How to Protect Your Community from Disability Discrimination Claims

This month, we’re going to review fair housing rules banning disability discrimination. Understanding these rules—and applying them properly—is key to protecting your community from fair housing trouble.

For years now, disability discrimination has topped the list of reasons that people file fair housing complaints with HUD and its partner agencies. Federal enforcement officials from the Justice Department and HUD, along with their counterparts on the state and local levels, continue to vigorously pursue fair housing complaints alleging discrimination against applicants and residents with disabilities.

Example: In November 2017, the Justice Department sued the owner and manager of an Oklahoma mobile home park for denying a resident’s request for a reasonable accommodation to the park’s “small dog” policy for an emotional support animal. The complaint also alleged that the community retaliated against her by serving her with a notice of eviction after she filed a HUD complaint.

Example: In October 2017, the Justice Department sued the owners and operators of a 134-unit Tennessee community for disability discrimination and retaliation against a resident and members of her household. According to the complaint, the long-term resident lived independently until she had two strokes, which affected her ability to take care of herself and required her to use a cane to walk. The complaint alleged that after recuperating, she moved back to live with family members, but that the community repeatedly denied their requests to assign her an accessible parking space and to remove a concrete parking bumper between the closest parking space and the walkway to their patio. After they filed a fair housing complaint, the community allegedly retaliated against them by initiating eviction proceedings.

Example: In August 2017, HUD announced that the owners and managers of two California apartment complexes agreed to pay $72,000 to resolve allegations of discrimination against a resident who had a medical condition and required a service dog. According to the complaint, the resident was subjected to discriminatory statements and retaliation due to the presence of her assistance animal, including false accusations that the animal was disruptive, that it bit maintenance workers, and that it was not a service animal under California law. HUD reported that its subsequent investigation corroborated the resident’s need for the dog and found no evidence indicating that the animal was disruptive or had bitten anyone.

Meanwhile, HUD continues to focus on disability discrimination by conducting fair housing testing to determine how rental housing providers are treating people with disabilities. In September 2017, HUD released the results of a pilot study, which found that people living with mental illness, and those with intellectual or other developmental disabilities, continue to face significant housing discrimination in the rental housing market. When compared to people without mental disabilities, individuals with mental disabilities received fewer responses to their rental inquiries, were informed of fewer available units, and were less likely to be invited to contact the housing provider. They were also less likely to be invited to tour an available unit, were more likely to be steered to a different unit than the one advertised, and were treated differently depending on their type of disability. The study also found that a large percentage of people with mental disabilities were given a negative response to requests for reasonable accommodations, ranging from outright denials to subtler barriers.

“Today’s study spotlights the types of discrimination people with mental disabilities experience when searching for housing,” HUD Secretary Ben Carson said in a statement. “The findings will not only inform our enforcement efforts, but enable us to identify and remove barriers for those who face housing discrimination. Though nearly 30 years have passed since the Fair Housing Act was expanded to protect individuals with disabilities, we still have work to do to ensure equitable housing opportunities for all.”

In this month’s lesson, we’ll review the general rules forbidding disability discrimination and give you seven rules to follow to help you protect your community from disability discrimination claims. Finally, you can take the Coach’s Quiz to see how much you’ve learned.

WHAT DOES THE LAW SAY?

The federal 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).

Under the FHA, it’s unlawful to exclude or otherwise discriminate against people because they—or someone associated with them, such as a family member—has a disability. Under fair housing law, “disability” means a physical or mental impairment that substantially limits one or more major life activities. The list of impairments broadly includes a wide range of physical and mental conditions, including visual and impairments, heart disease and diabetes, HIV infection, and emotional illnesses. Examples of major life activities include seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, and speaking. In sum, the law protects anyone with a physical or mental impairment that’s serious enough to substantially affect activities of central importance to daily life—even if it isn’t obvious or apparent.

Compliance with fair housing law requires more than merely refraining from discrimination against individuals with disabilities. The law goes further to protect individuals with disabilities 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.

Reasonable accommodations. The law requires communities to make reasonable accommodations to 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 equal opportunity to use and enjoy a dwelling. Common examples include a request to keep an assistance animal in a community with a no-pet policy or a request for a reserved parking spot in a community that doesn’t have assigned parking.

Reasonable modifications. The law requires owners to permit applicants or residents with a disability, at their expense, to make reasonable modifications to the housing if necessary to afford them full enjoyment of the premises. Under the FHA, a “reasonable modification” is a structural change made to existing premises, occupied or to be occupied by a person with a disability, to allow that person full enjoyment of the premises. Communities must consider requests for reasonable modification not only to the interior of a unit, but also to lobbies, main entrances, and other public and common use areas of buildings. Examples include widening doorways to make rooms more accessible for people in wheelchairs, installing grab bars in bathrooms, lowering kitchen cabinets to a height suitable for persons in wheelchairs, adding a ramp to make a primary entrance accessible, or altering a walkway to provide access to a public or common use area.

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.

7 RULES FOR PROTECTING YOUR COMMUNITY

FROM DISABILITY DISCRIMINATION CLAIMS

Rule #1: Don’t Discriminate Against Applicants or Residents for Disability-Related Reasons

Under the FHA, it’s unlawful to deny housing to people, or to treat them less favorably than others, because they or someone associated with them has a disability. 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 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.

Example: In September 2017, the owner and managers of a 41-unit community in California agreed to pay $18,500 to resolve allegations of discrimination against elderly residents with disabilities who relied on support from caregivers. A fair housing organization filed the complaint on behalf of an elderly resident facing eviction after returning from the hospital with support from a part-time caregiver. Allegedly, the owner and property manager said that they didn’t want the “liability” of her remaining in her home, threatened to call the county to have her “removed,” ordered her to move out, and asked invasive questions about the extent of her disabilities. According to the organization’s complaint, its investigation corroborated the resident’s allegations and revealed that testers calling for disabled relatives were told that the complex was for “independent living” and people who “can take care of themselves.”

Example: In August 2017, an Indiana community agreed to an undisclosed settlement to resolve allegations of disability discrimination by denying housing to an applicant because of her elderly mother’s disability. After disclosing her mother’s condition, the woman claimed 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.”

Nevertheless, fair housing law doesn’t require you to accept an applicant with a disability “whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.” For example, HUD says a community may not reject an applicant merely because his prior address is a treatment facility for alcoholism, because doing so would be based on a generalized stereotype related to a disability rather than on an individualized assessment of any threat he may pose to property or other residents based on reliable, objective evidence about his recent past conduct. Your community may, however, check the applicant’s references to the same extent and manner as you would check references of all applicants. If the reference check reveals objective evidence that the applicant posed a direct threat to others in the recent past and the threat hasn’t been eliminated, you may reject the applicant based on direct threat.

Rule #2: Don’t Ask the Wrong Questions

When screening applicants, be careful that you don’t cross the line by asking unlawful disability-related questions. Under the FHA, it’s unlawful to ask applicants about whether they or someone associated with them has a disability. Likewise, you may not ask questions about the nature or severity of a disability.

You may ask about an applicant’s ability to meet the requirements of ownership or tenancy—provided that you ask all applicants, regardless of disability, the same thing. You also may ask whether an applicant is qualified either for a dwelling available only to individuals with disabilities or for a priority available only to such individuals.

Federal law also allows you to ask questions concerning current illegal drug use or convictions for the illegal manufacture or distribution of a controlled substance. Although the law protects applicants recovering from past drug addiction, it specifically excludes individuals who are currently using illegal drugs.

Rule #3: Follow Standard Procedures to Handle Reasonable Accommodation Requests

The FHA requires communities to make reasonable accommodations for applicants and residents with disabilities when doing so is necessary to give them an equal opportunity to use and enjoy their dwelling. Requests for reasonable accommodations often involve assistance animals or parking, but communities may face a wide range of disability-related accommodation requests for exceptions to rules and policies. Examples include requests for live-in aides, transfers to different units, early lease termination, and allowing a cosigner on the lease. In general, communities are responsible for paying the costs associated with a reasonable accommodation as long as it doesn’t pose an undue financial and administrative burden.

Under the FHA, a resident or applicant makes a reasonable accommodation request whenever he makes it clear to the housing provider that he is requesting an exception, change, or adjustment to a rule, policy, practice, or rule because of a disability. HUD guidelines state that an applicant isn’t entitled to a reasonable accommodation unless he asks for one, but the law doesn’t require that the request be made in a particular manner or at a particular time. Furthermore, the request need not come directly from the person with the disability; the request may be made by a family member or someone acting on his behalf.

Although the law doesn’t require communities to adopt any formal procedures for reasonable accommodation requests, it’s a good idea to have such procedures in place because disputes concerning accommodation requests so often lead to fair housing complaints. Nevertheless, you can’t refuse to consider a reasonable accommodation request just because the applicant or resident won’t follow your formal procedures. According to HUD, a community must give appropriate consideration to a reasonable accommodation request even if the person making the request doesn’t use your preferred forms or procedures.

Coach’s Tip: Once you receive notice of a reasonable accommodation request, fair housing law requires you to provide a prompt response. Under HUD guidelines, an undue delay in responding to a request may be deemed a failure to provide a reasonable accommodation.

Rule #4: Don’t Impose Conditions for Granting Reasonable Accommodation Requests

It’s unlawful to require individuals with disabilities to pay extra fees or deposits as a condition of receiving a requested accommodation, according to federal guidelines. For example, you can’t 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 guidelines permit communities to 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.

And don’t impose extra conditions, such as payment of a pet deposit or extra monthly pet fee, as a condition of allowing an individual with a disability to keep an assistance animal. Even if you generally require pet owners to pay a pet deposit, you could face a HUD complaint—or a lawsuit—if you require applicants or residents to pay to pet deposit for an assistance animal.

Example: In June 2017, the owner and manager of four Nevada rental communities agreed to pay $20,000 to resolve a HUD complaint, which alleged housing discrimination against prospective tenants with disabilities who required assistance animals. A fair housing organization filed the HUD complaints, accusing the communities of discriminating against prospective tenants who required assistance animals by requiring applicants who required emotional support animals to pay a pet deposit fee.

Although you can’t charge extra fees up front to cover potential property damage by an assistance animal, you have recourse against its owner if the animal actually causes damage to the unit or common areas. HUD says you may require a resident to cover the cost of repairs for damage the animal causes to the resident’s unit or the common areas, reasonable wear and tear excepted, if it’s your policy to assess residents for any damage that they cause to the premises. Allowing for reasonable wear and tear, you may assess the costs against the standard security deposit charged to all residents, regardless of disability.

Rule #5: Follow the Rules on Verifying Disability After Receiving a Reasonable Accommodation Request

Although fair housing law generally forbids housing providers from asking applicants or residents for disability-related information, there’s an exception that applies under some circumstances when they request a disability-related reasonable accommodation due to a disability. To avoid fair housing trouble, however, it’s essential to understand when and how you can ask for disability-related information from applicants or residents who request reasonable accommodations.

Example: In December 2017, the owner and property manager of a California community agreed to pay $11,000 to resolve a HUD complaint alleging disability discrimination against a resident with a mobility impairment. According to her complaint, the resident requested to have a live-in aide and a key to a locked gate near her unit to make it easier for her to come and go. In both instances, she said that the owner and property manager asked her intrusive questions about her disability, challenged whether she really had a disability, asserted that the development was for individuals who could live independently, and ultimately denied her requests.

“Residents with disabilities have the right to reasonable accommodations that allow them to use and enjoy their home, without unnecessary and invasive questioning,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD will continue to work with housing providers to ensure they meet their obligation to comply with national fair housing laws.”

Under fair housing law, you may NOT ask for more information when the resident’s request is for a reasonable accommodation that’s clearly related to an obvious or known disability, such as a request for an assigned parking space near the building entrance from an applicant with an obvious mobility impairment. Because both the disability and the disability-related need for the accommodation are both readily apparent, you can’t require him to produce documentation to verify his need for the parking space.

That doesn’t mean you can’t EVER ask people with obvious disabilities for additional documentation. Federal guidelines permit you to request additional information to evaluate an accommodation request from an applicant with a known or obvious disability if the need for the accommodation isn’t readily apparent. If, for example, a resident in a wheelchair requests an exception to the “no pets” policy, you may ask for information about the disability-related need for the animal.

Similarly, you may request information when a request for reasonable accommodation comes from an applicant or resident whose disability isn’t obvious. HUD guidelines allow communities to request reliable disability-related information that is:

·         Necessary to verify that he meets the FHA’s definition of “disability” (that is, has a physical or mental impairment that substantially limits a major life activity);

·         Describes the needed accommodation; and

·         Shows the relationship between the person’s disability and the need for the requested accommodation.

The type and source of documentation that may be required to verify disability depends on the circumstances. Verification may come from an applicant himself, for example, with proof that an individual under age 65 receives Supplemental Security Income or Social Security Disability benefits or “a credible statement by the individual,” according to federal guidelines. A doctor or a medical professional, peer support group, or reliable third party in a position to know about the individual’s disability may also provide verification of a disability. In most cases, the guidelines state that an individual’s medical records or detailed information about the nature of a person’s disability are not necessary to verify a disability.

Once it has been established that the applicant meets the FHA’s definition of “disability,” the community may seek information necessary to evaluate whether the requested accommodation is needed because of a disability. The information must be kept confidential and may not be shared with others (absent disclosure required by law) unless they need it to evaluate the accommodation request.

Editor’s Note: The Coach recently hosted a webinar reviewing fair housing rules governing when and how to verify disability after receiving a request for a reasonable accommodation. A recording of the webinar, “When and How to Verify Disability After Receiving an Accommodation Request,” is available on demand here and at www.VendomeRealEstateMedia.com.

Rule #6: Evaluate Alternatives When Requested Accommodation Is Unreasonable

The law doesn’t require you to make exceptions to your rules for an individual with a disability when the requested accommodation is unreasonable. But that doesn’t mean you may reject the request simply because it’s inconvenient or might involve some expense, because the term “unreasonable” has a specific meaning under fair housing law. According to HUD, an accommodation is unreasonable when:

·         It would impose an undue financial and administrative burden on the community; or

·         It would fundamentally alter the nature of the community’s operations.

Under HUD guidelines, the determination of undue financial and administrative burden must be made on a case-by-case basis involving various factors, such as the cost of the requested accommodation, the financial resources of the community, the benefits that the accommodation would provide to the requester, and the availability of alternative accommodations that would effectively meet the requester’s disability-related needs.

If you believe a request is unreasonable because it either requires fundamental alterations of your operations or imposes an undue financial and administrative burden, then it’s a good idea to suggest an alternative accommodation that would effectively address the individual’s disability-related need.

HUD suggests that the community and the individual communities engage in an “interactive process” to discuss the disability-related need for the request as well as possible alternatives. If the parties fail to resolve the matter through the interactive process, it will be considered a decision to deny the requested accommodation, says HUD.

Coach’s Tip: Before denying what you believe to be an unreasonable accommodation request, it’s best to get legal advice. Since disputes concerning accommodation requests so frequently result in fair housing complaints, your attorney may be able to help you craft an appropriate response in such circumstances.

Rule #7: Follow Standard Procedures to Handle Requests for Reasonable Modifications

Another potential source of fair housing trouble stems from requests for modifications from current or prospective residents with disabilities. A request for reasonable modification may be made at any time during the tenancy, and it may include structural changes to interiors and exteriors of units and to common and public use areas. While housing providers must permit the modification, the resident is generally responsible for paying the cost of the modification.

When there’s a clear connection between an individual’s disability and the requested modification, then you must grant the request. Federal guidelines offer an example: If a resident whose arthritis impairs use of her hands and causes her substantial difficulty in using doorknobs wishes to replace the doorknobs with levers, then the community must grant her request because there is an identifiable relationship between the disability and the requested modification.

If either the disability or the disability-related need for the requested modification isn’t readily apparent, then you may request reliable disability-related information to verify that the individual meets the FHA’s definition of “disability” and has a disability-related need for the modification.

Before granting a request for a reasonable modification, the community may require a description of the proposed modifications. The community may also require the resident to obtain any building permits and that the work be performed in a workmanlike manner. You may not insist that a particular contractor perform the work.

Under some circumstances, communities may require residents to restore the interior of their units—but not areas outside their units—at the end of their tenancies to the condition that existed prior to the modification, reasonable wear and tear excepted. According to federal guidelines, the resident is obligated to restore portions of the interior only where “it is reasonable to do so,” and where the community has requested the restoration. The resident cannot be required to restore the modifications to their prior state if the modifications don’t affect the housing provider’s or subsequent tenant’s use or enjoyment of the premises.

The guidelines warn communities against imposing additional conditions—such as requiring the resident to obtain additional insurance or pay a higher security deposit—before granting a modification request. Nevertheless, a resident may be required to deposit money into an interest-bearing account to ensure that funds are available to restore the interior of a dwelling to its previous state.

Editor’s Note: Though the FHA generally requires residents of conventional communities to pay the costs associated with reasonable modifications, housing providers that receive federal financial assistance are also subject to the requirements of Section 504 of the Rehabilitation Act of l973, which obligates housing providers to make and pay for structural changes to facilities, if needed as a reasonable accommodation for applicants and tenants with disabilities, unless doing so poses an undue financial and administrative burden.