Who's Discriminating against Whom?

Daily Herald (Arlington Heights, IL), March 4, 2011 | Go to article overview

Who's Discriminating against Whom?


In dealing with condominium and homeowners for more than three decades, I have seen many examples of people who are unwilling to acknowledge that something is their fault and want to blame the board. Rule violators suing the board for having their car towed, delinquents attacking the board because they were turned over for collection; speeders, early garbage placers, negligent dog walkers, and the list goes on and on.

One of the first lines of defense for the excuse maker is discrimination. "I am being discriminated against because I am an alien...I come from Pluto." American history shows us that numerous minorities were discriminated against for centuries. However, modern laws have at least made this conduct illegal.It may not change people's minds or prejudices, but at least they are not legal.

A board of directors, working closely with its rules enforcement committee, its manager and its lawyer, needs to carve out clear-cut legal standards in terms of both writing rules as well as enforcing them. Then, be prepared for the occasional cry of "fascism" or discrimination and you will at least be able to distinguish that from a whiny owner who does not want to be told what to do.

Race: This type of discrimination is easily definable and not defensible. However, that does not mean that a board must accede to every accusation of racism, when it can clearly show it has acted fairly, in a non-arbitrary or unconscionable fashion that could induce the average person to say, "Yes, that is or is not, racial discrimination." These types of accusations most often occur in rule enforcement and collection when the defendant declares that they are being treated unfairly. This can result in a civil rights claim with a federal, state or local agency and many "directors and officers" liability insurance policies deny claims for civil rights claims.

What can a board do to protect itself? Obviously, have all policies and procedures reviewed by legal counsel to make sure they are nondiscriminatory, and uniformly enforced.

Second, a board can offer to sit down and try to mediate the claim. Sometimes people make accusations, but they are not saying what they really want. A sit-down, if both sides are willing, can get the real issues on the table.

Selective enforcement of rules, or trying to enforce policies that were never adopted by the board in a proper fashion offer the most exposure. There are never guarantees that a resident might not try to pursue a claim, but a board must make sure it has an ironclad defense of all directors' conduct and documentation to show that all rule enforcement is neither arbitrary nor capricious.

Sex: The Amendment to the United States Constitution guaranteed women the right to vote. Discrimination against women seems to be more of a problem in public life and in the workplace. …

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