How to Abide by Fair Housing Law When Dealing with Environmental Concerns

This month, the Coach reviews how fair housing laws may affect how you handle environmental concerns in the upkeep of your community.

This month, the Coach reviews how fair housing laws may affect how you handle environmental concerns in the upkeep of your community.

Fair housing may not be the first thing that comes to mind when you’re dealing with environmental issues. After all, you and your maintenance team no doubt have your hands full complying with the various laws, regulations, and health and safety codes applicable to your community. In various ways, these laws specifically address environmental hazards, including lead-based paint, mold, bedbugs, and other health and safety threats—and the methods used to remedy these problems. Failure to comply can lead to costly remediation expenses, fines, or penalties.

Example: In May 2017, New York Attorney General Eric T. Schneiderman announced a settlement with two Buffalo-area landlords to correct lead-based paint hazards at two multifamily housing communities, which had a history of property violations against the properties’ former owner. Under the settlement, the current property owners agreed to address lead-based paint hazards by replacing all windows, tight-fitting doors, cabinet drawers, floors, and other “friction surfaces” that contain lead-based paint.

Lead-based paint continues to be a problem for communities built before 1978, when the dangers of lead paint—particularly to young children—were recognized and the use of lead-based paint was banned. It might be tempting to avoid renting to those most at risk—young children—but that practice is banned under fair housing law. Regardless of the presence of lead-based paint, it’s unlawful to exclude or discourage families with children under 18 from living there.

Fair housing rules may also come into play when dealing with other environmental concerns, such as mold, bedbugs, secondhand smoke—even the painting or cleaning supplies you use. Unless you’re careful, you could trigger a fair housing complaint based on the presence of hazardous substances, the way you handle reported problems, or the methods used to remedy the offending situation.

In this lesson, we’ll review relevant fair housing law and offer five rules to help you avoid fair housing trouble when addressing environmental concerns. Then, you can take the Coach’s Quiz to see how much you’ve learned.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) prohibits discrimination in housing because of race, color, religion, sex, national origin, familial status, or disability. The law targets discriminatory practices by making it unlawful to deny housing—or to discriminate in the terms and conditions of the rental—because of race, disability, or any of the other protected characteristics. In particular, it is unlawful to fail or delay maintenance or repairs of rental dwellings because of race, color, religion, sex, familial status, national origin, or disability, according to HUD regulations.

Example: In September 2016, a court ruled that property managers at an Oregon community were liable for race discrimination based on allegations that a manager ignored an African-American resident’s maintenance requests, but satisfied similar requests from his white neighbor. The resident proved that the manager treated him differently than she treated other residents—specifically, his next-door neighbor—in providing maintenance services, at least in part, because of his race. He didn’t have to prove that his race was the only reason that the manager treated him differently—only that it was a “motivating factor.” The court awarded him $15,000 in damages, minus an offset for back rent and expenses owing at the end of his tenancy [Moye v. The Connifer Group, July 2016].

The same rules would apply to complaints about or maintenance requests to address environmental concerns at the community. You could face a fair housing complaint, for example, if you respond swiftly to complaints from white residents about environmental hazards but ignore similar complaints from minority residents.

When dealing with environmental hazards, keep in mind that fair housing law protects those most at risk, including young children, pregnant women, and individuals with disabilities. For example, you could face a fair housing complaint if you turn away households with young children or pregnant women—even in an effort to minimize exposure to environmental hazards.

The FHA bans discrimination based on familial status except in communities that qualify for an exemption under strict rules governing housing for older persons. Otherwise, it’s unlawful to discriminate against households based on the presence of one or more children under age 18 living with a parent, guardian, relatives, friends, and others who have permission to care for the child. The same rules ban discrimination against pregnant women and others in the process of securing legal custody of a child under 18.

Equally important in addressing environmental hazards are the FHA’s disability provisions. Under the FHA, an individual with a disability means anyone who has a physical or mental impairment that substantially limits one or more major life activities, has a record of having such an impairment, or is regarded as having such an impairment.

These rules apply even if the impairment isn’t obvious or apparent. HUD’s list of impairments includes many physical and mental conditions with few, if any, obvious symptoms to suggest that a particular prospect qualifies under the FHA’s disability-related provisions. That includes individuals with breathing problems, compromised immune systems, or chemical sensitivities, who may be adversely affected by environmental conditions affecting air quality.

Furthermore, the FHA protects individuals who do not now have—or ever had—a physical or mental impairment that substantially limits a life activity. The law applies to individuals with “a record of” impairment, which means someone who has a history of—or was 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 catchall phrase that includes an individual with—or without—an impairment when he is treated by another as having such an impairment.

To satisfy fair housing law, communities must grant requests for reasonable accommodations or reasonable modifications when necessary to enable an individual with a disability to fully enjoy use of the property. Examples of reasonable accommodations with respect to environmental concerns include changing the type of paint, cleaning products, or pesticides used in or around a resident’s unit. Examples of reasonable modifications include removal of carpeting or installation of air purifiers, at the resident’s expense, if necessary to alleviate problems caused by exposure to allergens and other environmental concerns.

Coach’s Tip: Be careful how you treat residents after they’ve asked for reasonable accommodations to address environmental concerns. Under the FHA, it’s unlawful to “coerce, intimidate, threaten, or interfere with” anyone who has exercised his or her rights under fair housing law—as well as anyone who has helped or encouraged someone to do so. There must be clear proof of a connection between the protected activity—the accommodation request—and any adverse action taken against the resident, but he could get the benefit of the doubt if the timing looks suspicious or you don’t have proof of a legitimate, nondiscriminatory reason for your actions.

TIME OUT!

HUD Issues New Rule, Awards Grants to Address Lead Paint Hazards

In January 2017, HUD issued a new rule to lower the department’s threshold of lead in the child’s blood to match the more protective guidance of the Centers for Disease Control and Prevention (CDC). HUD’s new action level for lead in a young child’s blood has been lowered from 20 micrograms of lead per deciliter of blood (µg/dL) to 5. By lowering HUD’s reference level to conform to the CDC’s, HUD will be able to intervene more quickly to stop the negative impact lead can have on the lives of these and other young children. The new rule will cover about 3 million HUD-assisted housing units built before 1978, the year that lead-based paint was banned for residential use. Of these homes, about 500,000 are estimated to have children under age 6 residing in them.

HUD has a long history of working to ensure lead-safe housing, including more than $1.58 billion in grants awarded since 1993 for the identification and control of lead-based paint hazards in more than 190,000 low-income, privately owned housing units.

In June 2017, HUD Secretary Ben Carson announced the latest round of funding—more than $127 million to 48 state and local government agencies—to address lead-based paint and other home health and safety hazards. The grants will reduce the number of children with elevated blood-lead levels and protect nearly 7,600 families living in homes with significant lead and other health hazards. Carson said he wants to make lead-paint hazard removal a top priority.

“Children perform better at school and in life if they live in a healthy home,” Carson said in a statement. “A healthy start at home translates to a successful life outside of the home. HUD is committed to working with local communities to eradicate lead paint poisoning to make sure our homes are safe and ensure positive outcomes for families and their kids.”

5 RULES FOR COMPLYING WITH FAIR HOUSING LAW

WHEN DEALING WITH ENVIRONMENTAL CONCERNS

Rule #1: Don’t Exclude Families with Children to Avoid Lead-Based Paint Exposure

Under fair housing law, it’s unlawful to exclude families with young children or pregnant women from rental housing—even if motivated by concerns about health and safety risks posed by environmental hazards. A prime example is lead-based paint, which was widely used before being banned in 1978. Lead is a highly toxic metal that may cause a range of physical and mental health problems, especially in children under age 6. The CDC has determined that there is no safe blood lead level for children since even small amounts of lead can cause permanent neurological damage.

Federal law generally does not require conventional housing providers to remove or remediate lead-based paint hazards, but affected communities may find they have little choice but to remediate lead-based paint hazards since it’s unlawful to refuse to rent to those most at risk—families with young children pregnant women—to avoid potential liability related to lead-based paint exposure. If a family chooses to live in a unit where lead-based paint hazards are not controlled, HUD says that housing providers must notify families of the risks, but may not decline to let them live there because the family has children. The same rules prohibit communities from terminating the tenancy of a family living in a unit where lead-based paint hazards haven’t been controlled against their wishes because of the presence of young children in the family’s household.

Example: In April 2016, HUD charged the owner of a Massachusetts rental property with discrimination and retaliation by refusing to rent an apartment to a married couple with a 2-year-old child. In their HUD complaint, the family alleged that the landlord denied them the opportunity to rent an apartment in the four-unit property because the property contained lead hazards and was therefore unsuitable for children under the age of 6. The couple was already living in the building with the wife’s mother at the time they attempted to rent their own unit. In its charge, HUD alleged that the landlord told the family that he wouldn’t rent an apartment to them because they had a child under the age of 6 and were expecting another baby. The charge also alleged that the landlord began eviction proceedings against the family and the wife’s mother almost immediately after they filed the HUD complaint.

Coach’s Tip: Federal law requires multifamily housing communities built before 1978 to warn tenants about the hazards of lead-based paint. The law, the Residential Lead-Based Paint Hazard Reduction Act of 1992, requires landlords to provide tenants with a pamphlet, “Protect Your Family From Lead in Your Home,” and to share knowledge of lead-based paint hazards on a disclosure form that both parties must sign along with any available records or reports.

Rule #2: Don’t Write Off Environmental Concerns

Don’t dismiss complaints about environmental concerns. In general, the FHA does not impose liability for failure to address complaints about mold or other environmental problems, but it’s important to listen closely to determine whether complaints voicing environmental concerns are related to a disability.

Example: In June 2012, a court dismissed claims that a Virginia community violated the FHA by failing to remedy mold problems in the residents’ unit. The court ruled that the FHA didn’t apply because there was no allegation that the residents had a disability, which caused the failure to remediate the mold to be discriminatory based on a handicap. In contrast to cases where residents with chemical sensitivities and mobility impairments can sue under the FHA for a landlord’s failure to remediate mold, these residents didn’t contend that they had any physical or mental handicap requiring the landlord to provide reasonable accommodations. As noted by other courts, remediation of mold is a duty owed to all tenants and does not, standing alone, support a claim for failure to provide reasonable accommodation under the FHA [Costello v. Malcolm, June 2012].

If an environmental complaint comes from an individual with a disability, then you should take it seriously. If it appears that the request reflects a disability-related need for an exception to your policies, practices, or services, then you should evaluate the complaint under your standard policy governing reasonable accommodation requests. Depending on the circumstances, you may request documentation if either the resident’s disability or his disability-related need for the requested accommodation isn’t obvious or apparent.

Rule #3: Evaluate Requests Related to Chemical Sensitivities

Though it’s a matter of controversy among medical experts, a 1992 HUD memo recognizes multiple chemical sensitivity (MCS) and environmental illness (EI) as disabilities under the FHA. In contrast to common allergies, which wouldn’t qualify as a disability, HUD says that MCS and EI are conditions that involve an extreme hypersensitivity or allergic reaction to a number of different common substances. Since they may involve a wide array of bodily impairments that limit an individual’s ability to breathe, care for themselves, and other major life activities, MCS and EI could satisfy the FHA’s definition of disability, according to HUD.

Because of the law’s broad definition of “disability,” the FHA may apply to claims of chemical sensitivity even if a resident’s condition doesn’t amount to a qualifying impairment. A community could face liability under the FHA for claims by a resident that she was subjected to discriminatory treatment because she was “regarded as” having a disability.

Example: In February 2012, a federal appeals court upheld a ruling requiring a Virginia community to pay $150,000 in damages to a resident who claimed to have multiple chemical sensitivity. For years, the resident requested various accommodations to avoid exposure to paint, chemicals, fumes, dust, mold, and other substances, which she said caused severe and debilitating physical symptoms. After making some efforts to respond to her requests, the community eventually refused to renew her lease.

The court ruled that the resident’s condition didn’t qualify as a handicap under the FHA because she didn’t prove that it substantially affected her breathing. Nevertheless, the court found that the community discriminated against her because it regarded her as having a disability. Its interactions with the resident showed that the community believed she had chemical sensitivities, and it acted with discriminatory intent and retaliated against her because of her disability [Matarese v. Archstone Communities, LLC, February 2012].

Rule #4: Consider Disability-Related Requests for Green Alternatives to Conventional Products

Fair housing rules may require you to address objections to chemicals used in conventional products that don’t cause problems for most people, but may trigger health problems in people who have disabilities. Chemicals or fumes from a variety of products commonly used in cleaning, painting, or pest control operations may aggravate symptoms for individuals with disabilities, particularly those with breathing problems or chemical sensitivities that may make any level of exposure dangerous.

Just because a person has a disability, however, it doesn’t mean that you must grant a request to use alternatives to your standard products. In cases like these, however, it’s a good idea to get legal advice to figure out how far you must go to address a disabled resident’s concerns. A pair of recent court cases from New York, involving requests for green alternatives to the chemicals used to exterminate bedbugs, illustrate just how complicated it can be.

Example: In November 2016, a court refused to dismiss charges of property management code violations against a landlord and a tenant for failure to address a bedbug infestation. At the trial, the owners said they’d pay an exterminator to treat the problem with an insecticide, but the resident had refused to allow access to her unit. The tenant testified that she had cancer and couldn’t be exposed to the chemicals that would be used. Instead, she said the exterminator could use a heat method, which would cost up to $3,000—significantly more than the $775 for the chemical treatment.

Though sympathetic to her health condition, the court ordered the resident to grant access for the exterminator to treat the bedbug problem with an insecticide. The fact that she had cancer did not automatically mean she was “disabled,” mandating further accommodation by the landlord, and if she wanted to use the more expensive heat method, then she must pay the cost difference. [People v. LMA Associates LLC, November 2016].

Example: In February 2017, a New York City housing court judge denied a landlord’s request to evict a resident for unreasonably refusing to grant access to remediate a problem with bedbugs in her unit. The case dates back to 2014, when the landlord first filed for eviction, alleging that the resident, citing medical reasons, refused entry into her unit for the bedbug treatment. The landlord allegedly offered alternative treatments that would not affect her condition, but her continued refusal to allow treatment had allowed the infestation to spread into other units.

The case was repeatedly put on hold while the parties unsuccessfully attempted to resolve the matter. In the meantime, the resident sued in federal court, accusing the landlord of violating fair housing law for failing to accommodate her disability. Those claims were ultimately folded into the eviction proceedings.

After a trial, the judge ruled that the resident had a qualifying disability under city law, which provided her with greater protection than the federal and state laws on the unique facts presented. She had a respiratory condition that flared up when she was exposed to certain environmental elements, including the chemicals used in specified extermination treatment methods.

Nevertheless, her reasonable accommodation claim failed. The evidence showed that, in response to her accommodation requests, the landlord attempted, in two different ways, to accommodate her special needs. In 2014, the landlord’s contractors exterminated the unit using nonchemical means, but it was unsuccessful to remove the problem. The landlord also offered to temporarily move her while it used a chemical process, but she declined. 

Ultimately, the court declined to order her eviction, ruling that the evidence was inconclusive to determine whether the use of a nonchemical bedbug extermination in her home, if properly prepared, would be ineffective or if the infestation was so severe that the chemical bedbug extermination treatment had to be used. The court ordered the landlord to exterminate again using the nonchemical means deemed to be most effective by its contractor, or if the resident chose, to use chemical means as long as the landlord relocated her and her family until it was safe for them to return [2 Perlman Drive, L.L.C. v. Stevens, February 2017].

Editor’s Note: For information about implementing Integrated Pest Management (IPM), a non-toxic extermination method endorsed by HUD, as well as for practical, step-by-step guidance on using green cleaning methods at a multifamily property, see Sustainable Affordable Housing Management, available here.

Rule #5: Take Complaints About Secondhand Smoke Seriously

Secondhand smoke is a common source of environmental complaints. Subject to state and local law, market-rate housing communities are generally free to set their own policies about whether and where to allow smoking. Though relatively few prohibit smoking inside units, some communities prohibit smoking in public or common areas, such as leasing offices, fitness centers, entryways, or hallways.

Whatever your policy about whether or where smoking is allowed, you should pay attention to complaints from residents who claim disability-related problems with exposure to secondhand smoke. Under fair housing law, you must consider a reasonable accommodation request to reduce exposure to secondhand smoke, when necessary to enable an individual with a disability to use and enjoy the property.

Follow your standard policies and procedures to determine whether the resident has a disability that makes her susceptible to the effects of secondhand smoke. In general, an individual is entitled to a reasonable accommodation or modification when there is a clearly identifiable disability-related need for the requested accommodation or modification. Merely being annoyed by secondhand smoke doesn’t give the resident any special rights under fair housing law.

Unless the resident has an impairment that’s obvious or apparent, you don’t have to take her word for it. You’re entitled to request verification from a credible source, such as a health care provider, that she qualifies as an individual with a disability under the FHA—that is, she has a physical or mental impairment that substantially limits one or more major life activities. Such determination must be made on a case-by-case basis, depending on the nature of the resident’s impairment and the severity of her reaction to secondhand smoke.

If you determine that the resident has a disability-related problem with exposure to secondhand smoke, then the next hurdle is deciding what to do about the accommodation request. In general, fair housing law doesn’t require communities to grant an accommodation request unless it’s reasonable—that is, it doesn’t impose an undue or financial and administrative burden on the community or would fundamentally alter the nature of the community’s operations. Though communities may reject unreasonable requests, HUD says that they should do so only after engaging in an “interactive process” to discuss whether there’s a reasonable alternative that would effectively address the resident’s disability-related needs without excessively burdening the community.

Whether a request is unreasonable will depend on your community’s policy on smoking—and what the resident wants. If your community doesn’t restrict smoking, then it’s probably unreasonable to grant a request to make the entire property smoke-free. The same goes for complaints about neighboring smokers: Since the neighbor isn’t doing anything wrong by smoking cigarettes, it would be unreasonable to grant a request to order the neighbor to stop smoking or to require him to transfer to another unit.

Under circumstances like these, don’t just say no—instead, you should engage in the interactive process to explore reasonable alternatives that would meet the resident’s disability-related need to limit her exposure to secondhand smoke. For example, you could offer to have maintenance come to the resident’s unit to determine what could be done to improve air quality, though it’s unclear whether it would be effective. Alternatively, you could offer an early termination of the lease without penalty so the resident can go live at a property where smoking is prohibited.

Coach’s Tip: Earlier this year, HUD issued a new rule requiring all public housing to go smoke-free by August 2018. HUD says the rule will protect the health and well-being of public housing residents and staff by reducing exposure to secondhand smoke and is an opportunity to lower overall maintenance costs and reduce the risk of catastrophic fires.

Though the rule applies only to public housing, fair housing experts say that it’s important for all communities to be aware of HUD’s new smoke-free housing rule. In issuing new rules, HUD often starts with public housing and then later expands to owners and operators of privately owned HUD-subsidized housing. And market-rate communities should also pay attention to what HUD is doing in the public sector since it sometimes signals a trend of things to come for conventional housing communities.

For more information, see the January 2017 lesson, “How to Ensure Fair Housing Compliance When Considering a Smoke-Free Policy,” available on our website here.