The Dreaded D-Word

It’s the one thing that can give every co-op and condo board member night sweats: the prospect of getting dragged before the city’s Commission on Human Rights for discriminating against a member of a so-called protected class. Such complaints usually spring from a potential buyer’s rejected application, and there are preventive steps boards can take to short-circuit them.

Attorney Steve Wagner, a partner at Wagner Berkow and a longtime co-op board member, likens discrimination complaints to a ping-pong match, or a dance. “The level of proof to start the case is very low,” Wagner tells Brick Underground. “All you have to do is say, 'I'm a member of a protected class and they turned me down.' Then the burden shifts to the co-op to show that they turned you down based on a non-discriminatory reason, such as inadequate finances.”

After the board responds, it's then up to the person charging discrimination to prove that the co-op or condo's given reason is a pretext, or an excuse, and that the board did indeed discriminate. The burden of proof has now been lifted from the board. And it’s not a light burden.

"There has to be some evidence,” Wagner says. “Something more than just 'I had a bad feeling.’” Which is very good news for co-op and condo boards.