Owner Instructions That Cross the Fair Housing Line
Licensee Tom manages 14 units for owner Rita. Rita emails: "New ad: 'Quiet adult building - no kids, no pets, no Section 8.' Also, ask every applicant where they're originally from and whether they're married, and whether they're planning to start a family. If someone shows up with a service dog, tell them we don't allow pets." One applicant who uses a wheelchair asks for a reserved space next to the ramp as an accommodation. Another applicant mentions she is pregnant and unmarried. Tom wants to keep the management account and asks how much of this he actually has to follow.
1. Evaluate each instruction. Which are unlawful, which are merely risky, and why?
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"No kids" / "adult building" - unlawful. Familial status discrimination. The only escape is qualified housing for older persons (62+, or 55+ with at least 80% of units occupied by a household with someone 55+ plus published policies and verification). A 14-unit building with no such program does not qualify.
"Ask where they're originally from" - unlawful. National origin discrimination; inquiries that screen on it are evidence of intent.
"Are you married?" - unlawful in Montana. Marital status is a protected class under Montana's human rights law (it is not covered by the federal Fair Housing Act, which is exactly the trap); the pregnant, unmarried applicant is being screened on both marital status and sex/familial status.
"Planning to start a family?" - unlawful. Sex and familial status; pregnancy discrimination is sex discrimination.
"No Section 8" - not protected under federal law, and Montana does not add source of income as a protected class, so a blanket refusal is generally lawful unless a local ordinance or a program rule says otherwise, or it is applied as a proxy for race or familial status. Verify local ordinance before using it.
"No pets" in an ad - lawful on its face, but it must not be applied to assistance animals.
2. How should Tom handle the service-animal request, and what may he not do?
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An assistance animal is not a pet. It is a reasonable accommodation for a disability, so the no-pet policy does not apply to it.
May: ask for reliable documentation of the disability and the disability-related need when the disability or need is not readily apparent; ask what work or task the animal performs; apply ordinary conduct rules (the animal cannot be uncontrolled or a threat).
May not: charge a pet fee or pet deposit; require a specific form or a professional "certification"; demand medical records or a diagnosis; ask about the nature of the disability; deny because of breed, size, or insurance assumptions.
The owner's instruction: Tom cannot pass it along. Following an owner's discriminatory instruction is Tom's own violation - "the owner told me to" is not a defense for a licensee. He should tell Rita in writing that assistance animals fall outside the pet policy, that he will grant the accommodation, and that the association or insurer will be handled separately.
3. What does Tom do with the parking request, and how does he protect himself against the rest of Rita's email?
Read the worked answer
Parking: treat it as a reasonable accommodation request. Grant a reserved space near the ramp promptly unless it imposes an undue financial and administrative burden or fundamentally alters the housing program (a 14-unit lot almost never meets that bar). Document the request date, the conversation, the decision, and the date granted. Generally do not charge extra for the accessible space when the fee structure is the same for all spaces.
Protecting himself:
- Reply to Rita in writing, itemizing which instructions he cannot follow and the protected class implicated by each.
- Rewrite the ad himself and keep the approved version in the file.
- Give the applicant no reason to think the pregnancy or marital status mattered - communicate only on neutral criteria (income, references, occupancy standards).
- Keep a paper trail of the refusal. If Rita insists, decline the account rather than execute the discrimination; continuing to act on the instruction converts the owner's liability into the licensee's.
Remedy exposure: an aggrieved applicant can file with HUD or the Montana Human Rights Bureau; the manager's file is the first thing subpoenaed.