All associations are subject to the federal Fair Housing Act (FHA) and its antidiscrimination provisions for protected classes. However, few boards, and even community managers, are familiar enough with the Act to be able to identify the ways they could be exposed to claims of discrimination.
The supreme piece of advice for managers and boards is to consult with the association attorney to address discrimination-based concerns that may arise. More often than not, discrimination by an association occurs in a more subtle form—not by direct mistreatment but by enforcing a rule that has the effect of discriminating against a protected class. This is especially the case with issues involving the “familial status” and “disability” classes
Discrimination based on familial status
Associations often unintentionally discriminate based on familial status by denying children equal use of common areas. FHA prohibits discrimination “in any use of a dwelling because of race, color, religion, sex, handicap, familial status or national origin.” “Use” of a dwelling in a community association also includes enjoyment of common facilities such as swimming pools, clubhouses and gyms. Associations can inadvertently discriminate through:
- Poolside restrictions prohibiting use based on age
- Preventing children playing in common areas
- Mandating supervision by a parent (as opposed to an “adult”)
Although safety is often the reason for such rules, look for ways to be less restrictive in the language. If a rule is written in the least restrictive way to achieve safety, it’s likely such a rule will be upheld.
Discrimination based on disabilities
Discrimination claims from disabled residents usually have to do with the association’s failure to provide a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including the common areas. Such “reasonable accommodation/modification” would include, but not be limited to, requests for:
- Close/preferred parking spaces
- Support/service animals
- Group homes allowances
- Interpreters to help the hard-of-hearing participate in important decision-making activities
Discrimination of this class is rarely blatant. But an association’s inability to address a reasonable accommodation request could be a point of contention for a claimant.
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