The "Equal Treatment" Screening Script
Nadia is the broker-owner of Lakeview Realty and has just taken over management of a 40-unit apartment building's rental listings. Her office manager, Theo (unlicensed), drafts a tenant screening script to make processing "consistent." The script says: (1) ask each caller how many people will live in the unit and whether any are children; (2) ask whether the applicant receives any disability or public assistance income; (3) require a credit score of 700; (4) require that the applicant be able to communicate in English without an interpreter; (5) for applicants with service animals, require a $300 pet deposit and a letter from a doctor. Nadia reviews it and says, "Looks neutral to me - we apply it to everyone equally." A caller with a wheelchair and a housing voucher is told the unit is "already taken" after Theo learns about the voucher.
1. Analyze each of the five script elements under fair housing law. Which are unlawful, and which are permissible if applied correctly?
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Asking about number of occupants is permissible for occupancy standards, but asking specifically whether any are children is not - familial-status discrimination. Ask only the number of occupants and apply a lawful occupancy standard.
Asking about disability or public-assistance income is unlawful. Source-of-income discrimination is prohibited in New York, and inquiring about disability is a fair-housing problem. Income verification should be neutral (e.g., lawful, verifiable income of any source).
A 700 credit score requirement is not per se unlawful, but a rigid cutoff that has a disparate impact and no business justification is risky; it also must accommodate applicants whose credit is affected by disability-related circumstances. Best practice: a stated, justified rental criterion applied with flexibility and documented exceptions.
Requiring English fluency without an interpreter is national-origin discrimination. Language ability is not a lawful screening criterion.
Service animals are not pets. Requiring a pet deposit for a service animal is unlawful, and demanding a "doctor's letter" as a condition is the wrong framework - a housing provider may request reliable documentation supporting a disability-related need, but cannot charge pet fees or impose pet rules on assistance animals.
2. Nadia says the script is fine because it is applied equally to everyone. Explain why "equal treatment" does not save this policy.
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Fair housing liability does not turn only on intent or evenhandedness. Two independent theories apply:
Disparate treatment: applying a rule because of a protected characteristic. Theo's "already taken" statement after learning about the voucher is direct evidence of source-of-income discrimination, regardless of the script.
Disparate impact: a facially neutral rule that disproportionately excludes protected groups without a legitimate, nondiscriminatory justification. A rigid credit cutoff, an English-only rule, and blanket documentation demands for assistance animals all fall into this category.
Also, "equal" application of an unlawful criterion (e.g., charging everyone with a service animal a pet deposit) is still unlawful. The correct approach is neutral, justified criteria plus reasonable accommodations and documented exceptions.
3. What should Nadia do about the caller who was told the unit was taken, and what should happen to the screening script and to Theo's role?
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The caller: Nadia should personally contact her, determine whether the unit is in fact available, and if so offer it through the normal process. She should document the interaction, preserve the record (including any notes or call logs), and treat the "already taken" statement as a fair-housing complaint trigger. She should not coach Theo to change his story. She should review her brokerage's complaint procedure and consult counsel; a discriminatory statement by an agent or employee can bind the brokerage.
Script: revise to remove familial-status, disability, source-of-income, and language inquiries; replace with lawful occupancy, neutral income verification, and an assistance-animal accommodation process. Adopt written rental criteria with a documented reasonable-accommodation procedure.
Theo: he is unlicensed and may perform clerical screening logistics, but he should not be making eligibility judgments or delivering availability statements that function as denials. Nadia, as the licensed broker, must own the screening criteria and train staff. She should also document the training and retain the revised policy.