While it’s true that a co-op board can turn down a buyer for everything from red hair to red-state political views or a desire to gut-renovate, there are also a host of reasons for which it’s illegal to reject a buyer.
These include marital status, race, color, religion, national origin, alienage, citizenship, gender, sexual orientation, military status, disability, and choice of lawful occupation, says real estate attorney Robert Braverman of Braverman & Associates.
If a board asks questions relating to one or more of these areas during the interview and then rejects the buyer for any reason, both the would-be buyer and seller may have grounds to sue for discrimination, says Braverman.
“Although many boards are nominally familiar with the legally protected categories listed above, ‘tainted’ questions frequently come up inadvertently in the normal give and take of conversation,” he explains. He points to a case where a co-op board was found liable for housing discrimination after rejecting a disabled would-be buyer: During the interview, the board read the house rules aloud to the prospective buyer and asked whether he needed any disability accommodation or exception.
Braverman illustrates the problem with some real-life examples from his work representing co-op boards:
- “Do you plan to have kids?” or “Do you plan to have more kids?” This violates anti-discrimination laws that make it illegal to deny housing on grounds of family or marital status. If an applicant is asked such questions during an interview and then rejected (no matter what the board’s reasons), discriminatory motives can be legally inferred.
- “Where are you from originally?” This could give rise to a discrimination claim based on national origin, alienage, or citizenship. Similarly, boards shouldn’t ask a turban-wearing candidate what mosque he belongs to, or a inquire whether a buyer wearing a yarmulke will need the building to run a Sabbath elevator.
- To a single buyer: “Do you plan on having many guests? Will they be staying over? Will you be giving a key to anyone?” These types of questions could be seen as prying into a buyer’s marital status.
- “Why are you using the cane?” or “Will you be requiring any extra assistance from the building staff?” Any references to an applicant’s disability could give rise to discrimination claims based on the disability.
- “Do you cook with a lot of curry?” Cooking odors may be a hot button issue in your building, but if the candidate is of obvious foreign descent, this could be seen as evidence of discrimination based on national origin. Again, as with disability discrimination claims, discriminatory motives can be inferred from interview questions that carry any hint or presumption about an applicant’s race, nationality, ethnicity, gender and—in New York—sexual orientation.
“To avoid the possibility of an inappropriate question at an interview, co-op boards should be briefed in advance about the perils of such questions,” says Braverman.
Robert Braverman, Esq., is the managing partner of Braverman & Associates, specializing in the representation of New York City co-op and condominium boards. Read more of his legal advice in The Board Room.