Clear rules will help homeowners board in claims of discrimination
In "A Nation Of Victims," 1993, Charles J. Sykes, theorizes that we have become a culture of whiners who refuse to accept responsibility for anything and are always looking for a scapegoat. This may be an overgeneralization; however, there are many instances when you have to give credence to what the author was saying.
In dealing with condominium and homeowners for more than three decades, I have seen many examples of people who are unwilling to acknowledge that something is their fault and want to blame the board. Rule violators suing the board for having their car towed, delinquents attacking the board because they were turned over for collection; speeders, early garbage placers, negligent dog walkers, and the list goes on and on.
One of the first lines of defense for the excuse maker is discrimination. "I am being discriminated against because I am an alien ... I come from Pluto." American history shows us that numerous minorities were discriminated against for centuries. However, modern laws have at least made this conduct illegal. It may not change people's minds or prejudices, but at least they are not legal.
A board of directors, working closely with its rules enforcement committee, its manager and its lawyer, needs to carve out clear-cut legal standards in terms of both writing rules as well as enforcing them. Then, be prepared for the occasional cry of "fascism" or discrimination and you will at least be able to distinguish that from a whiny owner who does not want to be told what to do.
Race: This type of discrimination is easily definable and not defensible. However, that does not mean that a board must accede to every accusation of racism, when it can clearly show it has acted fairly, in a non-arbitrary or unconscionable fashion that could induce the average person to say, "Yes, that is or is not, racial discrimination." These types of accusations most often occur in rule enforcement and collection when the defendant declares that they are being treated unfairly. This can result in a civil rights claim with a federal, state or local agency and many "directors and officers" liability insurance policies deny claims for civil rights claims.
What can a board do to protect itself? Obviously, have all policies and procedures reviewed by legal counsel to make sure they are nondiscriminatory, and uniformly enforced.
Second, a board can offer to sit down and try to mediate the claim. Sometimes people make accusations, but they are not saying what they really want. A sit-down, if both sides are willing, can get the real issues on the table.
Selective enforcement of rules, or trying to enforce policies that were never adopted by the board in a proper fashion offer the most exposure. There are never guarantees that a resident might not try to pursue a claim, but a board must make sure it has an ironclad defense of all directors' conduct and documentation to show that all rule enforcement is neither arbitrary nor capricious.
Sex: The Amendment to the United States Constitution guaranteed women the right to vote. Discrimination against women seems to be more of a problem in public life and in the workplace. However, with lifestyle changes coming to the forefront in a more outspoken society, same-sex relationships may be subject to discriminatory conduct by an association. Unfortunately, there is no federal standard, but blatant discriminatory conduct could be subject to strenuous court scrutiny, especially if there is a state or local policy being violated.
Handicapped and disabled status: This seems to be pretty obvious but the standards are not so simple. I have seen associations try to stop the installation of a ramp for a wheelchair -- more than once. Aside from the obvious, however, is alcoholism a disability? Is Tourette syndrome a handicap? How about stress? It is in this particular area where associations and their owners have the largest amount of conflict. If an owner claims a disability and gets a dog in a no-pet building, is he or she exempt? What is the handicap alleged and who decides whether the claim is legitimate? What standard of proof is needed? Clear-cut rules must be in place, reviewed by legal counsel, in keeping with the latest legal standards as expounded on in the most recent cases and governmental regulations. Documentation can be required although the biggest source of disputes these days is stress and dogs.
Family status: The Fair Housing Amendments to the Civil Rights Act guarantees all residents to right of occupancy regardless of family status. In some cultures, however, having three or even four generations under one roof is the norm. Can an association hold a family to "American" standards, taking into consideration parking, water, sewerage, garbage, noise etc.? In these instances using local codes limiting the number of occupants can be a helpful guide.
Ethnicity: This is probably the most commonly alleged charge of discrimination, yet there is no statute or cases protecting minority rights which are not part of a "suspect class." When a person who is a naturalized citizen or legal immigrant does not like a rule that is being enforced against them, as long as the rule is fair and uniformly applied, they cannot make a credible case for ethnic discrimination, particularly if that person is not a member of a suspect class.
We have an extraordinarily multicultural society. Take a look around a meeting these days and see how many countries and cultures are represented. Yet, that does not create a license to claim a violation of someone's rights when they do not like a rule. Associations must be judicious in drafting and uniform enforcement to avoid liability for unwarranted claims.
• Jordan Shifrin is an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. Send questions for the column to him at firstname.lastname@example.org. This column is not a substitute for consultation with legal counsel. Past columns can be read at www.ksnlaw.com.