Reasonable vs. Unreasonable Accommodation Requests: How to Tell the Difference
In this Special Issue of Fair Housing Coach, we’re presenting highlights from the Coach’s June 2018 webinar on handling reasonable accommodation requests.
During the webinar, fair housing expert Douglas D. Chasick reviewed communities’ obligations to provide reasonable accommodations under fair housing law and discussed how to tell the difference between reasonable vs. unreasonable accommodation requests. There’s a lot of confusion about exactly what’s required to be in compliance with fair housing law, Chasick said, which often leads to costly legal disputes.
Example: The owners and managers of two California apartment complexes recently agreed to pay $72,000 to resolve allegations of discrimination against a resident with disabilities who required an assistance animal. The complaint alleged that the resident, who had lived at the property for more than 15 years, 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 wasn’t a service animal under California law.
In this lesson, we’ll review the law and present highlights from Chasick’s presentation on how to avoid fair housing trouble when dealing with reasonable accommodation requests. At the end of the lesson, you can take the Coach’s Quiz to see how much you’ve learned.
Coach’s Tip: To download a recording of the webinar, “Reasonable vs. Unreasonable Accommodation Requests: How to Tell the Difference,” click here.
WHAT DOES THE LAW SAY?
The Fair Housing Act (FHA) bans housing discrimination based on race, color, national origin, religion, sex, familial status, or handicap (though the term “disability” is more commonly used).
The FHA defines a person with a disability to include individuals who have a physical or mental impairment that substantially limits one or more major life activities; individuals who are regarded as having such an impairment; and individuals with a record of such an impairment.
The term “physical or mental impairment” includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, Human Immunodeficiency Virus infection, mental retardation, emotional illness, drug addiction (other than addiction caused by current, illegal use of a controlled substance), and alcoholism. Examples of major life activities are caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
Chasick explained that it’s important to understand the FHA’s definition of disability because it’s the only one of the seven federally protected classes that allows for the use of accommodations or modifications so that the resident may fully enjoy use of his home. The other protected classes don’t have this as a feature—so when considering an accommodation request, the first step is to determine whether the request is by or for an individual with a disability.
As an example, Chasick recounted a question he was asked about a resident who had moved to a no-pet property because he had a severe animal allergy. When the unit right next door was leased to someone with an emotional support animal, he came to the office to complain: He had moved there thinking that he would never have to deal with animals ever again, but now he needed to get out of his lease because of the situation.
The fact that someone is allergic, Chasick explained, doesn’t necessarily mean that he qualifies as having a disability under fair housing law. Unless his allergy meets the level of impairment required under the definition of disability—that is, it substantially limits one or more major life activities—then he’s not entitled to any kind of accommodation, so you aren’t required to let him out of his lease without penalty.
4 RULES FOR HANDLING
REASONABLE ACCOMMODATION REQUESTS
Rule #1: Understand What the FHA Requires
Under the FHA, it’s unlawful to refuse to make reasonable accommodations to rules, policies, practices, or services when such accommodations may be necessary to afford persons with disabilities an equal opportunity to use and enjoy a dwelling. Under the FHA, a “reasonable accommodation” is 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, including public and common use spaces. Since rules, policies, practices, and services may have a different effect on persons with disabilities than on other persons, treating persons with disabilities exactly the same as others will sometimes deny them an equal opportunity to use and enjoy a dwelling.
Get familiar with the guiding document for evaluating requests for reasonable accommodations: The joint guidance issued by the Justice Department and HUD in 2004. Chasick explained that the guidance goes into great detail about reasonable accommodations under the FHA, including definitions, examples, and what communities need to do in terms of compliance.
It’s very important to be able to recognize when someone is making a reasonable accommodation request—in Chasick’s words, to learn to speak “requestese.” As an example, Chasick said suppose someone looking for an apartment comes in with his Chihuahua, but you say you’re very sorry, you’re not a pet-friendly community and you don’t allow pets. He responds by telling you that Poco is not a pet. It may not seem like it, but that’s what accommodation requests can sound like, Chasick said. People are not typically going to say, “Under the Fair Housing Act, I am hereby requesting a reasonable accommodation for….” That’s not how it’s going to happen, Chasick said, because people just don’t say those kinds of things. Sometimes, you have to interpret what people say to understand that someone is making a reasonable accommodation request.
When you get an accommodation request, it’s up to you to evaluate whether the person is entitled to a reasonable accommodation because of a disability and whether the requested accommodation is reasonable and necessary, he said. You should never reject a request out of hand—even if you already know that there’s no way the request will be approved. It’s better to respond by saying something like, “We’re happy to consider your request,” and then you can explain that you may need additional information and put it through the process.
Chasick stressed the importance of providing training to everyone working onsite, particularly maintenance and housekeeping staff who interact most with residents and prospects who might see someone in uniform and go up to speak to him. Chasick said it’s extremely important that those folks know how to respond anytime someone asks whether he can get a reserved handicapped parking space or whether the community allows service animals. Whenever they get questions like that, the best answer is, “You know, I’m not really sure; let’s go to the office and find out.”
Otherwise, misunderstanding from these encounters could lead to fair housing trouble. Chasick offered an example: Let’s say you have a maintenance professional who’s worked onsite for many years and has dealt with dozens of requests for reserved handicapped accessible parking spaces. Because he doesn’t really know about how requests for those spaces are actually evaluated and approved, he may believe it’s something you do all the time, so he just tells a prospect who asks about getting an accessible space that he’s sure it’ll be okay—but the reality is that it may not be warranted in this particular case.
Rule #2: Obtain Documentation, if Necessary
The law allows you to request disability-related information when someone requests a reasonable accommodation or modification, but only in certain circumstances.
You can’t ask for documentation if both the person’s disability and disability-related need for the requested accommodation are obvious or apparent. For example, your community may not allow pets, but someone with a visual impairment comes in with a guide dog. You can’t ask for documentation of his disability or disability-related need for the requested accommodation—both are obvious—so the request will typically be approved, Chasick said.
But that’s not typically the case when someone comes in with an emotional support animal, Chasick said, so you may request some kind of verification that he has a disability and a disability-related need for the animal.
When someone doesn’t have an apparent or obvious disability, you’re allowed to obtain disability-related information from her healthcare provider or caregiver that she satisfies the FHA’s requirements to qualify as an individual with a disability—that is, she has a physical or mental impairment that substantially limits one or more major life activities. Just be careful that you don’t overdo it. You can’t ask for access to her medical records or for detailed or extensive documentation about the nature of her physical or mental impairments.
You’re also allowed to request documentation if there’s no obvious reason that the individual has a disability-related need for the requested accommodation. That’s because the law doesn’t require you to grant a request for a reasonable accommodation and modification unless it’s necessary—that is, there’s an identifiable relationship, or nexus, between the requested accommodation and the individual’s disability. When someone asks for something because of a disability, you have to look for that nexus, Chasick said.
Consider two requests from someone in a wheelchair who comes into the office of your no-pet community. When he says he’s going to need grab bars for his apartment, you can look at his wheelchair and easily see an identifiable relationship between what he’s asking for—the grab bars—and why he needs them. You can’t ask for more information to support his request. The HUD/DOJ guidance memo says that if you can see that nexus between the disability and what’s being requested, then that’s the end of the story, Chasick said; you should approve the request.
But then the prospect says, I’m also going to need my Chihuahua Poco. Again, you look at the wheelchair and the dog, but this time the connection between the resident’s disability and his need for the dog is not obvious. Because you can’t see the nexus—the relationship between his disability and his need for the dog—you’re entitled to ask for information necessary to evaluate whether the requested accommodation is needed because of that disability. Chasick said that you can tell him that you’re happy to consider his request, but you’ll just need verification from his caregiver or healthcare provider of his disability-related need for Poco.
Coach’s Tip: You can adapt our two model forms, Resident's Reasonable Accommodations & Modifications Request Form and Reasonable Accommodations & Modifications Verification Form, developed by Chasick, to document and verify requests for reasonable accommodations and modifications at your community. Show them to an attorney in your area to ensure that they are appropriate for use in your community.
Rule #3: Determine Whether the Request Is Reasonable
Once someone rents a home from you, you must give him an equal opportunity to use and enjoy that dwelling—and that includes amenities and common areas and the entirety of where he’s living—not just the apartment home. But accommodations are not automatic, Chasick said: An accommodation needs to be approved only if it meets the “reasonable” test.
As explained in the HUD/DOJ guidelines, a request for a reasonable accommodation may be denied if providing the accommodation is not reasonable—that is, it would impose an undue financial and administrative burden on the housing provider or it would fundamentally alter the nature of the provider’s operations. 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 provider, 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.
Chasick offered an example: When he moved in, a resident wasn’t disabled, but he became disabled during the term of his lease. Although the community requires residents to bring their trash to the Dumpster twice a week, he says that it’s become an extreme hardship for him to get to the Dumpster because of his disability. So, he makes a request for a reasonable accommodation: If he puts the trash outside his door twice a week, would you send someone over to pick up it up?
Whether his request is reasonable depends on various factors, Chasick said. If you’re a 500-unit community, for example, then it would be difficult for you to prove that granting his request would pose an undue administrative burden or fundamentally alter the way you do business. If, on the other hand, you’re a five- or 10-unit community with only a part-time maintenance professional who services many other units in various locations, then granting the request might fundamentally alter the way you do business or create an undue financial burden if you have to pay overtime for the maintenance professional to perform this service.
Chasick also gets a lot of questions about the reasonableness of requests for changes in rental payment dates. They generally go something like this, he said: A resident says that he has become disabled and is now collecting Social Security disability benefits. Because the disability payment dates are linked to his date of birth, he says that he now gets his check on the 14th of the month. Currently, his rent is due on the first of the month, and late as of the second, but as a reasonable accommodation, he asks you to change his rental due date from the first of the month to the 14th, so his rent would now be due on the 14th and late on the 15th.
Is that a reasonable accommodation? In most cases, it would be, Chasick said. Remember, an accommodation is a change in our policies and procedures, and the resident by virtue of becoming disabled now receives his income on a different date. In most situations, his request to change the rental due date to coincide with the payment date of his disability checks would be considered reasonable, Chasick said.
Rule #4: Consider Alternatives if Requested Accommodation Is Unreasonable
It’s risky to flatly deny accommodation or modification requests—even if you think they’re unreasonable. The HUD/DOJ guidelines say that when a housing provider refuses a requested accommodation because it is not reasonable, the provider should discuss with the requester whether there is an alternative accommodation that would effectively address the requester’s disability-related needs without a fundamental alteration to the provider’s operations and without imposing an undue financial and administrative burden.
In essence, that means you should offer the resident any reasonable alternative accommodations that may exist, Chasick said. Ask yourself: Is there some other way for him to more fully use and enjoy his apartment home?
To illustrate the process, Chasick offered an example. Let’s say you’re managing a 45-year-old two-story walk-up garden apartment, which doesn’t have elevators. A person comes into your office; he’s in a wheelchair due to a mobility impairment, but he wants to move into the second-floor unit that just opened up because his best friend lives next door. He makes a request for a reasonable modification—to install an elevator to the second floor at his expense. Should you approve his request?
Based on the age and condition of the building, his request may not reasonable, Chasick said. For example, the physical stress on the 45-year-old building from a piston elevator may be extraordinary and you may not have the electrical capacity for the elevator. There’s also a financial burden: Even though the resident will pay for installation of the elevator, you’ll probably be responsible for its maintenance and upkeep if anyone else benefits from its use.
Based on all these factors, you may be justified in concluding that his request is unreasonable, but what’s the reasonable alternative? In this case the reasonable alternative would be living on the first floor, Chasick said.
Now even when you’ve done everything by the book, it doesn’t mean that you’re immune from a fair housing complaint or a federal lawsuit. People have up to one year from the date of an alleged violation to file an administrative complaint with HUD, and up to two years from the alleged violation to file a lawsuit in federal court. But if you followed the rules, applied them consistently, and documented every step in the process, you’ll be in a good position to defend yourself and show that your actions complied with fair housing law.
- Fair Housing Act: 42 USC §3601 et seq.
Douglas D. Chasick, CPM, CAPS, CAS, ADV. RAM, CLP, SLE, CDEI: President, The Fair Housing Institute, Inc.; (321) 956-2188; firstname.lastname@example.org.