How Communities Fight—and Win—Disability Discrimination Claims in Court
In this lesson, the Coach highlights several recent court decisions that show how communities can fight court battles to defend themselves against disability discrimination claims under fair housing law.
More than half of all fair housing complaints are for disability discrimination, many involving disputes over reasonable accommodation requests. The FHA requires communities to make reasonable accommodations in policies or services when needed by an individual with a disability to have an equal opportunity to use and enjoy his or her home.
In this lesson, we’ll review the law governing reasonable accommodation requests. Then we’ll summarize what happened in five recent cases and what the court decided. Reviewing how these communities successfully defended themselves in court can help you avoid or defend against disability discrimination complaints at your community. Finally, you can take the Coach’s Quiz to see how much you’ve learned.
WHAT DOES THE LAW SAY?
The Fair Housing Act (FHA) bans housing discrimination based on disability, so it’s unlawful to discriminate against applicants and residents because of their disability—or the disability of anyone associated with them.
Compliance with fair housing law requires more than merely refraining from discrimination against individuals with disabilities. The FHA requires communities to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford an individual with disabilities an equal opportunity to use and enjoy the dwelling.
That doesn’t require communities to approve all requests for accommodations. The law permits you to deny a request if there’s no disability-related need for the accommodation. The same holds true if the requested accommodation is unreasonable because it would impose an undue financial or administrative burden on your community or result in a fundamental alteration of your operations.
To hold communities accountable for failing to grant a reasonable accommodation request, an applicant or resident prove that:
The request for a reasonable accommodation was made by or on behalf of an individual with a disability. 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. The law covers a wide range of impairments, such as orthopedic, visual, speech, and hearing impairments; heart and lung conditions; and mental illness. An impairment substantially limits one or more major life activities when it has a significant impact on activities that are central to daily life, such as seeing, hearing, walking, or caring for oneself.
The community knew—or was aware of—the disability. Some disabilities, like visual or hearing impairments, are obvious or apparent, while other disabilities show little outward sign of impairment. But it doesn’t matter as far as the law is concerned: Communities must consider a reasonable accommodation request by an individual with a disability, whether it’s physical or mental, obvious or not. If the request is for someone who doesn’t have an obvious or apparent disability, then the law permits you to request disability-related documentation to verify that he qualifies under the FHA’s definition of disability.
The request was necessary. The requested accommodation must be necessary—one that allows an individual with a disability an equal opportunity to enjoy the housing. In general, that means that there must be an identifiable connection between the requested accommodation and the individual’s disability. Sometimes, it’s easy to see the connection—for example, when a resident with a severe mobility impairment asks for an assigned accessible parking space as an exception to a community’s general parking policy. When the connection isn’t obvious you may request documentation that verifies the connection between a resident’s disability and the need for the requested accommodation.
The request was reasonable. The law doesn’t require you to grant 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 your community or fundamentally change your operations. Even when a request is unreasonable, federal guidelines say that communities should engage in an “interactive process” by talking to the resident about alternative accommodations that would effectively meet his disability-related needs without imposing an undue burden on the community.
The community denied the request. That’s easy to prove in some cases—if, for example, the community refuses to make any exceptions to its policies or formally denies a particular resident’s request. In some cases, however, there are disputes over whether a community refused the request, often in cases where the community requests documentation about the resident’s disability or need for the requested accommodation. Even when you’re allowed to request documentation to assess a reasonable accommodation request, you can’t use the process to stonewall or discourage the resident from pursuing the request. An unreasonable delay in responding to a reasonable accommodation request is the same as a denial under fair housing law.
Does Community Have to Allow Resident to Keep Dangerous Assistance Animal?
Not if there’s proof that the animal presents a direct threat to other residents, according to a recent ruling by the federal court in Nevada.
WHAT HAPPENED: The resident, who had a disability, lived with his service dog, which the community accommodated for several months without incident. When that dog died, the resident got a new service dog, which was the same breed and which he called by the same name.
The community presented evidence that the new dog possessed an aggressive temperament and caused problems at the community. The dog lunged at residents, chased children and dogs, and bit at least one other dog. Several residents were afraid of the resident’s dog due to its aggressive demeanor. The community claimed that the resident repeatedly ignored requests to muzzle the dog.
The community initiated summary eviction proceedings, allegedly because of the resident’s failure to control the dog. The state court ordered his eviction.
The resident went to federal court to prevent his eviction, accusing the community of harassing and threatening him because of his disability and because he had a service dog. Based on his allegations that the community was evicting him because of his service dog, the court granted an order temporarily preventing his eviction pending a hearing, but it ordered him to muzzle the dog until then. Despite his representations that he would muzzle the dog, the resident admittedly failed to comply with the court order by taking the dog outside without a muzzle.
DECISION: In favor of the community.
REASONING: The court denied the resident’s request for a permanent injunction to prevent the community from evicting him. According to the court, the community had initiated the eviction proceedings because of his failure to control the new dog—not because of his disability status or his use of a service dog generally.
The law requires housing providers to make reasonable accommodations to afford a disabled person an equal opportunity to use and enjoy the home. In most circumstances, permitting use of a service dog in a residence was a reasonable accommodation. In this case, however, it wasn’t reasonable to require the community to accommodate a service dog that displayed an aggressive and dangerous behavior toward the community’s other residents. Because the temporary order banning his eviction had expired, there was no protective order from the federal court to prevent the community from evicting the resident.
- Borenstein v. Nellis Gardens, Nevada, May 2019
Case Notes: Under fair housing law, communities may deny a request for an assistance animal if it would pose a direct threat to the health and safety of others—or would cause substantial physical damage to the property of others—which can’t be reduced or eliminated by another reasonable accommodation.
REASONABLE ACCOMMODATION—NOISE COMPLAINTS
Does Community Have to Grant Resident’s Request for Soundproof Unit?
No, according to a recent ruling by the federal court in Alabama.
WHAT HAPPENED: The resident filed a lawsuit alleging fair housing violations against an Alabama community only 19 days after moving in. Summarizing noise complaints in federal lawsuits that spanned three prior apartment complexes in North Carolina, the resident alleged that she had been harassed and criminally tortured by noise since 2006; that she was controlled by neighbors through noise; that noise caused her to fall in 2017 resulting in injuries; and that noise caused her to lose her job and flee her previous apartment in North Carolina. In her complaint against the Alabama community, she alleged that its employees promised her a quiet, soundproof unit and failed to accommodate her disability.
The community asked the court to dismiss the case, arguing that the resident failed to prove that she had a disability or that it failed to accommodate her because of a disability.
DECISION: In favor of the community.
REASONING: The court granted the community’s request to dismiss the case because the resident didn’t allege any facts that she had a disability under fair housing law. Likewise, she failed to allege that she had a special disability involving sensitivity to noise.
The particular noises she described were caused by either the acts of neighbors or passing traffic. Her assertion wasn’t a noise sensitivity or disability, but that the alleged noises would be egregious or tortuous to anyone regardless of disability. The lease itself didn’t provide any special provisions regarding disabilities or accommodations claimed by the resident.
Even if she had a covered disability, the resident didn’t provide any facts in her complaint as to what the community did or failed to do to accommodate her disability within the short window of 19 days from the day that she moved in to the day she filed the complaint. She claimed that when she voiced her concerns, the community gave her several options: Move out in 30 days or wait six months for another unit to become available. By her own admission, the community didn’t refuse to accommodate her concerns.
Of course, the resident wanted a soundproof unit and the only solution would be to discontinue living in an apartment since no apartment owner would be able to accommodate such a request. Nevertheless, there were no facts alleged that the resident gave the community an opportunity to conduct a meaningful review to determine whether the requested accommodation, if any, was required under fair housing law.
- Poursaied v. Reserve at Research Park LLC, Alabama, May 2019
Case Notes: Fair housing law doesn’t require housing providers to immediately grant all requests for accommodation. Once a housing provider knows of an individual’s request for an accommodation, the provider has an opportunity to make a final decision, which necessarily includes the ability to conduct a meaningful review to determine whether the law requires the requested accommodation.
REASONABLE ACCOMMODATION—NO-SMOKING RULES
Does Community Have to Ban Neighbors from Smoking in Their Units to Accommodate Resident’s Asthma?
No, according to a recent ruling by West Virginia’s highest court.
WHAT HAPPENED: The resident leased a unit at a West Virginia community, which was subsidized by HUD. According to the resident’s only witness, the property manager, the resident lived in a building that banned smoking in the common areas, such as lobbies, but permitted smoking in units.
The resident, who had asthma, complained to the property manager that cigarette smoke was drifting into his unit. The property manager said she investigated his complaints but didn’t detect the smell of cigarette smoke inside his unit or the hallways. Asked about a specific incident when the resident asked her to come to his unit, the property manager said she couldn’t recall whether she could smell cigarette smoke in the hallway on that occasion.
The resident submitted a reasonable accommodation request along with medical documentation of his asthma. The property manager said that the request was approved, and that the community offered to relocate him to a different unit as a reasonable accommodation. However, the property manager said that they couldn’t guarantee that he wouldn’t be exposed to cigarette smoke since other residents were permitted to smoke in their units.
The resident sued the community, arguing that relocation to a different unit wasn’t a reasonable accommodation under fair housing law. After the resident finished presenting his case at trial, the court granted the community’s request for judgment in its favor. The resident appealed.
DECISION: In favor of the community.
REASONING: The court affirmed, ruling that the resident didn’t present any evidence that the community violated fair housing law.
Only accommodations that were reasonable were required under federal fair housing law. Here, the resident wanted a guarantee that he would never be exposed to cigarette smoke. The community offered to relocate him to a different unit, but it couldn’t guarantee that he wouldn’t be exposed to cigarette smoke because he lived in a building where residents were permitted to smoke in their units.
The resident argued that in certain circumstances, fair housing law required landlords to modify their policies. But the requirement of reasonable accommodation didn’t entail an obligation to do everything humanly possible to accommodate a disabled resident—the cost to the community and the benefit to the resident deserved consideration as well. While the cost to the community would involve upsetting the settled expectations of the other residents, there was no proof that changing the policy would benefit the resident. The resident’s only witness, the property manager, never testified that she smelled cigarette smoke in the hallways. While the community was willing to relocate him to a different unit, there was no reason to change the policy that allowed residents to smoke in their units when the building’s common areas were already maintained as smoke-free zones.
- Taccino v. Forest City Residential Management, West Virginia, June 2019
Case Notes: There has been a trend toward smoke-free housing policies, which recently got a big boost when HUD issued a final rule requiring all public housing agencies to go smoke-free by August 2018. HUD’s final rule requires public housing authorities to implement smoke-free policies that ban the use of prohibited tobacco products in all public housing living units, indoor common areas in public housing, and in PHA administrative office buildings. Though the new rule applies only to public housing, HUD strongly encourages all multifamily housing owners and agents to implement smoke-free policies in all their properties. For more information, visit HUD’s website at https://www.hud.gov/program_offices/healthy_homes/smokefree.
Is There a Limit on How Much Community Must Do to Satisfy Resident’s Noise Complaints About Landscaping Equipment?
Yes, according to a ruling by the federal court in Michigan.
WHAT HAPPENED: The resident filed the latest in a series of complaints in a decades-old dispute with the community where he lived. The resident, a disabled man who claimed he was entirely homebound, suffered from a condition that made him extremely sensitive to noise. In his complaint, he alleged that the community had continually failed to implement his requests for reasonable accommodations or to comply with a 2015 settlement that restricted the use of landscaping equipment near his condo. He also accused the community of denying his reasonable accommodation request concerning an alleged fly infestation.
The community asked the court for judgment without a trial.
DECISION: In favor of the community.
REASONING: The community wasn’t liable for violating fair housing law relating to the resident’s accommodation requests involving the landscaping equipment or the alleged fly infestation.
The resident couldn’t sue the community again for denying his reasonable accommodation requests related to the landscaping equipment. That’s because he had previously sued the community over its use of landscaping equipment, which resulted in the 2015 settlement agreement. Now, dissatisfied with those terms, he wanted to impose additional restrictions of even greater severity. But he failed to allege that his request for these additional accommodations stems from new developments with his disability or changed circumstances—if that were the case, the law wouldn’t bar his claims. It was both unseemly and futile for him to seek the additional accommodations related to the landscaping equipment now.
The community wasn’t liable for denying reasonable accommodation requests concerning the alleged fly infestation because it didn’t have anything to do with his disabilities—mobility impairments and extreme noise sensitivity. All residents, not only disabled individuals, would be negatively affected by such an alleged infestation. The need for extermination didn’t arise from his disabilities, so fair housing law didn’t apply to these claims.
- Gleason v. Woods Condominium Association, Michigan, March 2019.
Case Notes: Although the resident couldn’t pursue federal fair housing claims related to the community’s use of landscaping equipment, the court ruled that he could sue the community in state court for its alleged breach of the 2015 settlement agreement.
REASONABLE ACCOMMODATION—MEDICAL MARIJUANA
Can Community Evict Resident for Marijuana-Related Lease Violations?
Yes, according to a recent ruling by Maine’s highest court.
WHAT HAPPENED: After living at a federally funded affordable housing community for several years, a resident received an eviction notice, stating that his use and possession of marijuana violated the terms of the lease that prohibited unlawful activity in the unit because “medical marijuana is illegal under federal law even if it is permitted under state law.”
The resident responded by submitting a reasonable accommodation request to use marijuana for medical purposes. The community halted the eviction process so that it could gather information and review the request.
The community ultimately denied the accommodation request, pointing out that under federal law, marijuana is a controlled substance, and possession or manufacture of marijuana is a violation of federal law. The community explained that it was an affordable housing complex that received federal funds and was subject to oversight and frequent audits by the federal government. In its view, a request for accommodation that results in a violation of federal law was unreasonable and exposed the community to potential liability or noncompliance with federal regulations.
The community issued a 30-day notice that it was terminating the resident’s lease. The notice stated that the resident had violated the terms of the lease when he used the unit for unlawful purposes or engaged in unlawful activities in the unit by growing and possessing marijuana; refused access to the bedroom that was used as a marijuana grow room; installed a lock on the bedroom without permission; threatened physical harm to staff seeking to inspect the bedroom; smoked marijuana in his unit in violation of a no-smoking policy; and grew and possessed marijuana in violation of a zero-tolerance drug policy.
After a series of proceedings, the court ordered the resident’s eviction, finding that there was credible evidence of more than one lease violation, but no evidence of retaliation or of discriminatory practices by the landlord. The resident appealed.
DECISION: In favor of the community.
REASONING: Maine’s highest court affirmed, ruling that the community was entitled to terminate the resident’s tenancy for “material noncompliance” with the terms of the lease.
The resident violated his lease in three ways that were independent from his possession of marijuana. First, he had denied access to his unit in violation of his lease, which authorized the landlord “to enter the unit for the purpose of making reasonable repairs and periodic inspections.” Employees of the property management company testified that they had been refused entry to the unit “several times,” that inspectors had been denied access to a bedroom the resident used as a grow room, and that one inspector threatened to stop a required inspection because of the resident’s lack of cooperation.
Second, the resident had installed a lock on his grow room in violation of the lease, which prohibited “[a]ny alteration, addition, and/or replacement of a lock…without written consent of Management.”
Finally, the resident had intimidated staff in violation of the lease, which prohibited acts “of intimidation, retaliation, harassment, verbal abuse, physical threat of violence or social misconduct of, or to, any employee.” The management company employees testified that they felt intimidated by him because of a threatening voicemail he left for one of them and a sign on his grow room door that said, “No one may enter this room!...Trespassers will be shot! Survivors shot again!”
Because these violations, standing alone, justified termination of his lease, the court said it didn’t have to analyze whether federal law has a preemptive effect on Maine’s medical marijuana law.
- Sherwood Assocs. LP v. Jackson, Maine, January 2019
Update: After exhausting his appeals in state court, the resident filed a complaint in federal court in an attempt to stop his eviction. The court dismissed his complaint, ruling that it had no power to review the final decision of the state’s highest court [Sherwood Associates, L.P. v. Jackson, Maine, May 2019].
- Fair Housing Act: 42 USC §3601 et seq.
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|July 2019 Coach's Quiz|