What the Six Billion Dollar Man can teach us about housing discrimination

Colin McCarthy
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Published on February 11, 2015

Property owners dream about perfect tenants. When filling vacancies, they somewhat control, through listings and the leases, who they rent to by banning ownership of pets and things like water beds, or by prohibiting behaviors like loud noises after 10 p.m. and keeping a filthy apartment.  When landlords start categorizing potential tenants by who they are, though, that’s when trouble begins.

Most property managers and owners know the basic dos and don’ts when it comes to housing discrimination and equal opportunity housing. It means advertising listings and choosing tenants without preference to race, age, gender, sexual orientation, and other categories. But what the law considers housing discrimination today is not always obvious — and sometimes, it’s even surprising.

Genetic discrimination & housing

Actor Mark Wahlberg will play the Six Billion Dollar Man in an upcoming movie, based on a ‘70s sci-fi series. The plot: astronaut Steve Austin survives a horrific plane crash and gains titanic strength and other advantages after the government outfits him with three ultra-powerful, bionic limbs and an artificial, all-seeing eye. In the movie version, Austin’s body parts will get similar upgrades — as will his DNA.

Landlords probably aren’t really worried about Steve Austins renting their units, demolishing showers, doors, and hardwood floors with their superhuman strength. But, California lawmakers have decided not to leave anything to chance.

Cal Civ Code § 51 states that people are entitled to equal protection under the law with respect not only to well-known classifications, like race, religion, and disability — but also “genetic information.”

Clearly, legislators had more serious matters on their minds than the daily struggles of bionic men and women when they passed their laws. They likely were more concerned about what would happen if property owners started requiring applicants to hand over results of their genetic tests, and those of their family members.

Roots of genetic discrimination in employment & health insurance

It’s hard to imagine many property owners requesting this type of information on tenant applications, but red flags were raised several years ago when some employers and health insurance providers began demanding to see results from applicants’ genetic tests. They wanted to know if a prospective employee or policyholder was genetically predisposed to certain diseases. Armed with that information, a business could avoid hiring a potentially disabled employee, and an insurer could deny an applicant to reduce its risk.

In the area of housing discrimination law, cases have the potential to be ugly. For example, take a property owner who demands a woman share her genetic test results, which show she’s predisposed to schizophrenia like her father, and as a result, the landlord doesn’t offer her a lease.

Landlords who are caught classifying tenants this way will land in court for housing discrimination under this law, and with good reason. Keep in mind that laws are always changing, particularly at the state and local levels, so have your attorney make sure your leases are up-to-date, especially if you haven’t done so in a few years.

And while you’re at it, have your lawyer take a close look at your listings, too, to make sure they avoid discriminatory classifications. It will help you avoid the long arm of the law — and the wrath of a hurt and disappointed Six Billion Dollar Man.

Want to learn more about laws on housing discrimination involving genetic information in your state? Check out this map with links to these laws across the U.S.

This blog submission is only for purposes of disseminating information. It does not constitute legal advice. The statements in this blog submission do not necessarily reflect the opinions of Robinson & Wood, Inc. or its clients. No attorney-client relationship is formed by virtue of reading this blog entry or submitting a comment thereto. If you need legal advice, please hire a licensed attorney in your state.

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Colin McCarthy

Colin G. McCarthy is a partner in the business litigation, products liability, and insurance practice groups at Robinson & Wood in San Jose, California.

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