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  • Writer's pictureMichael Shifrin

The Role Discrimination Plays in Condo and Community Associations

Discrimination Within Condo and Community Associations

The death of George Floyd in 2020 at the hands of police officers spotlighted widespread racial injustice in this country. It reinvigorated a nationwide outcry of equality for all. Energized protests, looting and rioting ravaged cities and suburbs throughout America. Without question, racial discrimination – discrimination of any kind – has no place in this country. Similarly, discrimination has no place in community associations. Now more than ever boards must be extremely thoughtful and considerate when drafting new association policies, when enforcing them, and when managing unit owner requests for reasonable accommodations.

Drafting Non-Discriminatory Association Policies

Drafting association rules and regulations in and of itself is a difficult task. The Illinois Condominium Property Act and the Illinois Common Interest Community Association Act require all rules to be “reasonable.” The word “reasonable” is ambiguous and subject to interpretation. Ensuring new rules and regulations are non-discriminatory adds an additional layer of complexity. Condominium and community associations are subject to a federal law known as the Fair Housing Act and a state law called the Illinois Human Rights Act. Both laws prohibit discrimination by providers of housing (including associations), based upon race or color, religion, sex, national origin, familial status, or disability.

There are three categories of discrimination boards must consider when drafting association policies: 1) overt discrimination; 2) differential treatment; and 3) disparate impact. Of the three, disparate impact is the most important to remember when creating new association policies. Disparate impact refers to the creation of a policy that is uniformly applied but still has a discriminatory impact on people within a protected class and is not justified by a business necessity. An example of a disparate impact policy may be a rule that prevents children from residing in a one-bedroom unit within an association. Such a rule could be construed as having a disparate impact on families with children (familial status) - which is a protected class under amendments to the Fair Housing Act – because it treats potential owners/occupants with children differently than owners/occupants without children. This can be tricky because such a rule may seem plausible given the relatively small space afforded in a one-bedroom unit. Further, the rule when evenly applied may not appear discriminatory on its face because larger units are available to purchase or rent within the Association offering alternate choices. Yet such a rule may be considered discriminatory based upon the “disparate impact” it has on families. Due to such uncertainty, it is strongly recommended that boards have new association policies or practices reviewed by legal counsel before moving forward with adoption.

Non-Discriminatory Enforcement of Association Policies

Boards should be mindful of the concept of “differential treatment” when enforcing association policies. Differential treatment consists of the unfair treatment of one person compared to another because of their membership in a protected class. An example would be the board’s unequal enforcement of a no overnight street parking rule. The rule itself is reasonable, valid and enforceable. Three homeowners that live next to one another park their cars overnight on the street and have done so for four months straight. The board has been alerted to these ongoing violations. Two vehicles are owned by white men and the third vehicle is owned by a Muslim woman. The board sends a violation notice to the Muslim woman to immediately stop parking her vehicle overnight on the street. It does not, however, send a violation notice to either white man.

In this hypothetical, the board has engaged in differential treatment of association members. It has targeted a member of a protected class based upon national origin and ignored two similarly situated violators. Depending upon which legal forum a discrimination complaint is filed, the association could be liable for punitive damages, civil penalties and attorneys’ fees and costs. The best rule of thumb for boards is to uniformly enforce association policy against all owners and residents. The Board’s enforcement of covenants and rules should not take the ethnicity, origin, religious or racial background of the specific offender into account.

Evaluating Unit Owner Accommodation Requests

Boards will receive disability related accommodation requests from unit owners and residents from time to time. Evaluating whether a request is “reasonable” and necessary can be challenging and costly if the wrong decision is made. A “reasonable accommodation” is defined as an exception, change or adjustment to a rule, practice or policy that is necessary for an individual with a disability to have an equal opportunity to use and enjoy their unit. There exists a three-step process a board should follow to determine whether an association is required to make an exception.

1. Determine whether the requesting individual qualifies for an accommodation.

2. Determine whether the accommodation is related to the individual’s disability.

3. Determine whether the accommodation is reasonable.

To qualify for an accommodation, the requesting individual must have a “disability” as defined by law. A “disability” is a physical or mental impairment which substantially limits one or more of an individual’s major life activities.

If an individual qualifies for an accommodation, there must be a clear connection between his or her disability and the requested accommodation. For example, a blind person is considered disabled under the Fair Housing Act. They have an impairment – seeing – that substantially limits their ability to engage in major life activities (walking, driving, etc.). The Board may grant this owner an exception to its no pet rule and allow him or her to have a seeing eye dog. There is an obvious connection between the disability and the requested accommodation. On the other hand, a blind individual’s request for use of a separate elevator may not be a close enough connection to justify granting the request. Unless the individual’s disability is obvious, and the accommodation clearly relates to the disability, the association may wish to request additional information from the requesting owner. Due to certain legal concerns in making such a request, it is best that they be made with the assistance of legal counsel.

The third and final step requires the board to determine if the owner’s accommodation request is “reasonable.” To be considered “reasonable,” an accommodation cannot create an undue financial or administrative burden on the association or fundamentally alter the association’s operations. For example, a blind man’s request to have a service animal live with him despite the no-pet rule is typically reasonable. It does not place undue financial or administrative burden on the association or fundamentally alter the association’s operations. Contrast this request with a blind man’s request to reserve one of the association’s elevators for his exclusive use due to his disability. Such a request would not be deemed “reasonable” as it would place an undue administrative burden on the association and would fundamentally alter the association’s operations and use of its elevators.

Discrimination related issues are real and ongoing concerns for condominium and community associations. They are complex matters that require a developed understanding of applicable federal and state law. For these reasons, boards are well advised to consult with association legal counsel whenever drafting association policy, enforcing them, and reviewing disability-related accommodation requests.

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