You CAN select tenants according to their rental history, ability to pay rent, their suitability as a tenant, references, and your gut feeling about them.
WHAT’S NOT ALLOWED
You CANNOT select (or reject) tenants according to race, color, national origin, religion, sex, handicap, or familial status. “Familial status” is in there to protect the rights of pregnant women, or of parents or legal custodians of children under the age of 18.
AN OWNER-OCCUPIED LOOPHOLE
There are exemptions to the Fair Housing Act for owner-occupied buildings with no more than four units, which means that I am not obligated to rent to families with children. However, it is still illegal for me to advertise my apartment as such (i.e. “Great Rental Unit for Single People, Couples with no Children” or “Duplex for Rent – No Kids, Please.”)
The FindLaw website lists a case in which the owner/occupants of a duplex refused to rent to a single mother and her 12-year old son, because they had a pool on the property, which they felt would be a safety hazard for children. The woman took them to court, and won! According to this website, while it IS LEGAL for owner-occupants to not rent to families with children, they CANNOT tell the family that that is the reason they are not renting to them.
A recent decision by an administrative law judge illustrates the breadth of coverage under the Act. Gayle, a single mother of a 12-year-old son who lived with her, responded to an advertisement for renting an apartment that was one of two units in a duplex. The owners occupied the other unit. While describing the apartment to Gayle over the phone, one of the owners stated, “This apartment has a pool, so we don’t want children or pets.” Gayle responded that, given her son’s age, the pool was not dangerous. The owners stood their ground.
Since the owners occupied one-half of the duplex, they were free to discriminate with impunity in renting the apartment. They remained subject, however, to the Act’s prohibition on making a statement with respect to rental of a dwelling that indicated any preference, limitation, or discrimination based on familial status.
According to the judge, the violated section of the Act gives persons seeking housing the right to inquire about its availability without having to endure the insult of discriminatory statements. In her view, the owners’ comment rejecting anyone with children because of the pool was such a statement. The statement expressed a blanket ban on renting to a family with a child or children, even if it stemmed from a concern for the safety of children. The judge stated that the decision on whether a dwelling poses unacceptable risks to a child is for the prospective tenant/parent to make. Gayle and her son were awarded damages for emotional distress, and a civil penalty was assessed against the apartment owners.
View the whole article here: http://library.findlaw.com/1999/Oct/1/129452.html