How to Avoid Fair Housing Trouble When Dealing with Individuals with Mobility Impairments
In this lesson, we’re going to review fair housing rules on dealing with individuals with mobility impairments. Federal fair housing law bans discrimination against people on the basis of disability, including a wide range of mobility impairments. People with mobility impairments who use wheelchairs are particularly likely to face housing discrimination, according to a 2015 nationwide study conducted by HUD and the Urban Institute. Among its key findings:
- Well-qualified testers who use wheelchairs were more likely to be denied an appointment to view recently advertised rental housing in buildings with accessible units than comparably qualified testers who are ambulatory. Those who did receive an appointment were less likely than their ambulatory counterparts to be told about and shown suitable housing units.
- When testers who use a wheelchair ask about modifications that would make the available housing more accessible to them, rental housing providers agreed in most instances. In a quarter of the requests, however, providers either failed to provide a clear response or explicitly denied modification requests.
This month, we’ll review fair housing requirements and suggest seven rules for dealing with individuals with mobility impairments. Finally, you can take the Coach’s Quiz to see how much you’ve learned.
Coach’s Tip: This lesson focuses on federal fair housing law, which applies to private, public, and federally assisted housing providers. Housing providers that receive federal financial assistance also are subject to the requirements of Section 504 of the Rehabilitation Act of 1973, which may impose greater obligations than federal fair housing law with respect to disability-related matters. More information on Section 504 is available on HUD’s website at https://www.hud.gov/program_offices/fair_housing_equal_opp/disabilities/sect504faq.
WHAT DOES THE LAW SAY?
The Fair Housing Act (FHA) bans discrimination in housing because of race, color, national origin, religion, sex, familial status, or handicap (though the term “disability” is more commonly used).
The FHA defines an individual with a disability as “any person who has a physical or mental impairment that substantially limits one or more life activities; has a record of such impairment; or is regarded as having such an impairment.” In general, the law applies to a wide array of physical or mental impairments that substantially limit one or more major life activities. Life activities include walking, breathing, performing manual tasks, and caring for oneself, among other things.
Many conditions substantially limiting mobility may fall within this broad definition—it covers obvious or apparent impairments, such as a paralysis or loss of limbs, that may require use of a wheelchair, cane, or motorized device to ambulate. It also covers nonobvious impairments, such as heart disease, lung problems, arthritis, and many other conditions impeding an individual’s ability to walk due to nerve damage, muscle weakness, or shortness of breath.
Compliance with fair housing law requires more than merely refraining from discrimination against individuals with disabilities. The law goes further by imposing affirmative duties on communities to provide reasonable accommodations and modifications as necessary to allow individuals with disabilities to fully enjoy their dwellings. The law also includes accessibility requirements in the design and construction of covered multifamily communities.
Under the FHA, it’s unlawful to refuse to make reasonable accommodations in rules, policies, practices, or services when the accommodation is necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling, including the unit and common areas, according to federal guidelines jointly issued by HUD and the Justice Department. Requests must be made by or on behalf of an individual with a disability and considered on a case-by-case basis.
Nevertheless, there are limits to the community’s duty to grant reasonable accommodation requests. Under fair housing law, a request may be denied if providing the accommodation is not reasonable—that is, it would impose an undue financial and administrative burden on the housing provider or fundamentally alter the nature of its operations.
The HUD/DOJ guidelines warn against simply rejecting a request because the community believes the request is unreasonable. Instead, the housing provider is urged to engage in an “interactive process”—that is, a discussion with person making the request about whether there is an alternative accommodation that would meet the individual’s disability related needs without imposing an undue financial and administrative burden. If there is a reasonable alternative, then the housing provider must grant it, according to the guidelines.
The FHA makes it unlawful to refuse to permit, at the expense of the person with a disability, reasonable modifications of existing premises occupied or to be occupied by the person if the modifications may be necessary to afford the person full enjoyment of the premises. Reasonable modifications are structural changes to interiors and exteriors of dwellings as well as common and public use areas. The request may be made at any time during the tenancy.
The person with a disability must have the community’s approval before making a modification, according to HUD/DOJ guidelines. The community may require the resident to provide a description of the proposed modifications and to obtain any building permits needed to make the modification. Although the community may not insist that a particular contractor do the work, it may require the resident to ensure that the work be performed in a workmanlike manner.
The resident is obligated to restore portions of the interior of the unit to its previous condition at the end of his tenancy only where “it is reasonable to do so” and where the housing provider has requested the restoration. As the HUD/DOJ guidelines make clear, however, a resident is not responsible for restoring modifications to the exterior of the unit. For example, ramps to the front door of the dwelling or modifications made to laundry rooms or building entrances are not required to be restored, the guidelines state.
Design and construction standards. The FHA requires certain accessibility features in the design and construction of communities with four or more units that were first occupied after March 13, 1991, including:
- Accessible entrance on an accessible route;
- Accessible common and public use areas;
- Doors sufficiently wide to accommodate wheelchairs;
- Accessible routes into and through each dwelling;
- Light switches, electrical outlets, and thermostats in accessible locations;
- Reinforcements in bathroom walls to accommodate grab bar installations; and
- Usable kitchens and bathrooms configured so that a wheelchair can maneuver about the space.
These requirements apply to all public and common use areas—and to all rental units, if the building has an elevator. In buildings without an elevator, the standards apply only to ground-floor units.
FOLLOW 7 RULES TO AVOID FAIR HOUSING TROUBLE
WHEN DEALING WITH INDIVIDUALS WITH MOBILITY IMPAIRMENTS
Rule #1: Don’t Discriminate Against Individuals with Mobility Impairments
Fair housing law bans discrimination against individuals with disabilities, including those with mobility impairments. That means it’s illegal to turn away a prospect simply because he uses a wheelchair due to a mobility disorder. It doesn’t matter whether it’s based on concerns about the community’s image or the costs associated with requests for reasonable accommodations or modifications. You can’t let disability-related stereotypes or concerns about potential liability sway decisions about how you treat applicants and residents with disabilities at your community.
Example: In August 2017, an Indiana community agreed to an undisclosed settlement to resolve allegations of disability discrimination for denying housing to an applicant because of her elderly mother’s disability.
The lawsuit was filed by a woman who expressed interest in renting a two-story townhouse for herself, her children, and her mother, who was quadriplegic. According to the daughter, she and the children intended to use the upstairs bedrooms, while her mother, who spent most days in a hospital bed due to paralysis, would use the downstairs living room. After disclosing her mother’s condition, the woman alleged that the community denied her application because the community wasn’t handicapped accessible and “it will be a liability to offer you a unit that is not accommodating to everyone in the household.”
The community denied any wrongdoing, but the parties reached a settlement after a court refused to dismiss the case [Fair Housing Center of Central Indiana v. Grandville Cooperative Inc.].
Example: In November 2017, the owners and manager of an eight-unit community in South Dakota agreed to pay $20,000 to settle allegations of disability discrimination by refusing to allow a resident to return to his unit from a rehabilitation facility if he were using a wheelchair because it could damage the carpet [U.S. v. Salem].
Coach’s Tip: Beware of unlawful steering--that is, guiding, directing, or encouraging prospects to live in a particular part of your community or discouraging them from living in other parts. That means you shouldn’t make assumptions about where a prospect with a mobility disorder would prefer to live—for example, by showing him only ground-level units based on the assumption that it would be easier for him to get around. Limiting a prospect’s housing choices based on a disability is prohibited under fair housing law.
Rule #2: Curb Curiosity About Mobility Impairments
Make sure you understand and comply with fair housing rules governing disability-related inquiries. In general, you can’t ask applicants or residents questions about the nature of their disabilities—or even whether they’re disabled.
Here are some examples of questions you and your staff members mustn’t ask applicants who use wheelchairs:
- “How long have you been in a wheelchair?”
- “Could you walk at all without the wheelchair?”
- “Why do you use a motorized wheelchair instead of a regular one?”
- “Did you have any problem getting here in your wheelchair?”
The key to avoiding such slip-ups: Provide at least basic fair housing training to any staff member who may have contact with the public, including temporary office help. For example, a temporary receptionist should be taught the basics so that he doesn’t ask questions about a prospect’s disability. The temp might believe it’s merely an innocuous comment, but it could be considered inappropriate disability discrimination.
The law does allow you to ask for disability-related information when an applicant or resident requests a reasonable accommodation or reasonable modification, but only under certain circumstances.
To be clear: You may NOT ask for more information when the resident requests a reasonable accommodation that’s clearly related to an obvious or known disability. For example, suppose an applicant with an obvious mobility impairment requests an assigned parking space near the entrance closest to his unit. Both the disability and the disability-related need for the accommodation are both readily apparent, so you may not ask for documentation to verify his need for the parking space.
On the other hand, you may ask for additional information if either the disability or the disability-related need for the requested accommodation or modification is not readily apparent. This would apply, for example, if the resident making the request doesn’t have an obvious disability. It would also apply if a resident has an obvious disability, but his disability-related need for the requested accommodation isn’t readily apparent. If, for example, a resident in a wheelchair requests an exception to the “no pets” policy, then you may ask for information about the disability-related need for the animal.
Federal guidelines spell out all the details, but the rules can be complicated, so it’s a good idea to get legal advice if there’s any doubt about when and how to ask for disability-related information in a particular case.
Rule #3: Carefully Consider Requests for Reasonable Accommodations
Be prepared to handle requests for reasonable accommodations by individuals with mobility impairments. Under federal guidelines, a person makes a request for a reasonable accommodation whenever she makes it clear that she’s requesting an exception, change, or adjustment to a rule, policy, practice, or service because of her disability.
The fact that a person qualifies as having a disability doesn’t mean that she’s entitled to exceptions to any or all community rules, policies, or services. To show that the requested accommodation is necessary, there must be an identifiable relationship between the requested accommodation and the individual’s disability.
Consider the example cited in the HUD/DOJ guidelines involving a request by a resident, who has a mobility impairment that substantially limits her ability to walk, for an assigned parking space near the entrance to her unit. The community has a policy of providing unassigned parking spaces to residents, and although there are unassigned spaces near the entrance, they’re available to all residents on a first-come, first-served, basis. The guidelines state that the community must make an exception to its policy of not providing assigned parking spaces to accommodate this resident.
Failure to take requests for reasonable accommodations seriously—or an undue delay in responding to a request—could lead to fair housing trouble.
Example: In September 2018, the owner and managers of an 84-unit apartment complex in Utah agreed to pay as much as $20,000 to settle allegations that they unlawfully refused a reasonable accommodation request for an assigned parking space from a resident with disability. The settlement resolves the resident’s complaint that the community refused her request to be assigned a designated parking space close to her unit. Under the settlement, the community agreed to pay the resident $18,000, transfer her to a ground-floor unit, pay moving expenses up to $2,500, and assign her a designated parking space in front of her unit.
“For 45 years persons with disabilities who reside in HUD-financed housing have had the right to receive the accommodations they need to fully enjoy their homes, but in too many instances that right continues to be denied,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Today’s settlement reaffirms HUD’s commitment to ensuring that housing providers are aware of their obligations under the nation’s fair housing laws and take steps to comply with those obligations.”
Example: In November 2018, the owners and managers of a Las Vegas community agreed to settle a HUD complaint alleging that the on-site manager denied a request to move a married couple with disabilities to a first-floor unit.
In their HUD complaint, the residents claimed that they were denied the opportunity to move to a first-floor unit despite being told upon moving in that they would be able to transfer to a first-floor unit as soon as one became available. The couple said that they made the same request on numerous occasions over a seven-year period, but each time their request was denied even though they observed first-floor units being rented to others. Earlier this year, according to the couple, the community approved their request to move to a first-floor unit, but told them that they would have to pay a move-in fee of $700 and an additional $400 security deposit. Allegedly, the couple couldn’t afford the extra costs, so they had to move out. The housing provider denied that they discriminated against the couple.
Under the settlement, the community agreed to pay the couple $6,000, forgive $1,392 in unpaid rent, and amend its fair housing policies to include information about reasonable accommodations. In addition, all leasing and management staff who work with tenants at the community will attend fair housing training.
“Housing providers need to understand that many people with mobility impairments rely on accommodations to fully enjoy their home, and that they have an obligation to provide those accommodations,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Hopefully today’s settlement will make more housing providers aware of their responsibilities under the Fair Housing Act.”
Rule #4: Carefully Review Requests for Reasonable Modifications
Fair housing law requires communities to allow an applicant or resident with a disability to make reasonable modifications to the interior of his unit—as well as common areas—to allow him to fully enjoy the housing and related facilities. Under the FHA, the housing provider must permit reasonable modifications, but the resident is responsible for paying for it.
Modifications for individuals who have mobility impairments requiring the use of a wheelchair may include: widening doorways, installing grab bars in bathrooms, lowering kitchen cabinets, adding a ramp to a primary entrance, or altering a sidewalk to provide access to a public or common area.
It’s unlawful to refuse to turn away applicants who request reasonable modifications because of a mobility impairment.
Example: In August 2018, HUD announced a settlement of a complaint accusing a California community of discriminating against an applicant with disabilities by rejecting her request for modifications to a wheelchair-accessible unit and bypassing her application for the unit, instead renting it to a family that had applied at a later date and had no member in need of the accessible features of the unit.
The applicant filed the HUD complaint alleging that she had been denied the opportunity to rent one of two wheelchair-accessible units at the community using her Housing Choice Voucher. According to the complaint, the woman was first on the waiting list for both units. She said she asked permission to further modify the unit to meet her needs, but that her modification request was denied and instead the unit was rented to a family that applied for the unit after her which had no members who needed the unit’s accessible features.
Among other things, the settlement required the community agreed to pay the applicant $7,500 and allow her to remain on the waiting list for another accessible unit.
“Requests for reasonable accommodations aren’t requests for special treatment. They give persons with disabilities the opportunity to fully enjoy their homes,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Hopefully the settlement we’re announcing today will help other housing providers to recognize and comply with their obligation to uphold the nation’s housing laws.”
Coach’s Tip: You can’t require a current resident to move to a different unit in lieu of allowing him to make a reasonable modification. In an example from the HUD/DOJ guidelines: A resident with a mobility impairment requests that he be permitted to install, at his expense, a ramp so he can access his unit using his motorized wheelchair. The existing entrance to the building isn’t accessible because the route requires going up a step. The resident isn’t required to accept an offer by the community to move to a different unit in lieu of installing the ramp since his request to modify his unit was reasonable and must be approved.
Rule #5: Don’t Ban Motorized Mobility Devices
Review your rules on the use of motorized vehicles to ensure that you don’t inadvertently violate fair housing law. When originally adopted, the rules were probably aimed at motorized scooters and the like, which could damage your grounds or pose a safety hazard if used inappropriately. While there’s nothing wrong with adopting rules to address those concerns, make sure the rules don’t cast too broad a net—by prohibiting or unduly restricting use of power-driven wheelchairs and other motorized devices by individuals with mobility impairments.
Nevertheless, fair housing law doesn’t require you to abandon legitimate concerns about property damage or injury to other residents caused by the unsafe use of motorized vehicles—regardless of whether it’s a moped or a power wheelchair. For example, federal guidelines acknowledge that a reasonable accommodation may be conditioned on meeting reasonable safety requirements, such as requiring persons using motorized wheelchairs to operate them in a manner that doesn’t pose a risk to the safety of others or cause damage to another person’s property.
One thing you can’t do: Require applicants or residents who use a motorized mobility device to pay a higher security deposit or to obtain extra liability insurance to cover potential damage to the walls or woodwork from use of the mobility device.
Fair housing law doesn’t permit communities from passing the costs along by requiring individuals with disabilities to pay extra fees or deposits as a condition of receiving a requested accommodation, according to the HUD/DOJ guidelines. For example, a community may not require a resident who has a disability-related need for a motorized scooter to pay an extra deposit or to obtain liability insurance as a condition for allowing him to use the scooter outside his unit. Nevertheless, the community may charge the resident for the cost of repairing any damage to his unit or the common areas caused by the scooter if the community has a practice of assessing residents for any damage they cause to the premises.
Rule #6: Familiarize Yourself with FHA Accessibility Rules
With few exceptions, multifamily communities built within the last 20 years must comply with the FHA’s design and construction requirements. The FHA requires that multifamily housing constructed for first occupancy after Mar. 13, 1991, have basic accessible features. In general, these rules require that all ground-level and elevator-accessible units, public-use areas, and common areas be accessible to individuals with mobility impairments.
Though the requirements have been in place for more than two decades, communities continue to draw the attention of federal fair housing enforcement officials for failing to comply with the design and construction standards. Liability can reach the hundreds of thousands of dollars—not only in costs to remedy inaccessible design features, but also damages to individuals allegedly harmed by violations.
Example: In November 2018, the Justice Department announced a $11.3 million settlement in a fair housing case alleging that the owners of 50 apartment complexes in six states and the District of Columbia failed to build the communities with accessible features for persons with disabilities.
As alleged in the government’s complaint, the defendants built the properties at issue with significant barriers that inhibited access to the units and the associated public and common-use areas. These barriers include routes to building entrances with steps and excessive slopes, units with electrical outlets and thermostats that are beyond the reach of persons who use wheelchairs, and kitchens and bathrooms with insufficient space for persons who use wheelchairs to maneuver.
Under the settlement agreement, the defendants must spend $8.7 million to retrofit 36 properties that they currently own. This amount is in addition to $2.4 million in retrofits that had been made to many of the properties after the United States sued. The defendants also must pay $175,000 to compensate victims and up to $25,000 for accessibility retrofits at 14 properties they no longer own. The defendants also agreed to undergo training, to construct any new multifamily housing in accordance with the FHA and Americans with Disabilities Act, and to provide periodic reports to the Justice Department.
“The Justice Department is committed to ensuring that new multifamily housing is built with the accessible features that are required by law,” Assistant Attorney General Eric Dreiband for the Civil Rights Division said in a statement. “This comprehensive settlement will ensure that equal housing opportunities are afforded to persons with disabilities.”
“The Fair Housing Act and Americans with Disabilities Act ensure that persons with disabilities have access to housing, leasing offices, and related amenities,” said U.S. Attorney Jessie K. Liu for the District of Columbia. “The U.S. Attorney’s Office is committed to vigorously pursuing enforcement of the rights guaranteed by these laws. This settlement is an example of that commitment in the District of Columbia and elsewhere and serves to promote equal access to multifamily housing for persons with disabilities.”
Rule #7: Make Sure Your Leasing Office Is Accessible
Check to ensure that your leasing office is accessible to people with mobility impairments. The Americans with Disabilities Act (ADA) requires that places of public accommodations, such as rental offices, at multifamily housing built for first occupancy after Jan. 26, 1993, have accessible features. Because it’s open to the public, your leasing office is considered a place of public accommodation, which means that it’s subject to the ADA, in addition to the FHA.
At a minimum, make sure that there are no barriers to the entrance to the leasing office and that there’s adequate accessible parking in the leasing office’s parking lot, including parking that’s accessible for vans. Check to ensure that bathrooms are accessible for people who are using wheelchairs or other mobility devices. Failure to do so can lead to significant expense in the costs of defending disability discrimination claims, as well as the cost of retrofitting your office.
Coach’s Tip: For more information about ADA requirements for your leasing office and any other community facilities that are open to the public, visit the Justice Department’s ADA website at http://www.ada.gov/.
- Fair Housing Act: 42 USC §3601 et seq.
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|January 2019 Coach's Quiz|