Who's Protected Against Familial Status Discrimination?

Understand federal discrimination laws when it comes to renting to tenants with children.

Many landlords aren’t familiar with their responsibilities when it comes to renting to families with children or don’t even know that families with children enjoy a protected status under federal housing discrimination laws.

The Fair Housing Act (FHA) (42 U.S. Code § § 3601-3619 and 3631), protects tenants against discrimination based on seven protected classes, including “familial status.” This means that if you refuse to rent to tenants simply because they have kids or you treat tenants differently because they have children, you may be violating federal law.

Here’s a rundown on exactly whom the FHA's familial status discrimination ban protects and how it applies to your property.

What Types of Families With Children Does the FHA Protect?

The FHA’s familial status protection is broad. Here’s what you need to know to determine if the ban on familial status discrimination applies to your tenants:

  1. The FHA protects families with children even if the children aren’t living with their biological parents. Children may live with a biological parent, stepparent, foster parent, grandparent, or any other adult who has legal custody of them. In addition, if a child is living with someone whom a parent or legal custodian has designated in writing, then such a household is also protected against familial status discrimination.
  2. The marital status of adult tenants is irrelevant. As far as familial status protection is concerned under the FHA, it makes no difference if the adult members of the family are married, divorced, single, widowed, or separated. So, for example, a single father with one child is protected just as much as a married couple with three children.
  3. Children must be under 18 years old. The FHA doesn’t simply protect people who happen to be living with their children. For familial status protection to apply, the law requires that there be at least one person in a household under 18 years old. So, for example, a couple who’s looking to rent an apartment with their 18-year-old son isn’t protected (even if the son is still a high school student). Similarly, a couple who starts renting an apartment with a child when he’s 17 years old will lose familial status protection on the child's 18th birthday.
  4. Children don’t have to be part of a household yet. Tenants are also protected against familial status discrimination if they’re expecting a child to become part of their household. So, landlords can’t discriminate against tenants because they’re pregnant or in the process of adopting a child.

Are Families With Children Always Protected?

There are two scenarios in which the FHA allows landlords to either turn away applicants because they have children or at least treat families with children differently:

  1. Senior housing exemptions. The FHA carves out exemptions to the ban against familial status discrimination to enable landlords to rent their apartments to seniors. This is because in order to restrict occupancy of some or all of your apartments to people above a certain age, you must be able to turn away families with children without worrying about violating the law. If you wish to be exempt from the FHA’s familial status requirement, you must take care to follow an exemption correctly. Check out the Nolo article, Senior Housing Basics, for more information on how to proceed.
  2. Health and safety concerns. Although the FHA bars discrimination based on familial status, you may single out children in your lease or house rules if the goal is to protect children’s health and safety. For example, while a rule barring children from your property’s swimming pool would almost certainly violate the FHA, a rule requiring adult supervision of children below a certain age when using the pool would likely pose no fair housing problem.

Learn More About Housing Discrimination

The Rental Applications and Tenant Screening section of Nolo.com includes several useful articles on how to legally choose tenants and avoid fair housing complaints and lawsuits. Also, check out Every Landlord’s Legal Guide, by Marcia Stewart, Ralph Warner and Janet Portman (Nolo) for detailed advice on housing discrimination and how to avoid fair housing lawsuits.

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