How to Comply with Fair Housing Law When Dealing with People Who Are Deaf or Hard of Hearing
Effective communications with prospects, applicants, and residents are an essential aspect of all community operations. It’s especially important in your leasing office where miscommunications can undermine your efforts to attract qualified applicants to fill vacancies. Communication problems aren’t just bad for your bottom line: Misunderstandings about leasing opportunities or rental terms often lead to suspicions of discriminatory motives, triggering a fair housing complaint.
Ensuring effective communications is a key strategy to avoid fair housing problems when dealing with people who are deaf or hard of hearing. The challenge is that the disability provisions cover a broad array of people—with total or partial hearing loss—who use a variety of communication tools and techniques. Consequently, it may be necessary to make adjustments in the way you talk on the phone or meet with prospects to ensure that you understand—and are understood by—people who are deaf or hard of hearing.
It’s also important to demonstrate cultural sensitivity. The last half century has seen the rise in Deaf culture, which recognizes individuals in the Deaf community as a linguistic and culturally diverse group who use a separate and distinct language, American Sign Language (ASL). Treating people who are deaf or hard of hearing with professionalism and respect for cultural differences will go a long way to further your fair housing goals.
In this month’s lesson, we’ll suggest five rules for facilitating communications with individuals who are deaf or hard of hearing, and explain how to handle any reasonable accommodation or modification requests. Then you can take the COACH’s Quiz to see how much you’ve learned.
WHAT DOES THE LAW SAY?
Under the Fair Housing Act (FHA), it’s unlawful to discriminate against prospects, applicants, or residents—or anyone associated with them—who has a disability. The law broadly defines “disability” as a physical or mental impairment that substantially limits one or more major life activities.
Fair housing law classifies hearing impairments as disabilities when they substantially limit—that is, prevent or severely restrict—major life activities such as hearing or communicating. The law’s disability provisions apply to people who are profoundly deaf as well as those with various hearing impairments caused by accident, injury, illness, or the aging process. Though hard numbers are difficult to come by, it includes about 9 million people who identify as deaf or hard of hearing, about a million of whom are functionally deaf.
Since hearing loss is one of the most common conditions affecting older adults, those numbers are likely to grow as the population ages. Currently, government officials note that about 36 million Americans report some degree of hearing loss, which affects one in three people older than 60 and half of those older than 85.
Most of those currently in their 60s are baby boomers. Surprisingly, exposure to loud rock and roll music didn’t take the toll on their hearing to the extent expected. Recently, University of Wisconsin researchers reported that baby boomers are aging with much better hearing than their parents had at the same age. Nevertheless, researchers estimate that by 2030, some 51 million Americans will have a hearing impairment—many of whom may qualify for protection under fair housing law.
Communities may not deny or otherwise make housing unavailable to individuals with disabilities—or discriminate against them in the terms, conditions, and privileges of the tenancy. That means it’s unlawful to turn away prospects who are deaf or hard of hearing or to subject them to adverse treatment because of the techniques, tools, or language used in communications about rental housing.
Fair housing compliance also requires consideration of requests for reasonable accommodations or modifications when necessary to ensure that residents who are deaf or hard of hearing can fully use and enjoy the community. In general, reasonable accommodations are exceptions or adjustments to a rule, policy, practice, or service that may be necessary for a person with a disability to have equal opportunity to use and enjoy a dwelling. For example, housing providers must consider a request for an exception to policies banning or restricting pets to allow a resident who is deaf or hard of hearing to keep an assistance animal.
Reasonable modifications are structural changes to the interior of units as well as public and common use areas. The law requires owners to permit individuals with disabilities, at their expense, to make reasonable modifications to the housing if necessary to afford them full enjoyment of the premises. Examples include installation of smoke detectors and other safety devices that use strobe lights or other visual cues in place of alarms or buzzers.
It’s unlawful to discriminate against individuals who are deaf or hard of hearing simply because they may need reasonable accommodations or modifications to enable them to fully use and enjoy the property.
Example: In 2009, a New York community owner agreed to pay $7,500 to settle allegations that he unlawfully denied housing to a prospect who was deaf, according to the Fair Housing Justice Center (FHJC). The complaint alleged that, after viewing the unit with his case manager, the prospect wanted to rent it but said he needed a visual alarm to alert him to visitors. Allegedly, the owner responded by saying that he wouldn’t rent the unit to him because of “problems” with a previous deaf tenant and that he would not install a visual alarm. The lawsuit was filed after testing by the FHJC, which reported that the parties reached a settlement that included injunctive relief and $7,500 in damages [King v. Meir Weiss and 2129 Cortelyou Road LLC, 2009].
5 RULES FOR COMPLYING WITH FAIR HOUSING LAW
WHEN DEALING WITH PEOPLE WHO ARE DEAF OR HARD OF HEARING
Rule #1: Welcome Contacts from Prospects Who Are Deaf or Hard of Hearing
Don’t discriminate against deaf or hard-of-hearing prospects—regardless of whether they contact you by telephone or newer video, text, and online systems.
For many years, people who are deaf or hard of hearing have communicated by telephone using TTY devices (also known as TDD or text telephones). A TTY machine consists of a typewriter keyboard that displays typed conversations onto a readout panel or printed on paper. If both parties have a TTY device, they can communicate by typing messages to each other directly.
The law generally doesn’t require rental offices in conventional housing communities to get their own TTY/TTD devices, although some fair housing advocates recommend that communities consider purchasing the devices to facilitate communications with prospects who are deaf or hard of hearing.
Otherwise, you should be prepared to accept calls from TTY devices through the national toll-free telecommunications relay service. In essence, the system uses a relay operator as a go-between: the TTY user types input into the device and the relay operator reads the message to the person receiving the call, and then types that person’s response back to the TTY user.
Calls through the relay system can take extra time, which can result in discriminatory treatment against deaf or hard-of-hearing prospects. A 2005 HUD-funded study found that housing providers in Chicago refused to accept TTY calls in one out of four calls. Even when their calls were accepted, TTY users received significantly less information about the application process and fewer opportunities to follow-up than comparable hearing customers making telephone inquiries.
A more recent study found fewer outright refusals to accept TTY calls, but continued discrimination against those using TTY relay systems. In August 2012, the Equal Rights Center (ERC) reported that 45 percent of deaf or hard-of-hearing individuals who used TTY relay services received discriminatory treatment while seeking rental housing in the greater Washington, D.C., area. The tests found only one instance in which the housing provider directly refused relay calls, but in others, discriminatory treatment included misrepresenting the availability of units, quoting higher rents, stating more stringent application requirements, or providing none of the follow-up as compared to other applicants.
Some people still rely on TTY machines, but federal experts on deafness and communication disorders say that TTY machines have almost become a thing of the past. Using today’s new electronic communication devices, people can place phone calls through the telecommunications relay service using almost any device with a keypad, such as a laptop or cell phone. Some skip the relay system altogether by communicating via email or text messaging.
Another system uses voice recognition software and an extensive library of video clips depicting American Sign Language to translate a signer’s words into text or computer-generated speech—and to translate spoken words back into sign language or text. Those familiar with the video relay say they are nearly the same as standard telephone calls but without the delays of the traditional TTY and text relay.
Despite the increasing use of new technology, rental providers should still be prepared to handle telephone calls from TTY and other devices using the telecommunications relay system. It’s unlawful to refuse to accept calls via the relay system simply because it seems more cumbersome or takes more time than standard telephone calls.
Example: In October 2012, a federal court refused to reopen a 2002 judgment against a defendant for refusal to accept TTY calls from a deaf prospect in violation of fair housing law. The case involved the operator of a referral service in the New York City room rental market. Allegedly, he listed rooms available only in buildings that were either owner-occupied or had fewer than four units, which are generally exempt from federal fair housing law—though not the ban on discriminatory advertising.
In 1997, a deaf prospect used the relay system to call about an advertised vacancy. Allegedly, the defendant responded that he didn’t service the disabled and when the prospect tried to call back, the defendant swore at him and hung up. According to the court, the defendant later admitted that his company didn’t accept calls from the relay system or do business with disabled people, and that he used profanity to chase them away. After a trial, the court found that the company engaged in outrageous and illegal conduct and awarded punitive damages.
Recently, the defendant asked the court to overturn the ruling, accusing the government of fraud by inducing the prospect to lie about the type of housing he was seeking. The court refused, ruling that it didn’t matter because the evidence showed that the defendant ended the prospect’s call before even speaking with him about the type of housing he was seeking [Space Hunters, Inc. v. U.S., October 2012].
To avoid fair housing problems, it’s also important to give prospects using the relay system the same information about prices, availability, and rental qualifications as provided to prospects making standard telephone calls. Apply your standard follow-up procedures—for example, requesting contact information and contacting prospects to encourage them to rent at the community—regardless of whether the prospect uses the relay system or some other means to communicate with your community.
Rule #2: Ensure Effective Communications During Site Visits
Treat prospects who are deaf or hard of hearing with professional courtesy when they visit your community. Welcome them to your leasing office as you would any other prospect—don’t treat them differently or ask disability-related questions simply because a prospect wears hearing aids or uses American Sign Language to communicate.
Keep in mind some general guidelines to ensure effective communication with prospects who are deaf or hard of hearing. Before speaking to the prospect, for example, make sure you have his attention by standing in his field of vision or waving your hand. Identify yourself and speak directly to the prospect, rather than to a companion or sign language interpreter who may have accompanied him. Ask him how he would prefer to communicate—he may want you to face him directly and to speak slowly if he has a partial hearing loss or he can lip read. If your meeting is interrupted, ask the prospect to excuse you, deal with the matter quickly, and get his attention before you resume your conversation.
Ask if it would be helpful to communicate in writing. Notes passed back and forth are often effective, or the prospect may prefer to use a computer terminal to type questions and receive answers. And give him written copies of your leasing packet, including leasing policies and procedures, application guidelines and forms, and other useful information.
Document that the prospect has received the packet along with the pertinent details of the visit. Take note of anyone whom the prospect has brought along to help with communications and what was discussed, including any requested accommodations or modifications. Good record keeping can help you avoid misunderstandings and protect you from discrimination claims.
Rule #3: Grant Reasonable Requests for Visual Smoke Detectors and Other Safety Devices
Fair housing law requires communities to allow residents who are deaf or hard of hearing, at their expense, to make reasonable modifications to their units or common areas when necessary to allow them to fully use and enjoy the property.
Many of the safety devices required by law or commonly found in rental communities—such as conventional fire alarms, smoke detectors, and carbon monoxide detectors—operate by using alarms, buzzers, and other sounds to alert residents to potential dangers. Other devices that rely on sound are intercoms and buzzers to alert residents to visitors at their door or building entrance.
Since sound-based devices are of little or no use to residents who are deaf or hard of hearing, you may be asked to provide them with alternatives that use strobe lights or other visual alerts. If you generally provide conventional devices to your residents, then you must grant requests from residents who are deaf or hard of hearing for their visual equivalent.
Who has to pay to buy and install these devices? Several of our fair housing experts recommended that communities should pay to buy and install visual smoke detectors if requested by a resident who is deaf or hard of hearing—since the costs of battery-operated devices are minimal and the potential risks of injury from smoke or fire are high. In some states, such as Maryland, the law requires landlords to pay for the installation of visual smoke detectors when requested by a resident who is deaf or hearing impaired.
For other requests, you may wish to consult your attorney, since the answer depends on whether the device is considered an accommodation or a modification. The law generally requires the resident to pay for reasonable modifications—that is, alterations of the physical structure of the unit or common areas—while the community is responsible to pay some costs associated with requests for reasonable accommodations—that is, alteration of rules or services—when necessary for individuals with disabilities.
The HUD/DOJ guidance on reasonable modifications provide this example: Because of a hearing disability, a resident wishes to install a peephole in her door so she can see who’s at the door before she opens it. This is a reasonable modification and must be permitted at the resident’s expense, according to the guidelines.
In another example of a reasonable modification, the guidelines describe how to handle a request by a deaf resident who asks the community to allow him to install extra electrical lines and a cable line so he can use computer equipment that helps him communicate with others. If his disability is known, the guidelines state that the community may not require him to document his disability; however, since the need for the electrical and cable lines may not be apparent, the community may request information that’s necessary to support the disability-related need for the requested modification.
The National Association for the Deaf offers another example of a reasonable modification, stating that deaf tenants are permitted to install visible doorbells—but that they must pay for the modification and may have to restore the property to its original condition later. On the other hand, the association says a community that has an intercom or other coded entry system must provide an equally effective alternative for deaf or hard-of-hearing residents or visitors to enter as a reasonable accommodation.
Rule #4: Grant Disability-Related Requests for Assistance Animals
Whatever your policy on pets, it’s important to remember that assistance animals are not considered pets under fair housing law, so you must consider making an exception when requested to allow an assistance animal as a reasonable accommodation for an individual with a disability.
In particular, a resident who is deaf or hard of hearing may ask for an exception to your pet policies so that she can keep an assistance animal that’s trained to alert her to sounds. According to HUD/DOJ guidelines on reasonable accommodations, fair housing law requires communities to grant a request when there’s an identifiable relationship between the requested accommodation and the individual’s disability. The guidelines list the example of a tenant who’s deaf who requests an exception to a “no pet” policy to allow him to keep a dog in his unit as a reasonable accommodation. The tenant explains that the dog is an assistance animal that will alert him to several sounds, including knocks at the door, sounding of the smoke detector, the telephone ringing, and cars coming into the driveway. The housing provider must make the exception to its “no pets” policy, according to the guidelines.
If the animal qualifies as an assistance animal, you can’t require a resident with a disability to pay extra fees or deposits as a condition of receiving a reasonable accommodation. According to HUD/DOJ guidelines, a housing provider may not require an applicant with a hearing impairment to pay a fee or a security deposit as a condition of allowing her to keep an assistance animal.
Nevertheless, the resident is obligated to prevent the animal from threatening the health or safety of others and is responsible for the animal’s care and maintenance, according to HUD. If the animal causes damage to her unit or common areas, the HUD/DOJ guidelines state that the community may charge the resident for the cost of repairing the damage (or deduct it from the standard security deposit imposed on all residents), if it’s the community’s practice to assess residents for any damage they cause to the premises.
Every year, HUD receives hundreds of complaints about denied housing or equal housing opportunity because they have an assistance animal, according to recent blog post by a HUD official. A frequently asked question is whether assistance animals must have specialized training or perform certain tasks in order to be permitted as a reasonable accommodation.
Much of the confusion may stem from the different rules under the FHA and the Americans With Disabilities Act (ADA) governing the use of animals by individuals with disabilities. In general, the ADA has more stringent rules on the types of service animals allowed in public settings than the FHA’s rules about assistance animals in private homes. The ADA rules allow only dogs (with a limited exception for miniature horses), which have received specialized training to qualify as service animals. In contrast, the FHA rules apply to any type of animal and don’t require assistance animals to have specialized training or to perform certain tasks to be permitted as a reasonable accommodation.
COACH's Tip: The ADA and state laws recognize hearing dogs—also known as signal dogs or hearing guide dogs—as trained service animals that assist deaf or severely hard-of-hearing individuals by responding to specific noises, according to the Massachusetts Commission for the Deaf and Hard of Hearing. When out in public, hearing dogs may be identified by a vest, or orange collar and leash.
Rule #5: Consider Requests to Provide Sign Language Interpreters
Although it doesn’t come up often, there are circumstances in which you could be required to provide a sign language interpreter to facilitate communications with a resident who is deaf or hard of hearing.
Such a request falls under the FHA’s reasonable accommodation requirements, according to fairhousingfirst.org, the HUD-supported Web site that promotes fair housing compliance. The site lists two examples—although neither involves rental housing, they provide some guidance on when you could be required to pay the costs associated with arranging for a sign language interpreter.
One involves a condominium resident who asks for a sign language interpreter to interpret homeowner association meetings that affect her legal or financial obligations; the other is the potential homebuyer in discussions with the builder during construction. In both cases, the Web site suggests that the request should be granted unless it amounts to an undue financial and administrative burden. If it does pose such a burden, then the parties should engage in an interactive process to find a workable alternative strategy that would ensure effective communication.
Applying those examples to rental housing, you could be asked for a sign language interpreter to provide translation services for a deaf resident at important community meetings. Or you could be asked to provide an interpreter at meetings about grievances or disputes involving a resident who is deaf or hard of hearing. Even though it may involve some costs, fair housing law may require you to pay for an interpreter if it’s necessary and doesn’t impose an undue financial and administrative burden.
COACH's Tip: The ADA may require rental offices to provide a sign language interpreter if necessary to communicate with a prospect or applicant who is deaf or hard of hearing. The ADA requires that business offices open to the public take steps necessary to communicate effectively with customers who have hearing disabilities. Such steps could include providing a sign language interpreter if warranted by the nature, length, and complexity of the conversation, according to ADA compliance documents. Last year, for example, the Justice Department settled a complaint with H&R Block, which requires all 11,000 franchises to furnish appropriate auxiliary aids and services, including sign language interpreter services, when necessary to afford a person who is deaf or hard of hearing equal access to the goods, services, and accommodations made available to others.
- Fair Housing Act: 42 USC § 3601 et seq.
- HUD/DOJ Guidance: Reasonable Accommodations Under the Fair Housing Act, http://portal.hud.gov/hudportal/documents/huddoc?id=DOC_7771.pdf.
- HUD/DOJ Guidance: Reasonable Modifications Under the Fair Housing Act, http://portal.hud.gov/hudportal/documents/huddoc?id=DOC_7502.pdf.
Tim Burr: Information Manager, Yarmouth Management, 309 7th Street SE, Washington, DC 20003; (202) 547-3511; TimBurr@YarmouthM.com.
F. Willis Caruso, Esq.: Co-Executive Director, The John Marshall Law School Fair Housing Legal Support Center and Clinic, 321 South Plymouth Court, Suite CBA-800, Chicago, IL 60604; (312) 786-9842; 6Caruso@jmls.edu.
Nadeen W. Green, Esq.: Senior counsel, For Rent Media Solutions™, 294 Interstate N. Pkwy., Ste. 100, Atlanta, GA 30339; (770) 801-2406; email@example.com.
Edward G. Kramer, Esq.: Fair Housing Law Clinic, The Housing Advocates, Inc., Cleveland, OH 44115; (216) 431-7400; KramerE7@aol.com.
D. J. Ryan: Fair Housing Specialist, Director of Client Education, Kimball, Tirey & St. John LLP, 7676 Hazard Center Dr., #450, San Diego, CA 92108; (619) 234-1690; DJ.Ryan@KTS-LAW.com.
Carl York: Vice President, Sentinel Real Estate Corp., 8495 Scenic View Dr., Ste. 106, Fishers, IN 46038; (317) 570-6724; York@sentinelcorp.com.
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|December 2012 Coach's Quiz|