10 Steps to Avoid Liability for Refusing Reasonable Accommodations

Not all requests for disability accommodations are reasonable. How can you tell which are and which aren’t?

 

While the COVID-19 pandemic may have kept people at home in 2020, it apparently didn’t keep them from suing for discrimination. There were 28,712 total fair housing complaints in that pandemic year, according to the National Fair Housing Alliance (NFHA). That’s the third highest annual total since 2009, and only 168 complaints fewer than the second-place year of 2019. (Note: NFHA, a national civil rights organization that tracks fair housing litigation across the US, hadn’t published the 2021 statistics as of the date we went to press.)

Continuing historic patterns, disability discrimination was the most common ground of complaint, accounting for 15,664 (54.46%) of all 2020 cases. It’s a pretty good bet that failure to provide reasonable accommodations was at the center of most of these cases.

Bottom line: Statistically at least, if an applicant or resident ever sues you for a fair housing violation, it’ll most likely be for allegedly violating your obligation to provide reasonable accommodations for a disability.

Accordingly, this month’s lesson is all about how to handle accommodations requests. First, we’ll explain the laws of reasonable accommodation. Then, we’ll outline a 10-step process to ensure the reasonableness of not only your ultimate substantive decision about whether to grant a requested accommodation but also the process you use to arrive at that decision. At the end of the lesson, you can take the COACH’s Quiz enabling you to measure whether you’ve learned the material and are prepared to apply it to real-life situations.   

WHAT DOES THE LAW SAY?

Section 3604(f)(1)(B) of the federal Fair Housing Act (FHA) bans discrimination against rental applicants, tenants, or the people associated with them, such as a tenant’s child, because of their disability. It’s also illegal (under Section 3604(f)(3)(B)) to refuse “to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.”

According to the U.S. Department of Housing and Urban Development (HUD), “a reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with disabilities to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces, or to fulfill their program obligations” (if they’re in federally assisted housing). Examples:

• A community that doesn’t assign parking spaces makes an exception so that a mobility-impaired tenant will always be able to park near the building entrance;
• A community that requires tenants to pay their rent in person each month makes an exception for a tenant with a mental disability that makes her afraid to leave her apartment; and
• A community with a no-pets policy makes an exception allowing a sightless tenant to keep a seeing-eye dog in his apartment.

DEEP DIVE:

Reasonable Accommodations vs. Reasonable Modifications

Section 3604(f)(3)(A) of the FHA also bans refusing to allow “reasonable modifications of existing premises.” Like reasonable accommodations, reasonable modifications are reasonable changes necessary to afford a disabled applicant or tenant “full enjoyment” of the premises, but with two key differences:  

• A reasonable modification is a structural change made to the property, while a reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service; and
• More significantly, tenants are responsible for the costs of modifications while landlords must pay for accommodations. 

You may also have to comply with more stringent accommodations requirements under other laws, including:

• If you open all or part of your community to the public, you must make “reasonable modifications” and ensure it’s designed, constructed, and maintained to be fully accessible to the disabled under federal Americans with Disabilities Act (ADA) requirements;  
• Section 504 of the of the federal Rehabilitation Act of 1973, which imposes stricter discrimination rules on landlords that participate in HUD housing and other federal assistance programs; and
• State and local fair housing laws, which are often much stricter than the FHA.

10 STEPS FOR PROPERLY HANDLING

REASONABLE ACCOMMODATION REQUESTS

Complying with your FHA duty to provide reasonable accommodations is one part substance and one part process. The first and most obvious challenge is to determine whether a requested accommodation is reasonable; the part that often gets overlooked relates not so much to the actual decisions you make but how you make them. Accordingly, the game plan below incorporates both challenges.

Step 1: Ensure Requestor Is (or Is Acting on Behalf of) a Disabled Person

Remember that while the FHA bans housing discrimination based on race, color, national origin, religion, sex, familial status, and disability, entitlement to reasonable accommodation applies to just one group: persons with disabilities. In other words, protection from fair housing discrimination doesn’t necessarily equate to the right to accommodation.

DEEP DIVE:

Are Other Protected Classes Entitled to Accommodations?

Although the FHA doesn’t expressly provide it except in the context of disabled persons, the argument has been made that reasonable accommodations are also required when necessary to allow a person protected by the law equal opportunity to “use and enjoy” housing. A notable case testing these principles involved a Chicago condo community whose tenants included the Blochs, a family of strong Jewish faith that posted a religious symbol called a Mezuzah on their door post. For over three decades, nobody said a word about the Mezuzah. But after a repainting, the condo board adopted a new rule banning tenants from posting any mats, signs, or other displays on their door posts. The Blochs requested a religious exemption allowing them to keep their Mezuzah, but the board said no.

The result was years of litigation, culminating in a U.S. Court of Appeals Seventh Circuit ruling denying the board’s motion to dismiss and allowing the Blochs to take their religious accommodations lawsuit to trial [Bloch v. Frischholz, 587 F.3d 771 (7th Cir. 2009)].

What “disability” means: The FHA defines “disability” broadly as a physical or mental impairment that substantially limits one or more “major life activities.” Protection against discrimination and entitlement to accommodation extends to a person who:

• Actually has such a disability;
• Is perceived as having such a disability, even if that perception is wrong, such as where a landlord rejects an applicant that it wrongly believes has HIV; and
• Has a record of such an impairment, such as a recovered drug addict.

What “major life activities” are: “Major life activities” are those of central importance to daily life, such as walking, seeing, hearing, breathing, performing manual tasks, caring for one’s self, learning, and speaking. Conditions that substantially limit mobility are deemed disabilities, regardless of whether they’re plain to see or due to physical or mental conditions that aren’t readily apparent, such as heart disease, muscle weakness, or breathing ailments.

Step 2: Don’t Reject an Accommodation Because of How or When It’s Requested

You don’t have to make accommodations unless they’re specifically requested. On the other hand, you can’t make a big deal over the timing and formalities of a request. There’s no rule saying that requests must be in writing. Nor do requestors have to use the words “reasonable accommodation,” “fair housing,” “disability,” or any other magic language. All they need to do is make it clear that they’re requesting an accommodation. Note also that an accommodation request can come from either the rental applicant/tenant or a person acting on his or her behalf. According to HUD/U.S. Department of Justice (DOJ) Guidelines (which we’ll refer to as the “Guidelines”), a landlord is on notice “that a reasonable accommodation request has been made if a person, her family member, or someone acting on her behalf requests a change, exception, or adjustment to a rule, policy, practice, or service because of a disability.”

Other key things to keep in mind:

• Accommodation requests can be made by rental applicants as well as tenants at the start or at any time during their tenancy;
• You can ask requestors to put their requests in writing, but you can’t require them to do so; and
• While a family member, guardian, or other third party may request a reasonable accommodation on a disabled person’s behalf, a third party can’t demand an accommodation solely for his or her own benefit, such as an assigned parking space.

COACH’s Tip: HUD recommends that landlords create forms and procedures that people can use to submit written requests for accommodations. This can facilitate and speed up the processing of requests and “prevent misunderstandings regarding what’s being requested, or whether the request was made.” However, the Guidelines add, landlords “must give appropriate consideration to reasonable accommodation requests even if the requester makes the request orally or does not use the [landlord’s] preferred forms or procedures for making such requests.”

Step 3: Promptly Respond to Accommodation Requests

Don’t ignore an accommodation request, no matter how baseless and frivolous you think it is. While there’s no specific deadline, the Guidelines make it clear that landlords and other housing providers must provide a “prompt response” to a reasonable accommodation request. “An undue delay in responding to a reasonable accommodation request may be deemed to be a failure to provide a reasonable accommodation,” according to HUD/DOJ.

Step 4: Engage Your Accommodation Process

Engage in an interactive process with the requestor to gather the necessary information about the request and disability (which we’ll discuss under Step 5) and discuss ways to accommodate it. Recognize that failure to reach agreement on an accommodation request is tantamount to a denial. Result: The requestor can file a disability discrimination complaint with HUD or the equivalent state or local fair housing agency, which will then perform an investigation to determine whether there’s “reasonable cause” to believe you violated your accommodation duties. If so, you’ll end up having to defend yourself in a federal court or HUD Administrative Law Judge proceeding.  

Example: A Missouri landlord had to shell out $44,000 for denying a tenant’s request to transfer to a unit with fewer stairs to accommodate her mobility-impaired daughter. The landlord flatly refused the request, saying it had no apartments available. In dishing out the fine, the federal court cited the landlord’s failure to even engage the tenant, evaluate the daughter’s medical needs, and explore ways to accommodate them [United States v. Dunnwood, (E.D. Mo.) July 16, 2020].  

Strategy: Although the FHA doesn’t expressly require it, HUD recommends that landlords implement formal rules and procedures for handling accommodation requests. Advantages of having a formal accommodations process include:

• Ensuring that all accommodations requests get a prompt response and that no requests fall through the cracks;
• Enhancing the likelihood of agreement and preventing misunderstandings and miscommunications that can lead to complaints and investigations; and
• Generating a paper trail documenting the proper consideration you gave to the request, setting up your legal defense in case complaints and investigations do occur.

Caveat: The Guidelines warn that you can’t refuse to consider a reasonable accommodation request just because the requestor won’t follow your formal procedures or use your preferred forms.

Step 5: Properly Verify the Requestor’s Disability and Need for Accommodation

Let’s turn to how to actually make decisions on particular accommodation requests. The first step is to verify the need for the requested disability accommodation. Normally, you’re not allowed to ask applicants or tenants if they’re disabled or about the nature and extent of their disability. However, the Guidelines give landlords some leeway to gather information about a person’s disability in response to a reasonable accommodation request to the extent the information is necessary to determine three things:

1. The person meets the FHA definition of disability—that is, has a physical or mental impairment that substantially limits one or more major life activities;
2. Exactly what accommodation is being requested; and
3. Whether there’s a “nexus,” or relationship, between the disability and the need for the requested accommodation.  

Example: A tenant requested an assigned parking space as an accommodation for his Alzheimer’s Disease. The landlord said no. The California federal court dismissed the tenant’s failure-to-accommodate complaint because of the lack of evidence showing the link between Alzheimer’s and parking and how having an assigned parking spot was an accommodation necessary to “ameliorate” the disease’s effects [Elliott v. QF Circa, Case No. 16-cv-0288-BAS-AGS, June 18, 2018].  

Beware: There are limits on what information you can and can’t ask for, depending on what you already know or can easily surmise.

Rule 1: If the person’s disability and need for the accommodation is obvious, or otherwise known to you, you can’t request any additional information about the disability or disability-related need for the accommodation.

Rule 2: If the disability is known or readily apparent to you, but the need for the accommodation is not, you may request only information that’s necessary to evaluate the disability-related need for the accommodation.

• OK to request verification: A rental applicant in a building without elevator service wants a ground-floor apartment, claiming she can’t climb steps due to asthma or some other respiratory ailment. Since the claimed disability isn’t readily apparent, the landlord would be justified in asking for verification of the ailment and why she needs a first-floor apartment to accommodate it.
• Not OK to request verification: Same scenario but instead of a respiratory ailment, the applicant uses a wheelchair. Since the physical disability (that is, a mobility impairment) and disability-related need for the requested accommodation are both readily apparent, the landlord can’t require the applicant to provide any additional information about the disability or need for a ground-floor apartment.

Strategy: You may be able to get the information you need to verify that the person meets the FHA definition of disability directly from the requestors themselves, such as in the form of credible statements from the individuals, or the fact they have government-issued disability license plates or placards on their vehicle or receive Supplemental Security Income or Social Security Disability Insurance benefits despite being under age 65.

If necessary, the Guidelines say landlords may also seek verification from a doctor or other medical professional, peer support group, non-medical service agency, or reliable third party in a position to know about the individual’s disability. However, they must limit the request to only the information needed to verify the disability and need for the accommodation. 

Step 6: Determine If Requested Accommodation Is Reasonable

You need only grant requested accommodations that are reasonable. According to HUD, a request for an accommodation is reasonable if it:

• Doesn’t cause landlords to incur an undue financial and administrative burden;
• Doesn’t cause a basic or fundamental change in the nature of the housing program available;
• Won’t cause harm or damage to others; and
• Is technologically possible.

These criteria are critical, so let’s look at them more closely.

Financial and administrative burden. You can’t deem a requested accommodation unreasonable simply because it costs time and money to provide. The burden must be “undue,” based on the accommodation’s costs, the landlord’s financial resources, the benefits to the requestor, and the availability of cheaper, easier alternatives that would effectively meet the requestor’s needs. Examples of accommodations for disabilities that would impose undue financial or administrative burden would include making structural changes to common areas or completely paving over and reconstructing the entire parking lot for the sake of one tenant.  

Fundamental alteration. Accommodations require “fundamental alterations” when they alter the essential nature of a landlord’s operations.

Example: A tenant with a severe mobility impairment asks his landlord to transport him to the grocery store and help him with his grocery shopping. The request wouldn’t be a reasonable accommodation to the extent that the landlord doesn’t provide any transportation or shopping services for any of its tenants, according to the Guidelines.

Harm or damage to others. You don’t have to make accommodations that would endanger the health and safety of others or pose the risk of unreasonable damage to property, such as by making an exception to a no-pets policy to allow a tenant to keep a full-grown elephant or camel in her apartment as a “therapy animal.”   

Detrimental to other disabled persons. Accommodations aren’t reasonable if they require you to deprive other disabled applicants or tenants an equal opportunity to use and enjoy their own apartments. For example, you don’t have to force one mobility-impaired tenant to vacate a ground-floor apartment or give up a reserved accessible parking space in favor of another tenant who’s “more disabled.” If resources are limited, create a waiting list for granting requests as things open up in the order you receive them based on which disabled tenant has been waiting the longest.

Technologically impossible. Accommodations aren’t reasonable if they’re technologically impossible. Thus, for example, the owner of a three-story prewar urban brownstone building wouldn’t have to—and probably wouldn’t be able to—install an elevator just so a mobility-impaired tenant could continue living on the third floor.   

Strategy: It’s a good idea to consult an attorney for advice before notifying the requestor of your decision if, for whatever reason, you determine that a requested accommodation is unreasonable.

Step 7: Consider Alternative Accommodations If Request Is Unreasonable

The accommodations process shouldn’t end simply because you conclude that a requested accommodation is unreasonable. Before you reject the request, dig deeper and ask yourself this question: Is there some other change you can make or action you can take that would enable the requestor to more fully use and enjoy his or her home?

Example: Let’s go back to the example above where a disabled tenant’s request that a landlord drive him to the grocery store would be deemed an unreasonable accommodation to the extent such services aren’t offered to any tenants. Even though the landlord can deny the request, it should consider alternatives that would meet the tenant’s needs without forcing a fundamental alteration of operations. For example, maybe it can alter its parking policy to allow a local volunteer to park her car close to the tenant’s apartment so she can drive him to the store and help him shop for groceries.

You can also offer easier or cheaper alternatives to those who make reasonable requests. However, if an accommodation is reasonable, the requestor isn’t obligated to accept any of your suggested alternatives.

Step 8: Don’t Charge Accommodation Request Fees or Deposits

The Guidelines state that you can’t make individuals with disabilities pay extra fees or deposits as a condition for receiving a requested accommodation. That includes charging an administrative fee for processing an accommodation request. If an accommodation is reasonable, you must pay the associated costs out of your own pocket and not charge the requestor a fee or deposit to defray the associated expenses.  

Example: A Pennsylvania seniors housing provider had to shell out $80,000 to settle discrimination claims brought by mobility-impaired tenants and fair housing agencies, including for allegedly charging disabled tenants as much as $350 for designated parking spaces necessary to make their apartments accessible [Clover Group, May 2020].

Similarly, if an accommodation is reasonable, you must provide it without imposing financial or other conditions, such as by requiring tenants to pay “pet deposits” or carry extra insurance coverage for their service animals.

Example: A Minnesota apartment community paid $35,000 to settle claims of placing undue conditions on a tenant’s request for a service animal by requiring her to:

• Buy an insurance policy covering the dog and listing the landlord as a co-insured;
• Make the dog wear a special emotional support animal vest at all times outside the apartment; and
• Sign an “indemnification and hold harmless waiver” covering the landlord against any harm the dog caused [United States v. Brooklyn Park 73rd Leased Housing Assoc., LLC, (D. Minn., Jan. 22, 2016)].

Step 9: Don’t Retaliate Against Persons for Requesting Accommodations

You can’t evict, reject, or take any other adverse action against any person for requesting a reasonable accommodation. You can be liable even if retaliation is just one motive for a decision—for example, evicting a tenant for not paying rent and for requesting an accommodation.

Example: A Tennessee landlord evicted a disabled tenant after he requested reasonable modifications (removal of a concrete parking bumper) and accommodations (two assigned parking spaces). The tenant filed a complaint with HUD, claiming the eviction was retaliatory. Rather than risk a trial, the landlord paid $52,500 to settle the claims [United States v. Fairfax Manor Group, LLC, (W.D. Tenn., March 19, 2018)].

Step 10: Keep Requestor’s Personal Information Confidential

The personal information you collect to process an applicant or tenant’s request for a disability accommodation is protected by privacy laws. Result: You must keep the information confidential and secure, use it only for purposes of processing the accommodation request, and not disclose it to others except when you’re legally required to do so, such as when  a court issues a subpoena requiring you to disclose the information. These privacy obligations apply regardless of whether you ultimately grant or deny the accommodation request.