How to Prove Housing Discrimination Against Families with Children

“We know through painful experience that freedom is never voluntarily given by the oppressor, it must be demanded by the oppressed.” ~Martin Luther King Jr.

Most rarely give much thought to families with children being oppressed in this country. But families with children are all too often oppressed by their landlords. When Congress added familial status as a protected class in 1988 to the Fair Housing Act, it did so after HUD studies showed that 25% of apartment complexes banned children altogether. Another 50% of apartments imposed other limitations on families with children, such as compelling them to live in certain portions of the apartment complex or limiting the number or age of children allowed. Not surprisingly, after familial status was added as a protected class, discrimination against families with children continued, and it has become more and more subtle as the years have gone by. Put simply, discrimination against families with children in the housing arena is an ongoing concern.

How is a family with children supposed to know if it is being discriminated against by its landlord? Let’s look at some of the potential indicators from the time a person first inquires about the rental up through the end of the tenancy. Some of these indicators will be obvious, while some are surprising.

Available Units

When potential tenants visit an apartment complex for a first time, they typically are told about all the available units. But when families with children visit an apartment complex, they sometimes are intentionally shown only some of the available units, and some are told that they can only have a downstairs unit because of the noise concerns. That’s illegal. Families with children can live in any available unit: upstairs or downstairs. The choice is theirs; not management’s.

Who is Going to be Living with You?”

Speaking of visiting an apartment complex for the first time, managers occasionally like to inquire about how many children will be living at the apartment and what are the ages of those children. It seems reasonable, right? But these questions can be disguised attempts to discriminate against families with children, for some apartment complexes want nothing to do with young children. Briefly stated, the topics of discussion between a manager and prospective tenants speak volumes about what management deems as preferred tenants. Conversations initiated by management about children should be viewed with a grain of suspicion.

Occupancy Restrictions

Occupancy restrictions also are often used as smokescreens to discriminate against families with children. If there is an occupancy restriction, then you want to see if it is actually in writing. Or is it only mentioned when families with children show up? I handled a case where the landlord only mentioned his occupancy restrictions when families with children were interested in his rental units. Such treatment is discriminatory. Next, are the occupancy restrictions enforced uniformly and fairly. This can take some work to find out, but it is obviously a gold mine of evidence. For example, if there are four college students in a one-bedroom unit, but a mother and father and their two children are not allowed to rent a one-bedroom unit because it violates the landlord’s occupancy restrictions, then there is a problem. Occupancy restrictions have to be enforced uniformly, not only against families with children.

Leases, Rules, and Regulations

Rental documentation, along with the rules and regulations for apartment complexes, often contains provisions dealing with supervision of children. In a recent case that my firm handled, Roman v. MSL Capital, LLC, Case No. EDCV-17-2066-JGP (SPx) (C.D. Cal. Nov. 5, 2018), the district court ruled that the landlord’s publishing of an adult supervision rule violated two different sections of the Fair Housing Act, in addition to two sections of California’s Fair Employment and Housing Act. The district court stated, “The [adult supervsion] rule explicitly burdened families that included children, requiring parents to be present and supervising children in areas outside of their apartment, a burden not placed on families without children or on single adults living in the Complex.” Put simply, if a lease or rules and regulations contain an adult supervision rule, then discrimination is in the air.

Repair Requests

Another indicator of potential discrimination against families with children can be found in the response time to repair requests. If a landlord takes a week or so to fix a family with children’s repair requests, but does same day or next day repairs for adult-only households, then this can be an indicator of discriminatory treatment. Obviously, it can be difficult to find out how long it takes management to respond to repair requests, but with a little asking around, one can typically get a sense for the presence of discriminatory treatment.

Late Rental Payments

In a typical apartment complex, rent is due on the 1st of the month and late a few days later. But how that is enforced is typically indicative of whether management discriminates against certain protected classes. For example, I recently was investigating a case and in the process I was talking with adults from several different households who lived at the complex without any children. Time and again they told me that the manager was completely understandable if you had to be late. “Don’t worry about it; just pay when you can,” the manager told them. None of them was ever charged a late fee for being late. But when I talked to adults who had children, I immediately heard a different story. “Oh, if you’re late, then they always charge you a late fee.” Put simply, the way management treats people who are late on their rent can reveal proof of discrimination against families with children.

Bikes, Scooters, and Toys

One former client of mine once told me about buying her eight-year old son a bike for Christmas when they lived at an apartment complex. Her son was so excited when he got the bike on Christmas morning that they promptly went out into the common area of the complex so he could ride his new bike on Christmas morning. Before long, the manager came out and told the young boy that he was not allowed to ride his bike at the complex.

Was that discrimination? While the rules and regulations of the apartment complex stated that there was no bike riding (or scooter riding or playing with toys, for that matter), adults customarily rode their bikes on and off the property without any warnings. Put simply, sometimes rules that on their face apply to everybody simply are not enforced fairly. This is often the case with rules about bike riding. In a nutshell, unfair enforcement of neutral rules results in unlawful discrimination.

Visits to Check the Condition of the Apartment

California law is specific as to when a landlord may enter into a tenant’s apartment. Going into a tenant’s apartment for an “annual lender inspection” simply doesn’t make the list. Yet families with children are occasionally asked to give management access to their apartments for such inspections. In reality, management secretly wants to go into the tenants’ apartment to snoop around to see if families with children have caused any damage to the unit. Security deposits, quite frankly, are designed to protect landlords in the case of damage to the unit. Excess damage, moreover, can be recovered in civil lawsuits. But accessing apartments rented by families with children for such reasons may be an indicator that families with children are being subjected to discriminatory treatment in violation of the Fair Housing Act.

Noise Complaints

One of the most common ploys of landlords is to accuse families with children of being too noisy, so that they can evict them. All too often the manager knows where to go if he or she needs to find a tenant to complain about noise. Children often are noisy when they play, so it is not hard for a manager to find the habitual complainer at the complex and simply ask that person to file a written complaint about the noise. The manager then serves a warning notice (or two or three) on the family with children about the noise complaints that the manager has received. Before you know it, the family with children is receiving a Three-Day Notice to Quit.

How do you prove discrimination in that situation? First, you want to look at how other people creating noise have been treated. This takes some effort. But as you ask around, you often will learn that certain tenants have had loud music blaring with regularity, and management has done nothing but ask the tenants to turn down the music. You may learn of tenants who have thrown loud parties to which the police were summoned, yet seemingly there were no consequences for the loud party. How management responds to those noise complaints is often indicative of whether all noise deemed excessive is prohibited, or only noise by children. Next, look at the timing of the service of the warning notices. Did the warning notice come shortly after the parents complained about their children not being able to ride their bikes, etc.? Put simply, managers often retaliate against tenants who complain about unfair treatment.

At the end of the day, proving familial status discrimination can be laborious. But when my firm has been able to bring about change that liberates families with children, it is a joyous event. For over 20 years, I have been fighting on behalf of tenants whose rights have been violated under the Fair Housing Act and related state laws, including the Fair Employment and Housing Act. So If I can answer any questions, please, do not hesitate to contact me at (858) 220-9601.



Published by

Stuart E. Fagan

Fair housing litigator with over 25 years' experience accepting cases in California and Illinois (Coming Winter 2020)