Discrimination Do’s and Don’ts

Landlords, realtors, and office staff who screen tenants need to be aware of federal and state law around discrimination. It is unlawful to refuse housing to someone on the basis of their membership in a so-called “protected class.” Here are the discrimination do’s and don’ts that we all need to be mindful of.

Federal Law

The federal protected classes are:

• Race
• Color
• Religion
• Sex
• National origin
• Family status
• Disability

“Race” means the physical or cultural characteristics associated with someone’s background and genetic makeup. It could be skin color, hair texture, or facial features, for instance.

“Color” specifically means people with lighter or darker skin. Back in our very racist past, it used to matter to some people whether you were mixed white & black, or all-black, or all-white. We even had separate words for the different blends. Color discrimination is now illegal, no matter what color your own skin. Read more at the EEOC.

“Religion” means if someone is a Christian, Muslim, Jew, Buddhist, Hindu, Sikh, Wiccan, Pastafarian or any other religion, or any sect or variation. Case law seems to have established firmly that cults are equally protected under the First Amendment.

“Sex” means male or female. In a recent federal court case, Grimm v Gloucester County School Board, the law prohibiting discrimination on the basis of sex was invoked after a transgender boy was denied access to the boy’s locker room. Remember: your rental applications can’t ask which private parts someone has.

“National origin” means where someone is from or appears to be from. This was a big deal to World War II veterans, who couldn’t discriminate against Japanese or Germans. To later generations, it meant no discrimination against North Koreans or Vietnamese. It applies equally to the present day. Assume the applicant is not responsible for the actions or interactions of their former nation.

“Family status” means elders, children and marriage. If someone has more or fewer children than you think they should have, or is more or less married than you think they should be, or cares for more or fewer live-in elders than you would prefer, your assessment of their situation cannot be used to deny them housing.

“Disability” is an importantly broad category. It includes physical handicaps, as well as psychological and emotional disabilities, and also, microbiological disabilities. Discrimination on the basis of HIV status, for instance, has been determined to be illegal. Good news: you can’t get “the AIDS” from a rental application.

State Law

The Commonwealth of Massachusetts has added its own bullets to the long list of protected classes.

• Sexual orientation
• Gender identity
• Marital status
• Age
• Ancestry
• Genetic information
• Veteran status
• Membership in the armed forces
• Receiving public assistance

“Sexual orientation” means whether a person prefers to have relationships and/or sex with men, women, both, or neither (asexual). As tenant screeners, we must remember that what happens in private moments is none of our business.

“Gender identity” means whether someone expresses themselves as male, female or a mix, regardless of how you think they should express themselves on the basis of their biological sex. Keep it businesslike always and it needn’t come up in conversation.

“Marital status” is an extra layer on top of the federal law around “family status”. The intent is to make it clear that cohabiting singles, with or without children, and single parents cannot be denied housing because they are not married, no matter what your religion.

“Age” means young, old, and middling. You need to know whether someone is over 18 and lawfully required to sign a rental agreement. You need to know whether someone is under six years old and requires a deleading certificate. There is nothing else you need to know.

“Ancestry” is an extra layer on top of the federal law around national origin. The intent is to make it clear that the children of someone from a country you hate cannot be denied because of their parents’ country.

“Genetic information” applies mostly to health insurance companies. It’s unlikely this would apply to rentals, but if you do get someone’s cheek swab, don’t use it to decline their rental application.

“Veteran status” is specifically addressing the political aspects associated with unpopular wars. You might think this means “Vietnam” but actually the law around veteran status was c. 2004. Don’t blame someone for doing their job. Say, “Thank you for your service.” It’s rare to find a tenant who would risk taking a bullet for their landlord.

“Membership in the armed forces” is the present-tense version of “veteran status.” If someone is currently in the military, about to be deployed for nine months to leave their apartment empty, you need to work through their not being at home at all. Being in the armed forces is not a disqualifier.

“Receiving public assistance” is the Massachusetts bombshell. Public assistance is importantly broad: Section 8, MRVP, RAFT, HomeBASE, Food Stamps (SNAP), WIC, Social Security, Disability, or any other public help cannot be a disqualification on an application. This seems to be true even if their assistance requires certain actions or agreements from the landlord.

Theoretical Advice

Do not make rental decisions on the basis of any of these categories. Don’t do it even obliquely or in a misguided attempt to be nice or helpful.

When in doubt, engage in dialog about how someone’s differences may impact your business, your other customers, and their ability to pay. Reasonable accommodations must generally be granted; unreasonable ones must not. Dialog can show the difference.

Try to avoid conversation topics that would lead to a discussion of protected classes. If a tenant says, “Oh, this basement storage area would be perfect for our cult ritual,” ask whether they plan to store any hazardous or flammable materials, and then move on.

Just because someone is in a protected class doesn’t mean you have to rent to them. You can deny an applicant for having too little income even if they fit into every single protected class. Just don’t deny them because they’re in one of the protected classes.

Read more about enforcement and real examples online.