Dos & Don'ts for Handling Reasonable Accommodation Requests

In this month’s lesson, Fair Housing Coach focuses on reasonable accommodation requests by individuals with disabilities. Fair housing rules governing reasonable accommodation requests are often difficult to apply in the real world. The law requires communities to consider each request on a case-by-case basis, so requests for disability-related accommodations frequently lead to fair housing trouble.

Example: In May 2020, the owners and managers of a Pennsylvania community agreed to pay $80,000 to resolve a HUD complaint for discrimination. In their complaint, two residents with mobility impairments alleged that the community refused to grant their request for a reserved parking space or to allow them to move to a first-floor unit, and retaliated against them for making the requests. The owners and managers denied the allegations, but agreed to the settlement.

“For persons with disabilities, a task as basic as walking from a parking lot to their home or climbing a flight of stairs can be very difficult,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Today’s settlement sends the clear message that HUD is committed to ensuring that housing providers meet their obligations to comply with the requirements of our nation’s fair housing laws.”

In this month’s lesson, we’ll review fair housing requirements and offer nine Dos & Don’ts for handling disability-related reasonable accommodations requests. Then you can take the Coach’s Quiz to see how much you’ve learned.

WHAT DOES THE LAW SAY?

Under the Fair Housing Act (FHA), it’s unlawful to exclude or otherwise discriminate against people because they—or someone associated with them—has a disability. The FHA defines “disability” as a physical or mental impairment that substantially limits one or more major life activities. There are three key elements to the definition:

Physical or mental impairment: HUD regulations broadly define physical or mental impairment to include any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more specified body systems, including neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine. It also includes any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

The HUD regulations list examples of physical or mental impairments, which include, but are not limited to: orthopedic, visual, speech, and hearing impairments; cerebral palsy; autism; epilepsy; muscular dystrophy; multiple sclerosis; cancer; heart disease; diabetes; Human Immunodeficiency Virus (HIV) infection; mental retardation; emotional illness; drug addiction (other than addiction caused by current, illegal use of a controlled substance); and alcoholism.

Substantially limits: HUD says that substantially limits means that the limitation is “significant” or “to a large degree.”

Major life activity: According to HUD, major life activity means activities that are of central importance to daily life, including, but not limited to: seeing, hearing, walking, breathing, performing manual tasks, caring for oneself, and speaking.

Coach’s Tip: The FHA protects individuals who do not now have—or may never have had—a physical or mental impairment that substantially limits a life activity. The FHA’s definition of disability includes an individual with “a record of” impairment, which means someone with a history of—or having been misclassified as having—a mental or physical impairment that substantially limits one or more major life activities. The law also protects an individual who is “regarded as” having such an impairment, a catch-all phrase that includes an individual with—or without—an impairment when he is treated by another as having such an impairment.

Reasonable accommodations: The FHA includes special provisions to shield individuals with disabilities from housing discrimination. Among other things, these rules make it unlawful for housing providers to refuse to make reasonable accommodations to rules, policies, practices, or services when such accommodations may be necessary to afford persons with disabilities an equal opportunity to use and enjoy a dwelling and public and common use areas.

Under the FHA, a reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service. Since rules, policies, practices, and services may have a different effect on persons with disabilities than on other persons, HUD says that treating persons with disabilities exactly the same as others will sometimes deny them an equal opportunity to use and enjoy a dwelling.

Any change in the way things are customarily done that enables a person with disabilities to enjoy housing opportunities is a reasonable accommodation, according to HUD. In other words, HUD says that reasonable accommodations eliminate barriers that prevent persons with disabilities from fully participating in housing opportunities, including both private housing and in federally assisted programs or activities. Housing providers may not require persons with disabilities to pay extra fees or deposits or place any other special conditions or requirements as a condition of receiving a reasonable accommodation.

HUD offers some examples of reasonable accommodations:

  • Assigning an accessible parking space for a person with a mobility impairment;
  • Permitting a resident to transfer to a ground-floor unit;
  • Adjusting a rent payment schedule to accommodate when an individual receives income assistance;
  • Adding a grab bar to a resident’s bathroom;
  • Permitting an applicant to submit a housing application via a different means; and
  • Permitting an assistance animal in a “no pets” building for a person who is deaf, blind, has seizures, or has a mental disability.

Not all persons with disabilities will have a need to request a reasonable accommodation, according to HUD. However, all persons with disabilities have a right to request or be provided a reasonable accommodation at any time. In general, communities are responsible for paying the costs associated with a reasonable accommodation as long as it doesn’t pose an undue financial and administrative burden.

9 DOS & DON’TS

#1: DON’T Assume You Must Treat Everyone the Same—Regardless of Disability

Since fair housing law bans housing discrimination based on certain protected characteristics, it’s natural to think that you can’t be accused of a fair housing violation if you treat everyone the same. As a general rule, that approach may ward off discrimination claims based on many protected characteristics, but it will inevitably lead to a fair housing complaint if you apply it to individuals with disabilities.

By definition, the FHA’s reasonable accommodation provisions require housing providers to make exceptions to rules, policies, practices, or services when necessary to allow an individual with a disability to fully use and enjoy the community. You could receive a wide variety of reasonable accommodation requests for changes or exceptions to your general rules, such as requests for live-in aides, transfers to different units, and changing the due date for rental payments. Among the most common are requests for assistance animals and reserved parking.

Example: In June 2020, HUD charged the owners and manager of a Wisconsin community with discrimination for allegedly refusing to rent a unit to an applicant with disabilities and their partner because the applicant required an assistance animal. HUD’s charge will be heard by an administrative law judge unless either party elects to take the case to court.

“Individuals with disabilities who need assistance animals to live their lives should not have to surmount unreasonable hurdles to keep those animals in their homes,” Paul Compton, HUD’s General Counsel, said in a statement. “Discriminating against individuals with disabilities is unacceptable and illegal, and HUD will continue to vigorously enforce the Fair Housing Act to combat this type of discrimination and to obtain relief for victims.”

Example: In February 2020, the owner and management company for a HUD-subsidized community in San Diego agreed to pay $12,500 to settle allegations that they refused to allow a resident with disabilities to have a designated parking space. In her HUD complaint, a resident with physical disabilities alleged that she was forced to navigate a steep incline each time she exited her building’s parking garage after parking in one of the regular spaces. The owners and managers denied the allegations but agreed to settle her complaint.

“Reasonable accommodations make a world of difference to persons who find the most routine things, like walking from a parking lot to their home, challenging,” Anna María Farías, HUD Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Hopefully, today’s settlement will send a loud and clear message to housing providers that HUD is committed to ensuring that they meet their obligations under the nation’s fair housing laws.”

#2: DO Follow Standard Procedures for Reasonable Accommodation Requests

Although the FHA doesn’t require communities to have formal rules or procedures for handling accommodation requests, it’s a good idea to have such procedures in place because disputes concerning accommodation requests so often lead to fair housing complaints. Having formal procedures could help prevent misunderstandings as to the nature of the request, and, in the event of a later dispute, provide records that the requests received proper consideration, according to joint guidelines issued by HUD and the Justice Department on reasonable accommodations (HUD/DOJ guidelines).

Written policies and procedures also help to keep requests from falling between the cracks. The HUD/DOJ guidelines state that communities have an obligation to provide a prompt response to an accommodation request, so an unreasonable delay in responding to an accommodation request may be deemed to be a failure to provide a reasonable accommodation.

Nevertheless, you can’t refuse to consider a reasonable accommodation request just because the applicant or resident won’t follow your formal procedures. According to the HUD/DOJ guidelines, a community must consider a reasonable accommodation request even if the person making the request doesn’t use your preferred forms or procedures.

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#3: DON’T Ignore Informal Comments About Disability-Related Needs or Wants

Although an applicant or resident isn’t entitled to receive a reasonable accommodation unless he requests one, the law doesn’t require that a request be made in a particular manner or at a particular time. Under the FHA, a resident or applicant makes a reasonable accommodation request whenever he makes it clear to the housing provider that he’s requesting an exception, change, or adjustment to a rule, policy, practice, or rule because of a disability.

No “magic” words are required to make a request for a reasonable accommodation. An applicant doesn’t have to mention the FHA or use the words “reasonable accommodation,” according to the HUD/DOJ guidelines. Furthermore, the request needn’t come directly from the person with the disability; the request may be made by a family member or someone acting on his behalf.

The law doesn’t require the request to be in writing or for the person making the request to use your forms or follow your procedures. If a resident refuses to put his request in writing or use your preferred forms, fair housing experts say that your staff should fill out the forms themselves to document the request and how it was handled.

#4: DON’T Deny Request Simply Because Impairment Isn’t Apparent

Don’t make decisions about whether an applicant or resident is entitled to a reasonable accommodation simply because he doesn’t have an apparent disability or because the disability-related need for the requested accommodation isn’t obvious. The FHA’s disability provisions may apply even if an individual’s impairment isn’t obvious or apparent.

Nevertheless, not everyone who has an impairment will qualify for the FHA’s disability protections. The definition of disability requires that the impairment substantially limit one or more major life activities, which means that it has a significant impact on activities that are central to daily life, such as seeing, hearing, walking, or caring for oneself.

#5: DO Follow the Rules for Verifying Disability

A housing provider is entitled to obtain information that’s necessary to evaluate if a requested reasonable accommodation or modification may be necessary because of a disability. But be careful: HUD says that if a person’s disability is obvious, readily apparent, or otherwise known to the provider, and if the need for the requested accommodation or modification is also readily apparent or known, then the provider may not request any additional information.

If the disability or the disability-related need for the requested accommodation or modification isn’t known or obvious, then HUD says that the provider may request only information that’s necessary to evaluate the disability and/or disability-related need for the accommodation. This information may be from the individual making the request, a medical professional, a peer support group, a nonmedical service agency, or a reliable third party who’s in a position to know about the individual’s disability. In most cases, HUD says that an individual’s medical records or detailed information about the nature of a person’s disability isn’t necessary for this inquiry and may be inappropriate.

To avoid fair housing trouble, it’s essential to understand when and how you can ask for disability-related information from applicants or residents who request reasonable accommodations. If you go overboard in the requests for documentation, then you run the risk that your requests for information effectively amount to denial of the accommodation request.

Example: In July 2020, the owner of a 61-unit condo community in Manhattan agreed to settle a lawsuit alleging disability discrimination against a resident with disabilities who had a rent-controlled unit in the building. In its complaint, the Justice Department alleged that the community discriminated against the resident by refusing to permit him to live with an assistance animal to accommodate his disability, as a reasonable accommodation to the community’s no-pet policy, and by interfering with the exercise of his rights under fair housing law. Under the settlement, the community agreed to allow the resident to keep his assistance animal and to implement a reasonable accommodation policy.

According to the complaint, the resident lived in the unit for his entire life and had a long history of depression. In 2006, the resident said he adopted a dog to help alleviate his depression and requested a reasonable accommodation to the community’s “no pets” policy to allow him to reside with his dog in the apartment. Allegedly, the community not only denied the request, but also initiated eviction proceedings against him.

While those proceedings were underway, the complaint alleged that in 2015, the resident was diagnosed with a serious medical condition, and his depression worsened. Allegedly, he made another reasonable accommodation request to allow him to keep his dog based on the substantial emotional assistance the dog provided and his changed circumstances. The complaint alleged that the community effectively denied the request by requiring the onerous disclosure of detailed medical records and other information, despite the resident’s already well-substantiated request and the community’s familiarity with his condition. 

The complaint alleged that while the litigation was pending, the dog died, so the resident again requested a reasonable accommodation to permit him to adopt another dog for emotional support. Allegedly, the community effectively denied the request by requiring extensive documentation despite receiving documents, expert opinions, medical records, and sworn testimony in support of his request.

“This is yet another lawsuit brought to enforce the rights of tenants with disabilities to live with an assistance animal,” Acting U.S. Attorney Audrey Strauss said in a statement. “With this resolution, we again emphasize that condominiums, cooperatives, landlords, and property managers are required by federal law to provide reasonable accommodations to people with disabilities.”

Coach’s Tip: In January 2020, HUD released new guidance to clarify how housing providers can comply with the Fair Housing Act when assessing a person’s request to have an animal in housing to provide assistance because of a disability. For more information, see the Coach’s April 2020 lesson, “How to Comply with HUD’s New Guidance on Assistance Animals,” available to subscribers here.

#6: DO Evaluate Whether Requested Accommodation Is Necessary

When evaluating a reasonable accommodation request, examine whether the requested accommodation is necessary—that is, that there’s an identifiable relationship, or nexus, between the requested accommodation or modification and the individual’s disability, according to HUD.

Example: In June 2020, the Justice Department filed a statement of interest in a lawsuit filed by a resident against a public housing authority in Washington state.

According to the complaint, the resident had quadriplegia and required caregiver assistance for the necessities of daily life, such as eating, dressing, and administering medication. Due to the ongoing COVID-19 crisis, the resident alleged that his current caregiver was the only care provider to assist him. To do so, she had to commute to his apartment each day, often transporting food, medicine, and medical supplies, and remain in the unit for a significant period of time.

The community was located in a densely populated neighborhood of Seattle and consistent parking wasn’t always available. When available, parking was limited to two hours. The community had an onsite parking garage for residents and staff. The resident said that the community previously allowed the caregiver to park in the garage, but that changed in early March 2020, when the community allegedly had the caregiver’s car towed, saying that since she wasn’t a resident or an employee, she wasn’t allowed to park in the building.

The resident asked the property manager to allow the caregiver to continue to park in the garage. Treating it as a reasonable accommodation request, the manager forwarded the request to the community’s ADA committee, which denied the request on the grounds that the caregiver wasn’t disabled, and the parking space was for the caregiver, so it wasn’t required to grant the accommodation. The resident’s appeal was pending before the community’s ADA committee.

The resident sued the community for denying his reasonable accommodation request to allow his caregiver parking access in the building’s garage. Allegedly, both the resident and his doctor said that he could suffer serious or dire health consequences if he didn’t receive regular care.

In early May 2020, the court issued a temporary order to prohibit the community from towing the caregiver’s car. The resident’s request to make the order permanent was pending before the court.

In the meantime, the Justice Department filed a statement of interest, indicating that under the FHA, a parking space for a caregiver of a resident with a disability may be a “necessary” accommodation under certain circumstances. Although it would be the caregiver, and not the resident himself, who would park in the requested space, having a parking space for the caregiver may be necessary if having the caregiver park on the premises ensured the provision of in-home care and support services that the resident needed to use and enjoy his dwelling.

“With this filing DOJ is making clear what we believe to be the state of the law—the Fair Housing Act requires modifications to housing complex policies when modifications are necessary to afford a resident with a disability with equal access to the enjoyment of his or her home. That is true even when the accommodation relates to caregiver access,” U.S. Attorney Brian T. Moran said in a statement. “Safeguarding the rights of people with disabilities is even more important during this period of COVID-19, when the isolation and risks facing many people with disabilities are heightened.”

#7: DON’T Reject Requests Without Considering Alternatives

The law permits housing providers to deny a request for a disability-related accommodation when providing the accommodation would be unreasonable—that is, it would impose an undue financial and administrative burden on the community or fundamentally change its operations, according to the HUD/DOJ guidelines.

The determination of undue financial and administrative burden must be made on a case-by-case basis involving various factors, such as the cost of the accommodation, the financial resources of the community, the benefits that the accommodation would provide, and the availability of alternatives that would effectively meet the resident’s disability-related needs, according to the HUD/DOJ guidelines.

Example: In July 2020, HUD charged the owners and operators of rental housing in Georgia with violating fair housing law for allegedly refusing to grant the reasonable accommodation request of a resident with disabilities who lived in one of their properties.

In his HUD complaint, the resident alleged that his lease provided that his rent payment was due on the first day of every month and that a late fee would be assessed if he didn’t pay his rent by the fifth of the month. As a result of a disability, however, the resident’s income was solely derived from disability benefits paid to him by the government on or after the second Wednesday of every month.

When he moved in, the community allegedly granted his oral request to pay his rent on or after the second Wednesday as a reasonable accommodation for his disability because he couldn’t change the date when his disability benefits were deposited into his account. The property was later sold, but he said that the new owner honored his prior reasonable accommodation request to pay his rent on or after the second Wednesday of the month.

The property changed hands again, but this time he said that the new owner wouldn’t honor the arrangement. He alleged that he made a second, written request for a reasonable accommodation to change his payment due date, but the community denied the request because it pertained to his financial condition (receipt of disability benefits), and not to his disability. Ultimately, the community won the eviction case, and the resident moved out. 

The resident filed a complaint with HUD, which charged the community with disability discrimination for refusing his reasonable accommodation request to change the due date of his rental payment. HUD’s charge will be heard by an administrative law judge unless either party elects to bring the case to court. 

“Granting a reasonable accommodation isn’t giving someone with disabilities special treatment,” Anna María Farías, HUD Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “These accommodations make it easier for them to fully enjoy their homes. More importantly, persons with disabilities have a right to such accommodations, a right that’s protected by law.”

Coach’s Tip: When a housing provider denies a requested accommodation, HUD says that the provider should discuss with the person making the request whether there’s an alternative accommodation that would effectively address his disability-related needs without a fundamental alteration to the provider’s operations and without imposing an undue financial and administrative burden. As part of this interactive process, HUD says that the housing provider should recognize that the individual requesting the accommodation or modification is most familiar with his or her disability and is in the best position to determine what type of aid or service will be effective to meet a disability-related need. These discussions often result in an effective accommodation or modification for the requester that doesn’t pose an undue financial and administrative burden for the provider.

#8: DON’T Assess Extra Fees or Insist on Additional Requirements

It’s unlawful to require individuals with disabilities to pay extra fees or deposits as a condition of receiving a requested accommodation, according to HUD/DOJ guidelines. If, for example, you generally require pet owners to pay a pet deposit or additional monthly pet rental fees, then you could trigger a fair housing complaint if you require an applicant or resident to pay those fees as a condition of granting a disability-related request to keep an assistance animal.

Example: In February 2020, HUD charged a New York property owner with discrimination for denying the reasonable accommodation request of a resident with mental disabilities. In its charge, HUD alleged that the owner tried to charge the resident extra fees for having an assistance animal, made threats to intimidate and deter her from exercising her fair housing rights, and eventually evicted her. HUD’s charge will be heard by an administrative law judge unless either party elects to take the case to court.

“It is important that individuals with disabilities are allowed to have the reasonable accommodations they need to fully utilize the place they call home without having to meet extra requirements,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD will continue fighting to protect the rights of individuals and families when housing providers fail to meet their obligations under the law.”

#9: DON’T Ignore Potential Retaliation Claims

Watch how you treat residents after they’ve made a reasonable accommodation request. The law bans retaliation against anyone engaged in a protected activity, including filing a discrimination claim or making a request for a reasonable accommodation. Retaliation is a separate violation of fair housing law, so it’s unlawful to retaliate against someone simply for making a disability-related request—even if she isn’t legally entitled to the receive requested accommodation.

Example: In July 2020, an Ohio court refused to order judgment with a trial in a lawsuit filed by a resident who alleged that the owners and managers of her community denied her requests for accessible parking or transfer to a first-floor unit. She also accused the community of retaliating against her.

The resident, who lived in a third-floor unit, alleged that she had various physical disabilities that made “walking, climbing flights of stairs, and breathing” difficult. The parties disputed whether the resident requested a reasonable accommodation for a first-floor unit before she moved in. A few months later, the community allegedly offered her a first-floor unit, but she declined and instead allowed her daughter and grandchild to rent the unit.

Soon afterward, the resident submitted a series of written requests for reasonable accommodations to move to a first-floor unit. The resident allegedly submitted a doctor’s note stating that she suffered from several conditions and that it was in her best interest to have a first-floor apartment. Ultimately, she claimed, the community informed her that it wouldn’t be renewing her lease and gave her less than two months to move out.

Shortly before the deadline, the resident filed the lawsuit and the court granted her request for a temporary order to prevent her eviction. To resolve that issue, the community allowed her to move a first-floor unit.

After a series of proceedings, both sides asked for judgment without trial on her remaining claims for disability discrimination and retaliation under fair housing law.

Denying the requests, the court ruled that further proceedings were required to resolve the case. On her disability discrimination claim, the community argued that the resident didn’t show that she had a disability within the meaning of the FHA because her alleged impairments didn’t substantially limit any of her major life activities. The community pointed to her testimony about significant physical activity at work, but the resident responded with evidence of impairment from her doctor and her testimony.

On her other claim, the community argued that it couldn’t be liable for retaliation because it was entitled to choose not to renew any lease agreement once the lease term expired. In essence, the community claimed that its exercise of a contractually specified right can’t amount to retaliation.

The court disagreed, ruling that the exercise of a contractually specified right could constitute retaliation if the conduct was done to interfere with a resident’s exercise of rights under fair housing law [Connor v. PJ Apartments LLC, 2020 U.S. Dist. LEXIS 124024, July 2020].