By Douglas K. Marsico, Esq.

An unmarried couple approaches a property manager about the rental of an apartment. The property manager has previously been instructed by the landlord to only rent to a married couple. The unmarried couple meets all other qualifications set by the landlord to rent the property based upon income and credit history. Can the landlord legally discriminate against the perspective tenants because they are not married? As is so often the answer "it depends."

Federal Fair Housing Laws prohibit housing discrimination on the basis of race, color, national origin, religion, sex, handicap, or familial status. Marital status is not identified as a protected class. Further, marital status is not included within the federal definition of familial status. Familial status is defined as having one or more individuals under 18 years of age who reside with a parent or with another person with care and legal custody of that individual or with a designee of that parent or other person with legal custody.

While there are some states (Florida, Michigan, Mississippi, Virginia and West Virginia) that include marital status as a protected class in its housing discrimination laws, marital status is not enumerated as a protected class under Pennsylvania's Human Relations Act. Again, protection against discrimination for the unmarried couple cannot be found under the term "familial status." Pennsylvania defines familial status as dealing with families with children under the age of 18.

Having eliminated federal law and Pennsylvania law, it would seem that the answer is clear. Landlords in Pennsylvania can discriminate based upon marital status. Not so fast. As I mentioned earlier, it depends. In Pennsylvania, the answer may depend upon where in the Commonwealth that the alleged discrimination against the unmarried couple occurred.

Local municipalities can provide greater protection under its antidiscrimination ordinances than that provided by federal and state law. Many local municipalities in Pennsylvania have adopted fair housing/anti-discrimination ordinances. In some cases, marital status is specified as a protected class. For example, Philadelphia's "Fair Practices Ordinance" provides protection against discrimination based upon marital status. Also, keep in mind that many local ordinances prohibit against discrimination based upon sexual orientation. The unmarried couple may fall in this category.

Property managers should educate themselves on the local fair housing ordinances of the municipalities where they practice. In some areas of the Commonwealth, marital status may be a protected class. In those areas, a landlord's instruction to rent to only married couple contravenes the law.

Mr. Marsico is an attorney with Caldwell & Kearns which serves as general counsel to PAR. A portion of his practice is dedicated to providing advice and counsel to real estate licensees and representing and defending real estate salespersons and brokers in civil lawsuits and licensing claims across the Commonwealth. He routinely counsels employers on employee relations issues as one of the voices of the PAR Legal Hotline.