When To Make Exceptions To Community Policies And Procedures

May 9, 2010

When it comes to fair housing compliance, the watchword is consistency. In most cases, consistency in how you treat everyone—starting from anyone who calls or visits your community to applicants, residents, and their guests—is the best way to ward off claims of discrimination based on race, color, sex, or other characteristics protected under federal, state, or local law.

When it comes to fair housing compliance, the watchword is consistency. In most cases, consistency in how you treat everyone—starting from anyone who calls or visits your community to applicants, residents, and their guests—is the best way to ward off claims of discrimination based on race, color, sex, or other characteristics protected under federal, state, or local law.

Policies and practices that ensure consistent treatment will stand you in good stead in most cases, but there are important exceptions that you must understand and apply properly to avoid fair housing trouble. Fair housing law requires communities to grant reasonable requests to modify physical structures and to alter community rules as a reasonable accommodation when necessary to allow individuals with disabilities an equal opportunity to use and enjoy the premises.

Although the rules sound straightforward, it's often difficult to put into practice for a number of reasons:

Since most fair housing efforts are aimed at ensuring consistency, communities may have trouble recognizing when they may have to make an exception.

The rules on reasonable accommodations and modifications can be complicated, so it can be difficult to know when and how to make exceptions.

The stakes are high: Disputes involving alleged disability discrimination—including refusal to grant reasonable accommodation and modification requests—top the list of reasons why fair housing complaints are filed with HUD and private enforcement agencies each year.

This month, we'll take a look at how fair housing law may require exceptions to community policies, practices, and rules. We'll suggest eight rules to help you address the types of exceptions that most commonly lead to fair housing complaints. Then, you can take the COACH's Quiz to see how much you have learned.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) makes it unlawful for housing providers to exclude or otherwise discriminate against prospects, applicants, or residents because of race, color, religion, sex, national origin, familial status, or disability. In addition, where applicable, communities must comply with state and local laws that have added protections to other characteristics such as marital status, source of income, and sexual orientation. Taken together, these laws prohibit communities from making housing decisions or treating applicants and residents differently based upon any protected characteristic.

Lawmakers went further with respect to one protected characteristic—disability—based on the belief that additional measures were necessary to ensure equal access to housing for individuals with disabilities. In addition to establishing accessible design standards for new construction, the FHA imposes additional requirements on communities related to reasonable modification of the existing premises and exceptions to community policies and rules as reasonable accommodations when necessary to afford individuals with disabilities full enjoyment of the premises.

A person with a disability may need either a reasonable modification or a reasonable accommodation, or both, to have an equal opportunity to use and enjoy a dwelling, including public and common areas, according to federal guidelines. The modification provisions apply to structural changes to existing premises, while the accommodation provisions involve exceptions or adjustments to community rules, policies, practices, or services.

Though the standards are similar—the individual must have a disability-related need for the modification or accommodation—the main difference involves who is responsible for paying the costs associated with the request. In general, the resident must pay for reasonable modifications, but the community is responsible for paying for costs related to reasonable accommodations unless it is an undue financial or administrative burden.

8 RULES ON MAKING EXCEPTIONS TO COMMUNITY POLICIES, PRACTICES, AND PROCEDURES

Rule #1: In General, Strive for Consistency

As a general rule, communities may establish reasonable, nondiscriminatory policies, practices, and rules that everyone in the community must follow. Applying the same policies and rules to everyone helps avoid accusations of conduct made unlawful under the FHA, such as:

Excluding members of protected classes from living in your community;

Falsely denying that housing is available to members of protected classes;

Discouraging members of protected classes from living there;

Restricting where members of protected classes may live in your community;

Setting different terms, conditions, privileges, or facilities for members of protected classes;

Delaying or denying requests for maintenance services for members of protected classes;

Enforcing community rules more harshly or leniently for members of protected classes;

Making eviction decisions because of a protected characteristic;

Making statements expressing a preference for or against members of protected classes; or

Threatening, coercing, intimidating, or interfering with anyone exercising a fair housing right.

In essence, consistency in how you treat prospects, applicants, residents, and their guests helps avoid any perception that your community has a preference for or against anyone based on a protected characteristic.

Rule #2: Don't Ignore Requests for Exceptions to Community Rules

Be alert for circumstances in which you may have to consider allowing structural modifications or exceptions to rules, policies, or services as a reasonable accommodation for an individual with a disability. Traps for the unwary include ignoring a request because the applicant or resident:

Is not disabled. The law prohibits discrimination against anyone who lives or is associated with an individual with a disability, so communities must consider requests for reasonable accommodations or modifications made by a family member or someone else who is acting on his behalf.

Doesn't appear to be disabled. The FHA defines disability as a physical or mental impairment that substantially limits one or more major life activities, so the law protects individuals whose impairment is not obvious or apparent. The law also protects individuals who have a record of an impairment or are regarded as having an impairment—so it prohibits discrimination against individuals who are not currently disabled if they have a past history of an impairment or give the impression of having an impairment.

Doesn't mention fair housing law or use the words “reasonable modification” or “reasonable accommodation.” The applicant or resident doesn't have to, according to federal guidelines, which explain that a resident makes a reasonable modification request whenever she makes it clear to the housing provider that she is requesting permission to make a structural change because of her disability. Similarly, a resident makes a reasonable accommodation request whenever she makes it clear to the housing provider that she is requesting an exception, change, or adjustment to a rule, policy, practice, or service because of a disability.

Refuses to fill out your forms or follow your procedures. Although it's a good idea for reasonable modification and accommodation requests to be in writing, federal guidelines emphasize that housing providers must consider requests even if the individual makes the request orally or does not use your preferred forms or procedures for making such requests.

Rule #3: Know When It's OK to Ask for Disability-Related Information

The general rule under fair housing law forbids communities from asking disability-related questions. For the most part, the FHA makes it unlawful for communities to ask applicants or residents whether they or anyone associated with them has a disability; questions regarding the nature or severity of a disability are also generally prohibited.

But when faced with an accommodation or modification request, communities may lawfully ask for disability-related information under certain circumstances. In general, you can't ask questions if both:

The disability is obvious or apparent; and

The disability-related need for the accommodation or modification request is obvious or apparent.

But you can ask questions if either the disability or the disability-related need for the request is not obvious or apparent:

If the disability is not obvious or apparent, you may request information necessary to verify that the individual meets the FHA's definition of disability—that is, has a physical or mental impairment that substantially limits one or more major life activities.

If the disability-related need for the requested accommodation or modification is not readily apparent or known, then you may ask for information necessary to evaluate whether the requested accommodation or modification is necessary because of a disability.

The law demands confidentiality for disability-related information. Such information may not be shared with anyone unless he needs it to evaluate an accommodation or modification request or disclosure is required by law.

COACH'S TIP: In the absence of an accommodation or modification request, the law recognizes another exception to the general ban on asking disability-related questions. According to federal guidelines, communities may make the following inquiries, provided they are made of all applicants, including those with or without disabilities:

An inquiry into an applicant's ability to meet the requirements of tenancy;

An inquiry to determine if the applicant is a current illegal abuser or addict of controlled substances;

An inquiry to determine if the applicant qualifies for a dwelling legally available only to individuals with a disability or particular type of disability; and

An inquiry to determine if the applicant qualifies for housing that is legally available on a priority basis to persons with disabilities or a particular disability.

Rule #4: Know When to Make Exceptions to Rules Banning or Restricting Animals

Although fair housing law does not prohibit communities from maintaining policies to ban or restrict residents from keeping pets in their units, the FHA requires communities to make an exception to such policies as a reasonable accommodation for an individual with a disability who needs an assistance animal to fully use and enjoy the premises. As an example, federal guidelines state that a community must make an exception to a no-pets policy for a resident with a hearing impairment who needs a service dog to alert him to sounds, such knocks at the door; the telephone ringing; or the warning of the smoke detector.

In practice, however, requests for assistance animals often are not so clear cut. Though dogs still seem to be at the center of many fair housing cases, communities may face requests from applicants or residents to keep cats, birds, ferrets, reptiles, and other types of animals as assistance animals. And increasingly, the type of assistance provided by animals has expanded beyond physical tasks to include emotional support, which may not require any sort of specialized training. Combined, these factors may make it difficult for communities to sort out when an animal qualifies as an assistance animal or simply is a pet.

If in doubt about whether the resident has a disability-related need to keep an assistance animal, communities may obtain further information so they can respond properly to the request—rejecting it out of hand can only lead to trouble.

Example: Earlier this year, a Long Island, N.Y., co-op community settled a lawsuit filed by the U.S. Department of Justice over its alleged refusal to waive a no-pets policy to permit a 90-year-old widow to keep a miniature poodle as an assistance animal. Allegedly, the community refused the resident's offer to provide medical documentation to support her need for the animal and took steps to have the animal evicted from the building. Without determining fault or liability, the settlement allows the resident to keep the dog in her unit as an assistance animal [U.S. v. 75 Main Avenue, New York, February 2010].

Furthermore, you must make an exception to any policies requiring pet owners to pay extra fees or security deposits if a resident has a disability-related need for an assistance animal. According to federal guidelines, communities may not require individuals with disabilities to pay extra fees or security deposits as a condition of allowing an applicant to keep an assistance animal as a reasonable accommodation. Nevertheless, communities may charge a resident for the cost of repairing any damage caused by an assistance animal, if the community has a general policy requiring all residents to pay for damages they cause to the premises.

COACH'S TIP: In general, the reasonable accommodation rules do not exempt assistance animals from a community's reasonable health and safety requirements. In a recent case, an Ohio court ruled that a residential care facility did not violate the FHA by refusing to admit a client accompanied by his dog, an alleged service animal, because of his refusal to turn over the dog's vaccination records. The court said that the community's written policy, which allowed animals to be admitted only after receiving proof of vaccinations, was reasonable because it protected the health and safety of residents and staff members. Based on evidence that he would have been accepted if he had provided the dog's vaccination records, the applicant failed to prove that he was turned away from the facility based on his alleged disabilities or his alleged need for a service animal [Ohio Civil Rights Commission v. Mellon Ridge, Inc., November 2009].

Rule #5: Know When to Make Exceptions to Rules Governing Parking

Many communities have policies of not assigning parking spaces or maintaining a waiting list for available parking in locations where space for parking is limited. Nevertheless, communities may face discrimination charges if they refuse to make an exception to such policies as a reasonable accommodation for an individual who has a disability-related need for an assigned accessible parking space.

Example: HUD recently charged a Puerto Rico condominium community with unlawfully denying an accommodation request for a designated accessible parking space by a resident whose disability allowed her to walk only very short distances. Allegedly, the woman asked for a parking space about 100 feet from her unit that is near an accessible route with railings she can use for support. She claimed that in response, the community offered her the use of a handicapped parking space on a first-come, first-served basis; an option that HUD says was unacceptable, given the resident's mobility limitations. According to the charge, the parking space she is currently assigned is an additional 135 feet away from the space she requested, severely limiting her ability to come and go [HUD v. Hal Development Corp., February 2010].

Communities may not require residents with disabilities to pay extra fees as a condition of receiving an accessible parking space. And although parking-related requests may involve physical changes to the premises, they are generally considered reasonable accommodations—as opposed to reasonable modifications, according to federal guidelines. Therefore, the community—not the resident—is responsible for any associated costs, such as creating signage, repainting markings, redistributing spaces, or creating curb cuts.

Rule #6: Know When to Make Exceptions to Financial Requirements

Depending on the circumstances, communities may be called on to make an exception to policies governing financial requirements as a reasonable accommodation for an individual with a disability.

In some cases, disabled applicants have asked for an exemption from financial requirements as a reasonable accommodation, arguing that their disabilities caused them to suffer financial hardships, such as the inability to work. That argument has been rejected by a number of courts, including the federal court in New Jersey, which ruled that a community did not have to make an exception to its minimum income standards as a reasonable accommodation. The court reasoned that without proof that the applicant could have met the standards before becoming disabled, her inability to meet the requirement was not “because of” her disability [Bell v. Tower Management Service L.P., July 2008].

Nevertheless, at least one federal appeals court has ruled that a community had to grant an exception to its policy against cosigners as a reasonable accommodation for an applicant who did not meet minimum income standards because his disability prevented him from working [Giebeler v. MandB Associates, September 2003].

More recently, a federal appeals court acknowledged that relaxing financial requirements may be a reasonable accommodation, even though it wasn't appropriate under the particular circumstances of the case. The lawsuit involved a Michigan community that refused to relax its credit screening requirements as a reasonable accommodation for an applicant with an alleged disability. The community, which had a policy requiring applicants to have a minimum credit score, rejected his application because he had a low credit score. The community also refused his requests for alternatives, such as the use of an escrow fund or a cosigner, as a reasonable accommodation.

The court acknowledged that reasonable accommodations could include economic or financial concessions, depending on the circumstances. In this case, however, the court said that the applicant's poor credit history resulted from his own financial mismanagement—not his disability. Despite his limited income, his credit report showed that he had paid off an auto loan for nearly $30,000 for a Mercedes-Benz while allowing several housing-related accounts to go unpaid. The court ruled that neither of his suggested alternatives was reasonable—his poor credit history involving housing-related expenses didn't bode well for the escrow arrangement, and he failed to identify a proposed cosigner who had good credit [Sutton v. Piper, Michigan, July 2009]

Note that a community may be required to make an exception to its policies regarding the manner in which rent is paid as a reasonable accommodation for a resident with a disability. For example, federal guidelines state that a community with a policy requiring payment of rent in person at the leasing office must make an exception for a resident who has a mental disability that makes her afraid to leave her home. According to the guidelines, the community must grant her request to have a friend mail the rental payments as a reasonable accommodation.

In addition, communities may have to make an exception to policies regarding the form of payment. For example, the Justice Department recently announced a settlement in a fair housing case filed against a New York community based on its alleged refusal to accept rent guarantees from a social services provider that assists people with mental disabilities. In addition to paying a $20,000 settlement, the community agreed, in applying its rental application income requirements, to include reasonably verifiable income provided to applicants by accredited social services agencies that provide benefits to people with disabilities [U.S. v. Berk-Cohen Associates at Tor View Village Apartments, LLC, February 2010].

Rule #7: Know When to Make Exceptions to Rules Governing Resident Conduct

In most cases, communities may establish nondiscriminatory reasonable rules governing resident behavior. Although the rules may describe the consequences for violations, up to and including eviction, communities may have to consider an alternative response as a reasonable accommodation for a resident with a disability.

In some cases, fair housing law does not offer any protection for violation of rules banning criminal activity. For example, you may take action against a resident who is caught violating your rules against using illegal drugs on your property. Even though the law protects individuals who are recovering from substance abuse, it does not protect anyone who is engaged in the current illegal use of controlled substances, according to federal guidelines. Similarly, the guidelines state that juvenile offenders and sex offenders are not, by virtue of that status, individuals with disabilities protected by fair housing law.

Nevertheless, fair housing law may require you to hold off on taking action against a resident whose misbehavior—such as acting in a violent or threatening manner toward a neighbor—is related to a disability. Fair housing law does not protect an individual whose tenancy poses a “direct threat” to the health or safety of your other residents or would result in substantial physical damage to your property—unless the threat can be eliminated or significantly reduced by reasonable accommodation. What that means is that if the resident asks you to allow him to stay as a reasonable accommodation, you must analyze the specifics of what happened, the likelihood of a recurrence, and whether anything can be done to resolve the matter, short of eviction, to ensure he will not pose a direct threat to the health and safety of other residents.

Rule #8: Know When to Make Exceptions to Health and Safety Rules

Communities have a right to adopt rules to protect the health and safety of residents and to prevent property damage. For example, communities may adopt rules banning motorized vehicles, such as mopeds and scooters, from common areas to prevent injuries or property damage associated with the use of those devices.

Nevertheless, federal guidelines state that a community must grant a request for an exception to those rules as a reasonable accommodation for an individual with a disability who uses a motorized wheelchair for a mobility impairment. Despite your concerns about personal injury or property damage caused by the use of motorized vehicles, the guidelines warn that you may not charge the resident extra fees or deposits or require him to obtain liability insurance as a condition of granting the request. Nevertheless, because the law does not protect any person with a disability who poses a direct threat to the safety and property of others, you may require him to operate the vehicle in a manner that does not pose a safety risk or damage property. Furthermore, you may charge him for the cost of repairing any damage he causes, as long as you have a general policy to hold residents financially responsible for any damage they cause to the premises.

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