13.5.1 Familial Status Discrimination

Examples of familial status discrimination include policies that unreasonably restrict the number of people per bedroom,1  segregating families with children within a complex,2  prohibiting children from playing in common areas,3  refusing to rent out of concern that the property would pose danger to children,4  and making statements that indicate a preference or discrimination based on familial status.5

There are two major situations in which conduct that would otherwise discriminate on the basis of familial status will not violate the FHA. First, housing for “older persons” is exempted from the FHA prohibitions against familial status discrimination.6  Second, 42 U.S.C. § 3607(b)(1) allows providers to comply with “reasonable” local, state, or federal occupancy standards. HUD has declined to define “reasonable.” A “totality of circumstances” analysis is generally applied to an occupancy standard. For instance, an apartment complex’s one-person/one-bedroom, two-person/two-bedroom restrictions have been held to violate the FHA.7  HUD’s rule of thumb is that occupancy limits of two persons per bedroom are presumptively reasonable, but HUD has also provided guidance on factors that may warrant deviation from the two person per bedroom standard.8

• 1Glover v. Crestwood Lake Section 1 Holding Corp., 746 F. Supp. 301 (S.D.N.Y. 1990); Fair Hous. Council v. Ayres, No. SACV 93-149, 1994 WL 278535 (C.D. Cal. June 16, 1994); Hillcroft Partners v. Comm’n on Hum. Rts., 533 A.2d 852 (Conn. 1987).
• 224 C.F.R. 100.70(c)(4).
• 324 C.F.R. 100.65(b)(4).
• 4United States v. Grishman, 818 F. Supp. 21 (D. Me. 1993).
• 5White v. HUD, 475 F.3d 898 (7th Cir. 2007).
• 642 U.S.C. § 3607(b)(1)–(3). Detailed HUD regulations on this exemption are found at 24 C.F.R. § 100.300.
• 7United States v. Badgett, 976 F.2d 1176 (8th Cir. 1992).
• 863 Fed. Reg. 70,256 (Dec. 18, 1998).