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Discrimination Against Children: Pitfalls and Traps By – Dale Alberstone, Esq.

Posted on 01. May, 2019 by in all

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Hello everybody.  AOA members know the general rule:  It is unlawful for a landlord to discriminate against children, or to discriminate against tenants on account of them having minors.  The California Supreme Court first imposed the prohibition of discriminating against families with children in 1982, relying on the California Unruh Civil Rights Act, in the seminal case of Marina Point v. Wolfson.

While landlords understand that such age discrimination is illegal, avoiding it in one’s everyday ownership or management of an apartment building may not be easy.  Often the preprinted provisions in the lease form or the house rules and regulations themselves inadvertently violate the law.

A POP QUIZ!

Here is a pop quiz.  Circle “True” or “False. Which of the following provisions, if any, would likely constitute unlawful discrimination if included in the landlord’s rental agreement or the house rules:

  1. “Children using the common areas are to be under adult supervision at all times.”  True or False?
  2. “Skateboard riding, jumping rope, running, playing and screaming are prohibited in the common areas of the property.”  True or False?
  3. “Persons under 18 shall not use the swimming pool without an adult in attendance.”  True or False?
  4. “Children 12 and under shall not use the swimming pool without adult supervision.”  True or False?
  5. “Minors are prohibited from using the exercise equipment in the recreation room without adult supervision.”  True or False?
  6. “Persons under 18 may not loiter in the common areas of the building after 10 p.m.”  True or False?
  7. “No one may play with dolls in the common areas of the apartment complex.”  True or False?

What do you think?  Would any of those provisions be illegal discrimination?  If so, why? The answers to the Pop Quiz follow later in this article.

The Two Major Types of  Discrimination Against Children

There are two major types of discrimination against children, namely:  (1) Acts by a landlord where he/she intends to treat children differently than adults, and (2) Acts by a landlord which in fact have an adverse disparate impact on minors even if the landlord did not intend to treat children differently.  

A lease which provides that children in the common areas are at all times to be supervised by an adult would constitute intentional discrimination.  That is because the landlord intends that children are to be treated differently than adults when they are present at the complex.  

Discrimination based on disparate impact means that even if the landlord’s practices were intended to be neutral and not designed to discriminate, they nevertheless have a disproportionate effect on children.  For example, a lease which provides that no person is allowed to play with plastic LEGO blocks in the outdoor common areas of the property would be disparate treatment of children because adults rarely play outside with LEGOS.

Further Examples of Illegal Discrimination

Here are some less obvious examples of potential age discrimination against children:  

A house rule which provides that skateboarding and skipping rope are prohibited on the common areas would likely result in disparate treatment.  If a case based on that rule were brought to court and the testimony by the tenant’s expert witness demonstrated that children are much more likely than adults to skateboard and skip rope on the common areas than adults, then the provision would likely be unlawful.  In other words, even though the landlord may not have intentionally instituted the rule to be directed at children, the impact of the rule primarily affects kids.

Another example would be a house rule that prevents anyone from playing, running or screaming through the hallways of the building.  Almost always it would be minors, rather than adults, who run, play and yell in hallways. A better way to phrase the rule would be to prohibit all conduct in the hallways that unreasonably disturbs the quiet enjoyment of other tenants.  

With respect to swimming pools, there is a surprising trap for the unwary.  Title 24 of the California Code of Regulations, Section 3120B.4, provides that where no lifeguard service is provided, a warning sign must be posted which says:  “Warning – No Lifeguard On Duty” and that “Children Under The Age Of 14 Should Not Use Pool Without An Adult In Attendance.”

A landlord reading that regulation might conclude, albeit erroneously, that he can lawfully promulgate and enforce a rule that children 13 years or younger are barred from using the swimming pool without adult supervision.  After all, if the State of California thinks that 13 year olds and younger should not swim or play in a pool without adult supervision, surely landlord could institute and enforce such a rule.

Not true.  The law does not allow a landlord to impose a pool rule of adult supervision of children of any age.  That is up to the parents to decide, so say our courts. For example, a mature 16 year old with lifeguard training would likely be a better choice for supervision than an 85 year old adult, but the teenager would not qualify under the landlord’s “adult supervision required” rule.

Also, our courts point out that there are numerous children younger than 14 who can swim far better than many adults and those minors are less likely to drown.

A good alternative way to phrase the swimming pool rule is:  “All persons must have adequate swimming ability to use the pool or be accompanied by a person with adequate swimming ability.”

Defense to Claims of Child Discrimination

The principal defense to a lawsuit against child age discrimination is that (1) there is a compelling business necessity for the rule, and (2) the rule implemented is the least restrictive means of achieving it.  

Thus, a swimming pool rule which prohibits non-toilet trained children from using the pool or babies in diapers from wading or swimming in it, may be enforceable.  That is because body excrements, and feces and urine in particular, jeopardize the health of everyone else who uses (and sometimes accidentally swallows) the water.  The landlord’s compelling business interest is to protect the health of other tenants and the imposition of the rule, it seems, is the least restrictive means available.

However, even that rule is not without controversy.  In one case, an administrative law judge held that the condominium homeowners association could have implemented a less restrictive rule against children, such as:  “Any person who is incontinent or not fully potty-trained must wear appropriate waterproof clothing when entering or being carried into the pool.” There, the judge imposed a $1,500 penalty on the HOA for unlawful discrimination against children.

By the way, had I defended the homeowners association in that case (which I did not), I would have retained an expert witness to testify that even so-called waterproof clothing is not “foolproof” clothing and bodily excrements in the water are hazardous to health.  In other words, even though the diaper generally functions appropriately on a non potty-trained person (i.e., a baby or very young child), it may from time to time leak, have a defect, or otherwise be improperly worn.  Thus, I would have argued that the enjoyment of using the pool to a non potty-trained toddler wearing a customarily reliable waterproof panty is substantially outweighed by the possibility that it may fail and thereby create a health risk to many others who swim in the water.

Whatever the prohibition, if it primarily affects children, the burden will be on the landlord to establish that the regulation he imposes is neither overly broad nor unduly restrictive.  In other words, the landlord must prove that he has a compelling business purpose for the rule and that rule is the least restrictive means to achieve the intended outcome.

Answers to the Pop Quiz

Now that you have seen the rules and defenses that determine whether there exists unlawful discrimination against children, here are the answers to the preceding Pop Quiz:  All of the answers are “True.”  All of them likely constitute unlawful discrimination under both federal law and California law.

Money Damages for Discrimination

Substantial money damages are awardable to both adults and children for injury they suffer from unlawful child discrimination.  Such “injury” includes humiliation, embarrassment, emotional distress, inconvenience and loss of enjoyment of life.

Judges and juries in both the California state and federal Court systems are empowered to award substantial monetary damages against landlords who discriminate against families with children even if the discrimination was merely negligent and inadvertent.  For that reason, it is not uncommon that adult tenants in an apartment building, (through their lawyers) demand, say, $15,000 apiece against a landlord and their children demand $7,500 each. (Adults may sustain more emotional distress seeing their children being discriminated against than the children themselves suffer.)

Adding salt to the landlord’s wound, the tenants’ attorney will be entitled to an award of his reasonable attorney’s fees to litigate the case, which compensation may well exceed $200,000.

Problems with Insurance Coverage

In discrimination cases, insurance carriers often try to deny liability (meaning that the landlord will have to pay all damages himself), on the basis that the discrimination was intentional.  An insurance company issuing a general liability policy to an owner or management company is not required to pay damages based on any act of intentional wrongdoing, such as intentional discrimination.

The procedure that carriers initiate to eschew liability coverage is to mail out a “Cumis counsel” letter to the insured owner or company.  A “Cumis” letter is correspondence that advises the recipient that he has a right to hire independent counsel (with a portion of the fees paid by the insurance company) due to the inherent conflict of interest between the carrier’s appointed lawyer and the insured.  

The conflict is that if the lawyer appointed by the insurance company to defend the insured does not properly present the defense, the landlord’s discrimination may be found to be intentional, rather than merely negligent.  A Court or jury finding of intentional discrimination will absolve the carrier from having to pay any monetary damages, whereas a finding of innocent discrimination may compel the insurance company to pay the judgment.

After receiving the Cumis letter, if the landlord then hires his own private attorney (typically a wise thing for the insured to do) to co-defend him along with the insurance company lawyer, private counsel will focus on and be more circumspect to ensure that any finding of discrimination is mere negligence, and therefore covered under the insured’s policy.  

Recommendations

Often, there is no clear black and white demarcation of exactly what rules constitute unlawful child discrimination and what rules do not.  Not only are landlords frequently confused, often so are their lawyers, particularly with the “disparate impact” type of discrimination.

To best avoid discrimination against children, here is what I recommend to AOA members:

  • Carefully review your leases, house rules and regulations.  If there is any mention of children, remove the reference or at least obtain approval of the provision from qualified counsel.
  • If there is any prohibition against playing, loitering, lounging, running, bike riding, skateboarding, scooter riding, roller skating, skipping rope, yelling, screaming, talking loudly or other generic activities in the common areas which might occur more frequently with children than with adults (i.e., adverse disparate impact against children), either remove the verbiage or obtain approval (or rejection thereof) by counsel.
  • Have an experienced attorney practicing in that field of law review your entire lease, house rules and regulations to ensure that they do not contain any type of child discrimination, whether intentional or inadvertent.

Dale Alberstone is a prominent real estate attorney who has specialized in real property and resident manager law for 40+ years.  He has been appointed to periodically serve as a judge pro tem of the Los Angeles Superior Court and is a former arbitrator for the American Arbitration Association.  He also testifies as an expert witness for and against other attorneys who have been accused of legal malpractice.

Mr. Alberstone has been awarded an AV rating from Martindale-Hubbell.  An AV rating reflects an attorney who has reached the heights of professional excellence and is recognized for the highest levels of skill and integrity.

The foregoing article was authored in April 2019.  It is intended as a general overview of California law only and may not apply to the reader’s particular case.  Readers are cautioned to consult an advisor of their own selection with respect to any particular situation.

Address correspondence to Dale S. Alberstone, Esq., ALBERSTONE & ALBERSTONE, 269 S. Beverly Drive, Suite 1670, Beverly Hills, California 90212.  Telephone: (310) 277-7300.

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