How to Avoid Discrimination Based on Someone’s Sex

By Kimberly Rau, MassLandlords, Inc.

Federal and state laws have defined people’s sex as a protected class for years. Massachusetts took it a step further and added sexual orientation and gender expression as protected classes. In  2020, the Supreme Court agreed, protecting both classes under Title VII.

Sometimes it’s easy to spot the differences between male and female animals (our mallard’s bright green head is hard to miss), but people are more complicated. Treat potential tenants fairly and don’t rely on assumptions or stereotypes surrounding the difference between the sexes when making conversation. Image License: Pixabay

As a landlord, you probably understand that essentially nailing a “No Boys/Girls Allowed” sign to the front of your triple decker is not going to fly, but just in case you need some brushing up on the finer points of the law, read on.

Avoid Stereotypes

There are plenty of stereotypes, or tropes, about the difference between the sexes. Many of them are over-exaggerated in the entertainment industry (how many sitcoms are there that rely on the setup of a control-freak, detail-obsessed woman married to an oafish man who can’t remember her birthday?), but they’re also prevalent in everyday society, whether you notice them or not.

Consider these examples.

“When you come to the apartment tour, be sure to bring your wife. We all know women are the ones who care about how the place looks,” or the opposite,

“Is your husband coming with you? We’ll want to get his approval.”

When showing a rental house: “The door to the laundry room in the basement is a little low, so I guess your wife will have to do all the laundry!” or,

“The last guy who lived here really liked to do woodwork in the garage, but don’t worry, we’ve also updated the kitchen for your wife, too!”

“I don’t like to rent to groups of guys. They have too many loud parties.”

“I love renting to women, they always keep the place so clean.”

Do any of these sound familiar? Maybe you’ve thought them yourself. Our experiences mold our world view, but anecdotes are not the same as data. Even if every woman you’ve ever rented to has been a neat freak, there are plenty of women who don’t care about housekeeping or maintenance. Not every male student is looking to recreate Animal House in your off-campus suburban rental. And plenty of men care about the “little touches” in an apartment that some may think only women will notice.

To be sure you aren’t saying something discriminatory on the basis of someone’s sex, here’s a technique you can use to check for hidden bias. Ask yourself if the comment you want to make would still make sense to you if said to someone of the opposite sex. If so, then you’re doing fine. If not, don’t say it! Your comment may be discriminatory on the basis of that person’s sex.

Say No to Sexual Harassment

Sexual harassment can take many forms. It can be obvious, for example, offering a quid pro quo arrangement where you decrease the rent or approve an application in exchange for sexual favors. It can be sexually suggestive gestures or inappropriate jokes, or inappropriate comments on someone’s physical appearance (pro tip: don’t comment on someone’s appearance when it’s not relevant to the task at hand). It can be putting someone in an uncomfortable situation, such as repeatedly pressuring someone for a date, or making suggestive “jokes” that aren’t really jokes at all (“I’m only kidding, unless you’re interested, and then I’m serious”). It can be staring or obviously checking someone out.

Taking advantage of a power dynamic to get something you want is never okay. Being in a position of power (or perceived power) over someone else means that you have more influence over their actions than you might on a level playing ground. The #metoo movement that started in 2017 brought public attention to instances of sexual assault and harassment, often between people with uneven power dynamics. One of the first and most notable scandals to come to light involved Hollywood producer/director Harvey Weinstein, who was removed from the board of The Weinstein Company after multiple women came forward with allegations of sexual abuse and misconduct. Many of the women were actresses who would have been under Weinstein’s sphere of influence. (Weinstein has denied the allegations of non-consensual sexual activity.)

In this instance, you as the landlord hold more power than your tenant or potential tenant, and taking advantage of that can land you in real trouble, as this recent Oklahoma housing case showed.

Sex, Gender, Being Transgender, All Protected

These housing protections apply to someone’s sex and gender. Typically, this means you cannot choose to rent to men simply because they are men or women simply because they are women.

However, the way someone presents or identifies may or may not be the sex or gender they were assigned at birth. (There is a difference between sex and gender, though the terms are often erroneously used interchangeably.) Someone’s sex is not the same as their sexual orientation (a transgender person may be straight, gay, bisexual or any other sexuality), and transgender protections fall under protections against sex discrimination.

In other words, what genitals someone has, or that you presume they were born with, cannot factor into your decision when choosing tenants. Neither can the gender they choose to present to the world.

Conclusion

This one is an easy one. There are plenty of legitimate reasons to deny someone a tenancy (criminal history, income, credit score, pets), but someone’s sex is not one of them. Don’t make it a factor in your decision.