Site Manager's Applicant Screening Is Discriminatory

Facts: An applicant for a rental unit in Tonawanda, N.Y., alleged that a site manager denied her housing because she has a family with children. After seeing a for-rent sign outside the Sherwood Terrace Apartments, the prospective renter spoke with the site manager by telephone and made an appointment to see a unit. When the site manager first saw the applicant, he asked if the two children accompanying her would be living with her. She said they would. The site manager replied, “I won't rent to you because they can fall off the balcony and you could sue me and own half my apartments.” The site manager later told a fair housing tester and repeated in a hearing before an administrative law judge that he did not like to rent third-floor units at the site to families with young children because of the risk that they could fall from the balconies. At the hearing he added, if there is not a safety exception to the Human Rights Law, “I feel there should be.”

After hearing testimony, the judge concluded that the site manager's screening criteria placed unlawful limitations on families with children. “It is…a clear violation of the [New York State] Human Rights Law to place limitations and specifications on rental applicants because they have families with children.” In the judge's view, the manager “conveniently hid his discriminatory actions behind safety concerns, noise concerns, and gratuitous ‘fatherly’ advice.” Based on the judge's recommendations, the commissioner of the New York State Division of Human Rights awarded the applicant $10,000 in punitive damages and over $16,000 in compensatory damages. The commission also imposed a civil penalty of $8,000 and awarded damages of nearly $11,000 to a fair housing organization that assisted the rejected applicant. Citing a lack of necessary evidence, the site manager appealed the commission's order to the state Supreme Court.

Decision: The Supreme Court of New York, Appellate Division, upheld the commission's decision.

Reasoning: The court concluded that the commission's decision was sound and supported by substantial evidence.

• Sherwood Terrace Apartments v. NYS Division of Human Rights, April 2009

PRACTICAL POINTER: Familial status is a protected category under federal law, not just New York State law. In most circumstances, the federal Fair Housing Act makes it unlawful for housing providers to set special conditions on applicants or residents who have custody of children. You may not discriminate against families in which one or more children under 18 live with a parent, with a person who has legal custody of the child(ren), or with the designee of the parent or legal custodian. According to HUD guidance, familial status protection also applies to pregnant women and any person who has legal custody of a child under 18. Some housing for elderly persons is exempt from the federal requirements.