Question: During her interview with the co-op board, a potential purchaser was asked if she has children. Is such a question illegal?
Answer: It's not illegal, but it is ill-advised, according to experts convened by Brick Underground. But before dealing with this specific question, let's start with some basic ground rules.
"In order to avoid baseless discrimination claims, a board should only agree to interview a prospective purchaser or tenant after a complete application has been submitted, and the board has determined that the applicant meets all of the applicable financial tests," says Jeffrey Reich, a partner at the law firm Schwartz Sladkus Reich Greenberg Atlas.
The board should avoid asking questions that could be perceived as running afoul of city, state and federal anti-discrimination laws, he adds. This would include questions about a prospective shareholder's age, citizenship, nationality, religion, race, gender, and marital status; it also includes whether or not they have children. You can see a list of all the classes protected under the city's Human Rights Law.
"The question about whether the writer has any children is one that I would counsel my board clients against asking," Reich says. "It is not that the question is illegal. It's just that should the applicant be rejected, the fact that the question was asked could form the basis of a discrimination claim."
Similarly, questions about whether an applicant plans to host overnight guests in the apartment could be perceived as digging for information on marital status, and it could also be basis for discrimination claims should the applicant be rejected.
So what can a board ask without fear of getting sued? Fair game for discussion at a co-op board interview includes matters such who will live in the apartment (but not direct questions about children) and whether the applicant has pets, Reich says. The board may also ask for clarification or explanation of any potential issues raised in the application; they might also provide information about the building and the neighborhood, and ask why an applicant wants to live there.
The bottom line: Even a perception of discrimination against a member of a protected class is something co-op boards should assiduously avoid.
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