How to Avoid Military & Veteran Status Discrimination
We mark Veterans Day by reviewing fair housing laws protecting servicemembers and veterans.
Most Americans consider military service as something worthy of respect. So, it seems paradoxical, not to mention disturbing, that many veterans and active servicemembers have a harder time finding suitable housing because of their service. The national problem with homeless veterans has been well documented. Research shows that veterans in America are 50 percent more likely to become homeless due to poverty, lack of support networks, and other conditions. Among the nation’s roughly 16.5 million veterans, 33,129 were homeless in 2022, according to U.S. Veterans Administration (VA) estimates. While homelessness is less of a problem with servicemembers on active or reserve duty, these men and women and their families experience housing discrimination at disproportionately high rates.
One reason for these problems is that in many parts of the country, it’s not illegal to deny housing to individuals based on their military status. That opens the door for landlords to do things like exclude veterans because of stereotypes about post-traumatic stress disorders (PTSD) or the fact that they use VA vouchers to pay their rent. However, while protection against military status discrimination is limited, it does exist and quite strongly in certain places. Moreover, discriminating against servicemembers and veterans with disabilities brings the federal Fair Housing Act (FHA) into play.
In recognition of Veterans Day on Nov. 11, the COACH dedicates this lesson to complying with laws that ban discrimination based on military and veteran status. First, we’ll explain what those laws are and what they prohibit you from doing. Then we’ll outline seven rules to follow to manage risks of liability under those laws. At the end of the lesson, we’ll give you a quiz posing questions enabling you to apply the key points to real-life situations you’re likely to encounter at your own property and measure how well you’ve learned the material.
WHAT DOES THE LAW SAY?
First, let’s define our scope. This analysis covers discrimination against not only veterans who no longer serve but also current members of the military who are on active or reserve duty, including in the U.S. Armed Forces, U.S. Armed Forces Reserve, U.S. National Guard, or state National Guard.
Under Federal Fair Housing Law
The FHA makes it illegal to base housing-related decisions on a rental prospect or tenant’s race, color, religion, sex, handicap (disability), familial status, or national origin. Military and veteran status isn’t on the list of protected classes. However, nearly 25 percent of U.S. veterans and 46 percent of active servicemembers are non-white and thus protected from discrimination on the basis of race, color, or national origin.
As we’ll see later, FHA liability is a significant risk when a veteran who suffers discriminatory treatment is disabled. The Bureau of Labor Statistics estimates that 27 percent of U.S. veterans have a disability related to their military service. That doesn’t count veterans with non-military disabilities. Under fair housing law, a disabled veteran (or any other person) is protected regardless of the nature or origin of the disability.
The FHA defines disability as a physical or mental impairment that substantially limits one or more major life activities. According to U.S. Department of Housing and Urban Development (HUD) regulations, “physical or mental impairment” includes any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more specified body systems. This is a broad definition that covers both physical injury and mental or psychological disorders like PTSD and depression. Protection from discrimination also extends to those who are perceived as having disabilities, even if those perceptions are wrong.
Attempts to Make Veteran Status an FHA-Protected Class
Since 2013, there have been several Congressional bills proposing to amend the FHA by making veteran status a protected class. The most recent bill, called the Fair Housing Improvement Act, which was introduced in June 2023 by Senator Tim Kaine (D-VA) and Representative Scott Peters (D-CA), would add not only veteran status but also source of income as protected classes.
Under State & Local Fair Housing Laws
Fair housing laws of 10 states include military and veteran status as a protected class:
- New Jersey;
- New York;
- Rhode Island;
- Virginia; and
Some states, including California, also protect civilians who are perceived as being such a member. Others ban discrimination against individuals because they associate with or are a dependent of a servicemember or veteran. In some states, including Illinois and Washington, protection from military status discrimination for veterans covers only those who were honorably discharged. Rhode Island also considers discharge but covers not only honorable but also general administrative discharge.
Keep in mind that many cities across the country, including New York City, Chicago, Seattle, Boston, San Antonio, Columbus, and Wichita, have adopted municipal laws banning military status discrimination.
7 RULES FOR AVOIDING
MILITARY & VETERAN STATUS DISCRIMINATION
Because rules vary so much, it’s crucial to consult an attorney knowledgeable of local laws in each state and municipality where you operate to avoid potential liability for military status discrimination. Even so, the starting point for compliance is to follow seven basic rules.
Rule #1: Don’t Commit Direct Military Status Discrimination
It’s a free country, and you’re entitled to your personal opinions about war and the military. But what you may not do—at least if your property is in a state or city that bans military status discrimination—is allow your opinions to affect your housing decisions.
Example: A Boston landlord/peace activist turned away a prospect upon learning that he was a National Guardsman who had served in Iraq, Afghanistan, and Guantanamo Bay. “Because of what you told me about the Iraq war . . . .we are very adamant about our beliefs. . . . it’s just not comfortable for us,” stated her voicemail. The prospect sued the landlord for violating city law banning military status discrimination.
Military status discrimination doesn’t necessarily have to be based on politics, morals, or personal opinions. Landlords might have what they wrongly deem to be legitimate, nondiscriminatory practical reasons for wanting not to lease to servicemembers. Practices to avoid:
- Refusing to rent to servicemembers out of concern that they’ll be transferred to a different base;
- Charging members of the reserve higher security deposits to cover the risks of their having to cancel the lease due to being called up to active duty;
- Rejecting an otherwise qualified combat veteran due to stereotypes about soldiers and the trauma they suffer; and
- Rejecting military families because of their enhanced legal protections against eviction for nonpayment of rent (see Rule #7 below).
Rule #2: Don’t Engage in Military or Veteran Status-Based Steering
You can also get into hot water by engaging in steering, or seeking to direct people to certain neighborhoods, buildings, or parts of buildings because they are or were in the military. For example, a leasing agent who tries to persuade a naval officer to look at apartments in a different part of town because it’s located closer to the local naval base would be guilty of steering, even if she thinks she’s only acting in the officer’s best interest. Similarly, you shouldn’t limit veterans to apartments located next to other veterans or away from peace activists because you think they’d be more comfortable in those locations.
Compliance Strategy: Consistently tell all prospects about all vacancies that meet their needs, regardless of their military status. And don’t try to talk them out of their housing preferences because you think somebody with their military background and experience would be better off in a different location.
Rule #3: Don’t Reject Veterans Because They Use Vouchers to Pay Rent
Many veterans have difficulty finding and keeping jobs. Federal VA voucher programs are designed to keep low-income veterans and their families from homelessness. The problem is that landlords may refuse to lease to tenants who use VA vouchers to pay rent. In addition to constituting military status discrimination, refusing to accept VA vouchers may run afoul of laws banning source of income discrimination.
Compliance Strategy: You have a legitimate right to establish nondiscriminatory income criteria and reject rental prospects that don’t meet them. But if a prospect is financially qualified, you may not reject them because of the kind of income they have. Source of income discrimination occurs when you exclude prospects who can afford to pay rent because they also happen to be unemployed (and thus can’t pay rent with employment income) or because they receive housing vouchers or other forms of financial assistance other than wages.
VA Programs for Homeless Veterans
These are the main VA programs to support veterans who are homeless or at risk of homelessness:
VASH, the Veterans Affairs Supportive Housing program, the largest program, combines HUD Section 8 housing vouchers with VA support services to assist disabled veterans. Using public housing authorities, HUD provides vouchers to homeless veterans for use in paying rent for privately owned housing while VA case managers connect the veterans with healthcare, mental health treatment, substance use counseling, and other support services enabling them to recover and stay in housing. Because VASH is open only to disabled veterans, rejecting VASH vouchers is a form of disability discrimination.
SSVF, or Supportive Services for Veteran Families, provides case management and other support services to low-income veterans who are homeless or face imminent risk of eviction or foreclosure.
GDP, the Homeless Providers Grant and Per Diem Program, provides funding to roughly 600 state, local, and tribal governments and nonprofits to develop and operate transitional housing and service centers for homeless veterans.
Rule #4: Make Reasonable Accommodations for Disabled Veterans
As we noted earlier, roughly three in 10 veterans have a disability. And under fair housing laws, you must, if requested, make reasonable accommodations to your rules, policies, practices, or services to enable an individual with a disability to fully enjoy use of the property. HUD defines “reasonable accommodation” as a change, exception or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling. Such accommodations may include requests for a designated parking space, live-in aide, transfer to a different unit, or early lease termination.
You must pay for reasonable accommodations. In other words, you can’t reject a request for reasonable accommodations because it will cost you money. By the same token, though, accommodations aren’t reasonable if they impose an undue financial or administrative burden.
Example: A combat veteran diagnosed with PTSD is having nightmares and anxiety attacks because of the hammering, banging, and other noises coming from the construction taking place in the neighboring apartment. So, he asks the landlord for permission to transfer to a more expensive unit until his lease expires in five months. While accepting the tenant’s need for the accommodation, the landlord had qualms about the costs involved. So, it offered to let the family move to the more expensive unit at the same rent as long as they moved back when the construction ends. The tenant rejected the offer, fearing that having to move again might further aggravate his PTSD stress. I need the full five months for a real reprieve, he insisted.
The dispute landed in a California court, which sided with the tenant. The cost of moving the family to the more expensive unit during the construction and letting them stay there through the end of the lease was a reasonable accommodation that wouldn’t cause an undue financial burden on the community, the court reasoned [Holland v. The Related Companies, July 2015].
Compliance Strategy: Asking individuals about their disabilities is normally illegal. However, HUD Guidelines give landlords leeway to gather certain kinds of information about a disability in response to a reasonable accommodation request, specifically information necessary to determine:
- That the person meets the FHA definition of disability;
- Exactly what accommodation is being requested; and
- Whether there’s a “nexus” or relationship between the disability and the need for the requested accommodation.
Caveat: You can’t request information if what you’re asking about is obvious. For example, you wouldn’t be allowed to ask any of the above questions if a veteran in a wheelchair requests a reserved parking space right next to her apartment.
Rule #5: Make Reasonable No-Pet Policy Exceptions for Veterans’ Assistance Animals
Based on case law, allowing an assistance animal at a property with a no-pets policy is the most common form of accommodation requested by veterans with disabilities. This issue is complex and extremely fact specific. To boil it down, you must grant such requests under three conditions:
- The pet is an assistance animal;
- The veteran properly verifies the disability-related need for the assistance animal; and
- Accepting the assistance animal is reasonable.
This is critical compliance information; so, let’s go through the conditions one by one.
Condition 1. Pet Must Be an Assistance Animal. According to HUD Guidance from 2020, the duty to make a reasonable accommodations exemption to a no-pets policy applies only to “assistance animals.” These animals don’t count as pets. There are two kinds of “assistance animals”:
Service animals are dogs trained to do work or perform tasks for an individual with a disability, such as guiding a person with a visual impairment or pulling a wheelchair. HUD says there are two questions landlords may ask to determine if a dog has the training required to be a service animal, assuming this information isn’t readily apparent:
- Is the animal required because of a disability?
- What work or task has the animal been trained to perform?
Other assistance animals include dogs and other animals without specialized training but that still serve a disability-related need, such as emotional support animals.
Example: A disabled veteran with an 18-month-old Doberman weighing 70 pounds seeking to lease a one-bedroom unit produced a note from the VA stating that the veteran’s physician recommended the dog as an emotional support animal. But the Kansas landlord found the VA letter “insufficient” and refused to rent the apartment to him because the dog didn’t meet the requirements of an assistance animal. The veteran complained to HUD, which determined that there was reasonable cause to pursue the case and filed a disability discrimination charge against the landlord and management company [HUD v. Fox Run Apartments, LLC, Peterson Properties, Inc., et al., FHEO No. 07-20-5367-8, Aug. 25, 2022].
Condition 2. Veteran Must Provide Appropriate Documentation. Normally, you’re not allowed to ask tenants if they’re disabled or about the nature and extent of their disability. However, the HUD Guidance gives landlords leeway to request information about both the disability and disability-related need for an animal when tenants request accommodations for assistance animals. You may request verification of the disability only when that disability isn’t what HUD calls “observable.” According to the HUD Guidance, such information may include:
- A determination of disability from a federal, state, or local government agency;
- Receipt of disability benefits or services (Social Security Disability Income (SSDI)), Medicare or Supplemental Security Income (SSI) for a person under age 65, VA disability benefits, services from a vocational rehabilitation agency, or disability benefits or services from another federal, state, or local agency;
- Eligibility for housing assistance or a housing voucher received because of disability; and/or
- Information confirming disability from a physician, optometrist, psychiatrist, psychologist, physician’s assistant, nurse practitioner, nurse, or other healthcare professional.
Practices that are off-limits include:
- Asking about tenants’ diagnoses or the details of their medical condition;
- Requiring tenants to undergo a medical exam; and
- Requiring a healthcare professional to use a specific form, provide notarized documents, or make statements under penalty of perjury.
You may also ask for information about the relationship or connection between the disability and need for the assistance animal to the extent the disability is non-observable and/or the animal provides therapeutic emotional support. Such information typically consists of information from a licensed healthcare professional that’s general as to the condition but specific as to the disabled individual and the assistance or therapeutic emotional support the animal provides.
Condition 3. Request for Assistance Animal Must Be Reasonable. Even if the animal is an assistance animal and the veteran documents their disability and need for the animal, you have to accept the accommodation request only if it’s reasonable. HUD considers an accommodation reasonable if it:
- Doesn’t cause landlords to incur an undue financial and administrative burden;
- Doesn’t cause a basic or fundamental change in the nature of the housing program available;
- Won’t cause harm or damage to others; and
- Is technologically possible.
The type of animal requested is a factor in determining if the accommodation is reasonable. According to the HUD Guidance, landlords should grant the accommodation if “the animal is a dog, cat, small bird, rabbit, hamster, gerbil, other rodent, fish, turtle, or other small, domesticated animal that is traditionally kept in the home for pleasure rather than for commercial purposes.” Reptiles (other than turtles), barnyard animals, monkeys, kangaroos, and other non-domesticated animals don’t count as common household animals, HUD adds.
For purposes of assistance animals, prong three is the crucial criterion. In applying it, recognize your right to require tenants to ensure that their assistance animals comply with reasonable community rules and don’t create untoward damage, danger, or nuisances to other tenants. While you can’t charge special security deposits to ensure the behavior of assistance animals, you can treat significant transgressions of those rules as grounds to exclude or evict.
Example: A Florida condo association with a no-pets policy let a tenant keep two service dogs to accommodate his disability. After several years of good behavior, the dogs turned into incessant barkers who disturbed their neighbors. The association ordered the tenant to get rid of them or face eviction. The state court ruled that the association didn’t violate its duty to accommodate and refused to grant the tenant an injunction barring enforcement of the rule [Mercier v. Turnberry Isle S. Condo. Ass’n, 2021 U.S. Dist. LEXIS 243301].
Also keep in mind that accommodations aren’t reasonable if they require you to deprive other disabled tenants an equal opportunity to use and enjoy their own apartments. Rather than trying to determine which tenant is “more disabled” or has the greater need for accommodation, it’s your responsibility to accommodate both tenants as best you can.
COACH’s Tip: The accommodations process doesn’t end when you conclude that a requested accommodation for an assistance animal is unreasonable. Before rejecting the request, you must dig deeper and, as the HUD Guidance describes it, “engage in the interactive process to discuss whether an alternative accommodation may be effective in meeting the individual’s disability-related needs.” Whether an alternative is reasonable is a judgment call that depends on the circumstances.
Rule #6: Grant Disabled Veterans’ Requests for Reasonable Modifications Requests
In addition to reasonable accommodations, the FHA requires landlords to make or allow reasonable modifications to existing premises that are necessary to afford the disabled person full enjoyment of the premises. Requests for reasonable modifications may be made by rental prospects, current tenants, or representatives acting on the prospect or tenant’s behalf. Reasonable modifications include structural changes to the interior or exterior of units and to common and public use areas when there’s an identifiable relationship between the requested modification and the individual’s disability. For example, it would be unlawful to refuse to permit the installation of a ramp by a veteran who uses a wheelchair due to loss of a limb or other mobility impairment.
Compliance Strategy: Unlike reasonable accommodations, reasonable modifications must be made at the disabled prospect or tenant’s expense. Before granting a request for a reasonable modification, you may require requestors to:
- Provide a description of the proposed modifications;
- Obtain any building permits the work requires; and
- Ensure that the work will be performed in a workmanlike manner that complies with all applicable laws.
However, you may not require requestors to use a particular contractor to do the work.
Rule #7: Comply with Other Laws Protecting Active Servicemembers
While disability protections under fair housing laws typically involve veterans, there are also laws that provide additional rental protections to current members of the military and their families. It’s important that you and your leasing staff and other agents be aware of and take proper steps to comply with these laws, including the so-called federal Servicemembers Civil Relief Act (SCRA).
Context: Laws reflect a society’s values and in the U.S. there’s a general consensus that men and women shouldn’t suffer adverse financial and legal consequences because they choose to serve their country. Congress enacted the SCRA (which used to be called the Soldiers’ and Sailors’ Civil Relief Act) to give those entering active service special leeway from their civilian obligations so they can concentrate on their military responsibilities.
The SCRA applies to rental agreements, security deposits, prepaid rent, eviction, mortgage foreclosure and interest rates, as well as non-real estate matters including automobile leases, installment contracts, credit card interest rates, life insurance, health insurance, income tax payments, and judicial proceedings.
For landlords, the key provisions of the SCRA are the ones allowing servicemembers to terminate their lease or rental agreement, without penalty, before or during their active service. You’re not allowed to evict a servicemember for nonpayment of rent unless you get a special court order. Courts may also postpone an eviction proceeding against a servicemember for three months or longer if the servicemember shows that military service impaired their ability to pay rent. In some cases, courts can reduce the amount of rent the servicemember owes. In addition to highly unfavorable PR, violating the SCRA may result in civil penalties, damages, and even criminal liability.
Example: The U.S. Department of Justice (DOJ) sued a Virginia-based property management company for allegedly obtaining at least 152 default judgments against 127 SCRA-protected servicemembers over an 11-year period starting in 2006. According to the complaint, the company didn’t tell the court that the defendant it was suing was an active servicemember and, in some cases, falsely represented that the defendant was a civilian. The DOJ also accused the company of charging servicemembers illegal fees for terminating their leases early so they could comply with military orders. Rather than risk a trial, the company agreed to settle the case for $1.59 million, at the time a record for an SCRA settlement involving a landlord or property manager [PRG Real Estate Management, DOJ Press Release, March 15, 2019].
Servicemembers the SCRA Covers
The SCRA applies to:
- Active-duty members of the Army, Marine Corps, Navy, Air Force, and Coast Guard;
- Members of the Reserve component who are called up for active duty;
- Members of the National Guard who are mobilized under federal orders for more than 30 consecutive days; and
- Active-duty commissioned officers of the Public Health Service or National Oceanic and Atmospheric Administration.
SCRA rights may also be exercised by anyone holding a valid power of attorney for the servicemember and in some cases by a servicemember’s dependents.
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|November 2023 Coach's Quiz|