By Melissa Bauman Ward, Esq., CCAL
(Second in a two-part series)
In Part 1 of this article, we examined different kinds of bias and considered ways that we could recognize implicit and explicit bias in our communities generally and in the way we interact with each other. In Part 2, we consider specific areas of our written documents and governance procedures where bias may be found and look at ways to eliminate or avoid negative bias in these contexts.
Unfortunately, there are still many documents in use which contain explicitly racist restrictive covenants. These outdated, offensive restrictions often take the form of identifying racial groups that are prohibited from owning property, or even residing in a community. Obviously, such overt racism is a violation of federal and state law. Despite some progress being made around fair housing laws and practice, the issue of what to do with these odious documents remains.1 Encouragingly, in California discriminatory covenants are unenforceable as a matter of law, and streamlined processes have been enacted by the legislature to amend documents to eliminate them.
Government Code section 12955 has long prohibited Illegal discriminatory language in governing documents—including race, color, religion, sex, gender, etc. A more recent amendment to the Davis-Stirling Act (Civil Code section 4225(b)) creates an affirmative duty on the part of boards to remove offensive discriminatory language from an association’s governing documents. Such amendment can be made without member approval as long as the document (usually the CC&Rs) is restated without making any other substantive changes. Associations with unlawful language remaining in their documents should consult with counsel promptly and restate and re-record the CC&Rs in order to prevent further harm to their communities.
It is easy to fall into the trap of using forms for frequently used complex documents such as CC&Rs without periodically looking at the actual language used in the documents. It is important that we update our documents not only to reflect the current status of the law, but to reflect modern community values of nondiscrimination and elimination of bias as well.
One example of an unintentional use of a racist term is "grandfathering."2 In the HOA world, we have used this term to describe a restriction which is not applied to those who took title to property before a certain date; for example, a rental restriction. However, the origins of the term are troubling. This term was used to describe some Southern states’ Jim Crow-era laws, which required voters to pass literacy tests or meet other voter qualifications, but which exempted men who were the descendants of men who were eligible to vote before 1867. Obviously, all such exempted men were white and the practice was a transparent attempt to disenfranchise Black voters. To eliminate this racist term from documents, we recommend finding other ways to describe the fact that the newly adopted restriction may not apply to all owners. One alternative is the term "legacy status."
Another example of biased language is gender biased language that arises out of the use of male pronouns universally, or the awkward "he or she," or the even more awkward but more accurate "he, she, or it." It is time to stop being binary in our use of pronouns, which is not only hurtful to those who don’t identify as a "he" or a "she," but is grossly inaccurate in a legal context where most of the entities described are not actually people, but corporate entities. Fortunately, the fix is simple and widely accepted: use "they" as a singular pronoun in governing documents.3 This elegant solution is not only simple, respectful, and accurate, it is historically consistent. The Oxford English Dictionary points out that the singular use of "they" dates back to 1375.4 It is beyond time to stop adhering to false grammar directives and use "they" as a consistent practice. They are here to stay.
It is important that HOAs take a close look at their policies and operating rules to make sure they are not unintentionally exclusionary. The manner in which policies are enforced can transform a facially neutral policy into one that has a discriminatory impact. Some examples of disparate impact discrimination include:
Again, policies should be drafted to address conduct, not status, and should be enforced so that violating conduct is regulated equally, not just against certain groups of people.
Finally, policies or practices that systematically exclude some members of the community or make some members feel they do not belong harm everyone in the community. When people feel unrepresented, they are less likely to participate in community governance such as board or committee service and may be less likely to follow the rules of the community. If people don’t know each other, or are distrustful of their neighbors, there is less sense of connection. Loss of connection can lead to everything from inability to attain a quorum for much-needed elections to decreased security and safety for all.
Negative bias hurts everyone. Bias—especially implicit bias—cannot be eliminated and we ignore it at our own peril, and that of the HOA communities we live in and serve. Unchecked bias can result in harm to the community and individuals who live and work there in the form of perpetuation of harmful stereotypes, emotional harm to community members, and destruction of community connection. Each of us can make our communities stronger by actively working to eliminate harmful bias from our governing documents, our enforcement practices and procedures, and our everyday interactions with fellow community members. Together we can make our communities welcoming and positive for all who live there.
Part 1 of this series on bias included sections which were co-authored by attorneys Valerie Oman, Esq. and Jennifer Martin, Esq. in addition to Melissa Ward, Esq. The omission of attribution to these two attorneys was an error on the part of Melissa Ward for which she apologizes.
Melissa Bauman Ward, Esq., CCAL is a partner at the Adams Stirling PLC law firm. She was recently made a Fellow of the College of Community Association Lawyers (CCAL).