based paint hazards. The law requires the use of a disclosure form, signed by both parties, attached to the lease or sales contract containing the required lead warning statement. The owner must also provide any available records or reports, and provide an EPA-approved “Protect Your Family From Lead in Your Home” pamphlet. Rental housing providers face hefty penalties and significant expenditures to remove lead-based paint if they fail to comply with the law. As of December 2010, federal officials reported that enforcement efforts have resulted in settlements requiring landlords to reduce lead-based paint hazards in more than 186,253 apartments nationwide at an estimated cost of $31 million and to pay more than $1.3 million in civil penalties.

Rule #3: Ensure Advertising Doesn't Reflect Preference Against Children

Review your advertising and marketing materials to eliminate anything that may suggest that children are unwelcome at your community.

Under the FHA, it is unlawful to make or publish any statements that indicate any preference, limitation, or discrimination based on familial status (unless the community qualifies as housing for older persons). The law applies to all advertising media, including newspapers, magazines, television, radio, and the Internet, according to HUD.

In its advertising guidelines, HUD explains that the law bans ads that limit the number or ages of children or express a preference for adults, couples, or singles. Discriminatory advertising includes language explicitly excluding children—such as “no kids,” “adults only,” or “21 years or older—and statements implying that families with children need not apply—such as “singles or couples only,” “singles preferred,” or “perfect for empty nesters.”

Communities are vulnerable to fair housing complaints for advertisements such as these—not only because they are unlawful in and of themselves, but also because they often draw the attention of fair housing officials and local advocacy organizations, prompting them to send testers to investigate the possibility of other fair housing violations.

Example: In March 2010, the owners, property managers, and management company of a luxury apartment complex agreed to pay $35,000 to settle claims that they refused to rent to families with children and advertised discriminatory “21 years or older” policies in multiple local newspapers. The ads caught the attention of a fair housing advocate, and later triggered a HUD complaint and investigation, which ultimately led the Justice Department to file the lawsuit [U.S. v. Joyce, March 2010].

In addition to the words and phrases used in advertising, the images and graphics in marketing materials and on your Web site could trigger a fair housing complaint based on familial status. The FHA's ban on making discriminatory statements applies to words, phrases, pictures, or graphics that expressly or implicitly suggest a preference for adults to the exclusion of children.

Rule #4: Apply Reasonable Occupancy Standards

Restrictive occupancy standards are a frequent source of discrimination complaints based on familial status. Fair housing law permits communities to apply reasonable occupancy policies, but it is illegal to set overly restrictive occupancy standards that have the effect of excluding families with children under 18.

As a general rule, HUD guidelines state that two people per bedroom—regardless of age or gender—is a reasonable occupancy standard, although it may reasonable to depart from this standard, depending the size of the bedroom, size or configuration of the unit, the age of the children, and other factors. Nevertheless, communities should be prepared to defend any decision to depart from HUD's general two-persons-per-bedroom standard to avoid accusations that the occupancy standards are being used to unlawfully exclude families with children.

Example: In July 2010, the developer, manager, and owner of a 224-unit affordable housing community in Florida agreed to pay up to $70,000 in a voluntary settlement with HUD to resolve allegations that the community limited occupancy to less than two persons per bedroom. According to HUD, the community's occupancy restrictions for its one-, two-, and three-bedroom units either denied families tenancy or forced them to pay more for their dwellings. As part of the settlement, the community agreed to adjust occupancy standards so that one-bedroom units house two people, two-bedroom units house four people, and three-bedroom units house six people [Conciliation Agreement, Cornerstone Residential Management, Inc., July 2010].

The HUD guidelines also defer to applicable state and local laws, which may differ from HUD's general two-persons-per-bedroom standard. 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-persons-per-bedroom standard, so it's important to review state and local laws in setting occupancy standards.

Example: In June 2010, the New Jersey Division on Civil Rights issued a Finding of Probable Cause against a 536-unit community for violating state law by applying overly restrictive occupancy standards. The division accused the community of unlawfully denying housing to a married couple and their two children, ages five months and 18 months. The couple filed the complaint, accusing the manager of refusing their request for a two-bedroom apartment because their family was too large. According to the division, the community allowed a maximum of three people to occupy a two-bedroom unit, even though local and state housing codes don't count children under age 2 as additional occupants [Neary v. Davis Enterprises, June 2010].

When enforcing occupancy standards, make sure that personal attitudes and opinions don't 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.

Rule #5: Don't Restrict Families with Children to Certain Areas in the Community

Tell prospects about all vacancies that fit their needs, regardless of whether there are children in the household. Assigning families with children to only certain areas within in the community would amount to discrimination based on familial status. The FHA bans steering—that is, guiding, directing, or encouraging prospects to live in a particular part of your community based on a protected characteristic.

Although you may believe that families with children would be happier in buildings near play equipment, you may not require families with children to live only in the adjacent area. By the same token, you may not refuse to show families with children vacancies in other areas to prevent noisy children from disturbing the neighbors.

Example: In October 2010, the owners and manager of a Washington community agreed to pay $12,500 as a civil penalty to settle allegations that they discriminated against families with children in violation of the FHA. During tests conducted by the Housing Section's Testing Unit, the rental manager allegedly disclosed that there were one or more buildings at the complex where children were not allowed to reside because of the perception that children were too noisy, and out of consideration for older residents who didn't want to live near young children [U.S. v. Krause, October 2010].

Furthermore, you may not prohibit or discourage families with children from living on upper floors, even if you have safety or liability concerns about young children falling from windows or balconies.

Example: In October 2010, the Justice Department sued the owner and manager of a 26-unit apartment building in Ohio for discrimination against the mother of two children, ages 4 and 10 months, by refusing to rent upper-level units to families with young children. The mother filed a complaint with HUD after the manager allegedly refused to show her a second-floor unit. According to the complaint, the community had a practice not to rent units above the ground level to families with young children. Allegedly, the manager admitted that she had conversations with parents of young children in which she “always communicated” safety concerns about the building, and that after these conversations, these potential tenants often changed their minds about renting at the building [U.S. v. Testa Family Enterprises October 2010].

Rule #6: Don't Charge Extra Fees or Impose Special Conditions Based on Familial Status

The FHA prohibits discrimination in the terms or conditions in the rental of a dwelling based on familial status, so you may not impose any special conditions when renting to families with children. Even if you have concerns about potential damage to the unit caused by young children, it is unlawful to require applicants to pay a higher security deposit or extra fees based on the presence or number of children in the household.

Example: In September 2009, the owners and managers of a mobile home community agreed to pay up to $134,000 to settle allegations of discrimination against families with children. According to the complaint, a woman with three children tried to rent at the mobile home park, but the community turned her away because she had too many children to live in the park. The complaint also alleged that the community imposed extra fees on residents with children and allowed no more than two children per household to occupy a mobile home [U.S. v. Witherington, September 2009].

Rule #7: Ensure Community Rules Don't Unfairly Target Children

Communities may establish and enforce reasonable rules to protect their property and ensure the peaceful enjoyment of the premises by their residents. But you must ensure that your rules don't impose unfair restrictions on families with children. For example, rules governing resident behavior in common areas, such as hallways, parking lots, and outside spaces serve a legitimate purpose—to safeguard property and ensure safety. But you may face a discrimination claim if your rules unreasonably target children or limit their behavior.

Example: In February 2010, a California court approved a $100,000 settlement to a family with two small children after ruling that a community violated federal fair housing law by adopting a number of overly restrictive rules governing children's behavior. One rule required adult supervision of children 10 and under when outside, but the court said it unfairly targeted children. Although it would be reasonable to require adult supervision of young children, the court said that the limitation on children as old as 10 was unduly restrictive.

The court also found that other community rules amounted to discriminatory statements under fair housing law, including a rule banning the use of the clubhouse by children under 18 without the supervision of an adult resident; prohibiting children under 12 from using the pool table; and requiring children under 18 to abide by a 10 p.m. curfew. The court also said that a rule requiring children under 14 to be supervised by a parent or guardian when using the pool amounted to a discriminatory statement. Although there was an inherent danger in unsupervised swimming, the requirement of parent or guardian supervision transformed the rule from a safety precaution to one that simply limited children and their families [Pack v. Fort Washington II, February 2010].

Even if the community rules apply to all residents, you must enforce them against all residents—regardless of age. You may be accused of discrimination based on familial status if you selectively enforce general rules governing resident behavior only against families with children.

Example: In November 2010, a Massachusetts condominium association agreed to pay $150,000 to resolve allegations of familial status discrimination by imposing excessive fines on residents with children for violating rules governing children's playtime activities. The case began when five families with children filed fair housing complaints, accusing the community of selectively enforcing rules banning organized sports activities and other activities in common areas. Although the community argued that the rules applied to all residents, the Justice Department alleged that the community fined families with children more than $500 when their children played games—such as tag and Wiffle ball—on the complex's outdoor common area, yet fined other residents only $10 for similar rules violations [Stewart v. Stonecleave Village Association, Inc., November 2010].

Rule #8: Don't Discriminate Against Residents for Adding a Child to the Household

Communities may be accused of violating fair housing law if they discriminate against applicants or residents—individuals or couples, regardless of marital status or sexual orientation—for bringing a child into their households. Fair housing rules banning discrimination based on familial status apply not only to families with children under 18, but also to pregnant women and others who have or are in the process of adopting or obtaining custody of a child.

Example: In April 2010, HUD charged the owners of several apartment buildings in suburban Philadelphia with discrimination by illegally terminating the lease of a single woman because she adopted an 11-year-old child. According to HUD, the family was forced to move to a new town, depriving the 11-year-old boy of his school, friends, and the aunts that he visited regularly. HUD also accused the owners of making discriminatory statements indicating that they didn't rent to families with children and that they discouraged other families from applying for available rental units by understating the number of bedrooms [HUD v. Trucksess, April 2010].

Fair Housing Act: 42 USC §3601 et seq.