2022 Scorecard: Using Fair Housing Court Cases to Improve Your Compliance Efforts

December 19, 2022

Cases from the past year offer six important lessons.

 

Cases from the past year offer six important lessons.

 

The federal Fair Housing Act (FHA) says you’re not allowed to discriminate on the basis of a rental applicant or tenant’s race, color, religion, sex, national origin, family status, or disability. It also says that you must make reasonable accommodations for persons with disabilities, you can’t engage in discriminatory advertising or steering, and a bunch of other things which, unless you’re a total novice to multifamily housing leasing, you’ve no doubt heard countless times before. For most landlords struggling to understand the law and stay out of trouble, the issue isn’t so much what the FHA says as what it actually means in real life.

Unfortunately, as with any other piece of legislation, the nitty-gritty specifics and real-life details you need to know to comply with the FHA aren’t contained in the four corners of the statute or regulations that implement its general requirements. Responsibility for interpreting and applying the rules to actual situations is left to the courts.

Bottom Line: If you want to know what the FHA really means, you need to look at the court cases:

  • What happened?
  • Why did the landlord get sued for discrimination?
  • Who won? If the landlord lost, what did it do wrong?
  • If the landlord won, what did it do right?

Having this information at your fingertips can help you make better informed judgments about what you’re currently doing right and wrong, and bolster the effectiveness of your own compliance efforts. The problem is getting your hands on the information. Court cases aren’t easy to track down, let alone read and digest, especially if you didn’t go to law school. And, at a minimum of $500 per hour, you probably don’t have the budget to hire an attorney to do the analysis for you.

The good news is that the Coach does this heavy lifting for you. This month’s lesson breaks down the key FHA rulings from 2022, explaining not just who won and lost, but why and what practical compliance lessons you can take away from the case. We also include a brief digest of what we deem to be the year’s most significant rulings.

WHERE THE SCORECARD CASES COME FROM

The first thing that might surprise you about the Scorecard is how few cases it contains. After all, doesn’t the U.S. Department of Housing and Urban Development (HUD) get nearly 30,000 fair housing complaints each year? This is true. But almost all of these cases get resolved without a trial. As a result, they don’t get reported. Some cases get abandoned. Others get settled. Still others get screened out by HUD. Explanation: The HUD Fair Housing and Equal Opportunity (FHEO) office preliminarily investigates all discrimination complaints received to determine if they have merit. If the FHEO investigator finds “no reasonable cause” to believe that discrimination occurred, HUD drops the complaint; if “reasonable cause” is found, the case goes forward to a HUD Administrative Law Judge (ALJ).

But HUD ALJ cases aren’t widely reported. Consequently, our analysis is based on the relatively few cases that reach federal court, either directly via a lawsuit from an individual, fair housing organization, or the U.S. Department of Justice (DOJ), or an appeal of an ALJ ruling.  

HOW THE CASES ARE DECIDED

There’s also something important you need to understand about the cases that do get reported: Almost none of them are the results of an actual trial. Most of them are rulings on whether the claim should even go to trial. To understand this, we need to explain how fair housing litigation works. Resist the temptation to skip this analysis! While it may sound like a bunch of legal jargon, we assure you that it has enormous practical significance for any landlord sued for discrimination.

The way the process works: The unhappy applicant, tenant, or other plaintiff files a complaint alleging that the landlord violated the FHA. After replying to the complaint, the defendant/landlord typically makes a motion for what’s called summary judgment, basically a ruling in its favor without a trial. The argument: There’s no point in holding a trial because even if everything the plaintiff alleges is true, we still wouldn’t be guilty of an FHA violation.

Example: A rental applicant claims he was rejected because he’s a Dallas Cowboys fan. A court would likely award summary judgment to the landlord because rooting for a particular football team isn’t a protected class under the FHA.

Another variation of summary judgment is when the legal claim is valid but there’s already enough evidence for the court to rule on it without a trial. Thus, plaintiffs as well as defendants can seek summary judgment.

As with most litigation, the key question in a fair housing case is whether the plaintiff can survive a defendant’s motion for summary judgment. Ruling against the landlord/defendant isn’t a final ruling on the merits. It just means that the plaintiff has enough of a case to get the right to go to trial and prove its claims. But in the real world, summary judgment is the turning point. Winning on summary judgment enables the landlord to put the case behind it (although the plaintiff can appeal). Denial of summary judgment puts the plaintiff in the driver’s seat and forces the landlord to make a tough decision: Risk a trial or pay out money to settle the case.

Thus, all but two of the cases in the 2022 Scorecard involved a summary judgment ruling.

6 KEY LESSONS FROM SCORECARD CASES

We found 70 reported 2022 cases in which a federal court had to decide whether a housing provider committed housing discrimination against a rental prospect or tenant. Of these, the landlord was found liable in 31 cases and not liable in 35; four of the cases were split decisions. Here’s a breakdown of the key cases and their practical implications for your own compliance efforts.

Lesson #1: Charging Pet Deposits for Service Animals Is Disability Discrimination

As in previous years, disability was the most common ground of discrimination alleged in 2022 Scorecard Cases. And roughly two of every three disability discrimination complaints against landlords involved failure to make reasonable accommodations. Not surprisingly, assistance animals were the most frequently requested accommodation.

The FHA requires landlords to make reasonable accommodations “necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.” Waiving a no-pets rule so that a rental applicant or tenant with disabilities can keep an assistance animal is the classic example of a reasonable accommodation. One key question is whether landlords can demand a fee or extra security deposit to cover the damage an assistance animal might do.

Situation: A landlord with a no-pets policy allows a tenant with mental disabilities to keep her emotional support animal, a dog named Benji. However, having Benji around increases the landlord’s risk of apartment damage beyond ordinary wear and tear. So, the landlord requires the tenant to pay an extra $700 security deposit for keeping the dog in the apartment.

You Make the Call: Did the landlord violate its duty to make reasonable accommodations?

Answer: Yes

Ruling: The California federal court denied the landlord’s motion for summary judgment. Coupled with statements threatening to evict the tenant for keeping a pet, the imposition of an extra security deposit for having an assistance animal constituted disability discrimination [Johnson v. Birks Props., LLC, 2022 U.S. Dist. LEXIS 5662, 2022 WL 104736].

Takeaway: HUD Guidelines expressly state that you can’t make individuals with disabilities pay extra fees or deposits as a condition for receiving a requested accommodation. That includes charges for an assistance animal necessary to assist a person with a disability. In other words, if it’s reasonable for the applicant or tenant to have the animal, you must allow it without any additional charges.

However, what you can do is hold the tenant responsible for any actual damage the animal does to the apartment after the lease ends. You can also hold the tenant accountable if the animal violates building rules, such as by creating a danger or nuisance to others in the building.

Lesson #2: Allowing Only Registered Service Animals Is Discrimination

Whether allowing an assistance animal is reasonable depends on whether:

  • The applicant/tenant has a disability—that is, a physical or mental impairment that substantially limits one or more major life activities;
  • The animal serves the applicant/tenant’s disability-related need; and
  • The animal is actually an assistance animal.

A Pennsylvania case provides an excellent illustration of the third prong of this test.

What Happened: A landlord won’t make exceptions to its no-pets policy for tenants with disabilities unless the pet is a registered service animal. The DOJ sues, claiming that the landlord’s refusal to accept an emotional support animal that’s not registered as a service animal violated its duty to make reasonable accommodations.

You Make the Call: Did the landlord’s willingness to accept only registered service animals violate its FHA duty to make reasonable accommodations?

Answer: Yes

Ruling: The Pennsylvania federal court found that the DOJ had a legally valid claim and could go to trial. The landlord’s assertion that allowing registered service animals was a reasonable accommodation to a no-pets policy didn’t fly, especially since it required applicants with emotional support animals to get rid of their pets and get a different animal [United States v. Perry Homes, Inc., 2022 U.S. Dist. LEXIS 87064, 2022 WL 3021040].

Takeaway: The landlord might have won had the case been decided under the Americans with Disabilities Act (ADA). Like the FHA, the ADA requires accommodations for animals that people need to cope with a disability. But while the FHA applies to “assistance animals,” the ADA requirement covers “service animals.” While the terms may sound the same, there are significant legal differences:

  • “Service animals” covered by the ADA are limited to dogs that have been trained to do work or perform tasks for a person with a disability;
  • “Assistance animals” for which accommodations are required under the FHA is defined broadly as any animal “that works, provides assistance, or performs tasks for the benefit of a person with a disability, or that provides emotional support that alleviates one or more identified effects of a person’s disability,” regardless of weight, breed, or special training or certification.

Example: A stray cat a tenant adopts off the street would be an “assistance animal” under the FHA but not a “service animal” under the ADA. For landlords and apartment communities, the operative law is the FHA and the duty to make reasonable accommodations for assistance animals; the ADA applies to other places that are accessible to the public, like movie theatres, shopping malls, hotels, restaurants, and other venues.

Lesson #3: Enforcing Reasonable Occupancy Standards Isn’t Family Status Discrimination

Occupancy standards limiting the numbers of individuals who can live in an apartment may be vital to prevent overcrowding, maintain proper sanitation, and avoid overtaxing the building infrastructure. But they can also get you into trouble under the FHA because, while neutral on their face, they have the effect of excluding families with children.

Situation: A condo association with an occupancy standard requiring at least 250 square feet per resident refuses to rent a unit to a family with four kids. The family sues for discrimination.

You Make the Call: Did the condo association commit family status discrimination?

Answer: No

Ruling: The Louisiana federal court granted the landlord’s motion for summary judgment, finding that the occupancy standard was reasonable and necessary to preserve the community’s limited water pipe infrastructure [Treece v. Perrier Condo. Owners Ass'n, 2022 U.S. Dist. LEXIS 51775, 593 F. Supp. 3d 422, 2022 WL 860418].

Takeaway: Occupancy standards aren’t discriminatory if they’re “reasonable.” Based on HUD guidelines and previous court cases, we know that two-per-bedroom is generally presumed to be reasonable but that standards can also be more or less restrictive based on:

  • The size of the bedrooms: Thus, rejecting a family of five for a two-bedroom apartment might be unreasonable if at least one of the bedrooms is large enough to accommodate three persons;
  • The apartment’s size and configuration: Thus, two-per-bedroom may be too restrictive for an apartment with a den that can be easily converted into a bedroom; and
  • Physical limitations on the property or building systems: Standards more restrictive than two-per-bedroom may be reasonable when the capacity of water, sewer, sanitation, electrical, HVAC, and other critical building systems is limited, as in the Treece case.

Lesson #4: Blanket Criminal Record Exclusions May Be Racial Discrimination

As a landlord, you have a responsibility to ensure your community is safe and secure. So, you might feel uncomfortable about leasing to persons who have a criminal background. And, because the FHA doesn’t say anything about criminal background, a policy excluding such persons is perfectly legal. Or is it?

Situation: A fair housing advocacy group claims that an apartment community’s blanket policy of excluding all applicants with any criminal history is illegal discrimination.

You Make the Call: Is the policy of excluding all persons with a criminal history discriminatory under the FHA?

Answer: Yes

Ruling: The Louisiana federal court ruled that the organizations had a valid claim for racial discrimination under the FHA. Explanation: Although criminal history isn’t a protected class, statistics show that a disproportionate number of African Americans are arrested and incarcerated in the U.S., as compared to white persons. This was especially true in the parish where the apartment community in this case was located [La. Fair Hous. Action Ctr. v. Azalea Garden Props., LLC, 2022 U.S. Dist. LEXIS 77083, 2022 WL 1262642].

Takeaway: In the view of HUD and many courts, a blanket exclusion based on criminal history, while neutral on its face, has a discriminatory impact based on race. By the same token, HUD and DOJ guidelines also say that landlords can reject or evict a person that poses a “direct threat” to the health and safety of other tenants. Rule: Having a criminal record isn’t automatic proof that a person is a direct threat. You must do an individualized assessment of each case based on:

  • How long ago the conviction occurred;
  • The nature of the crime for which the person was convicted—arrests without a conviction don’t count;
  • Evidence of rehabilitation; and
  • Other evidence related to whether the person poses a threat to safety.

Lesson #5: You Can Require Tenants to Pay for Reasonable Modifications

The duty to make reasonable accommodations may require not only changes to your rental policies and practices but also physical alterations or modifications that a tenant with disabilities needs to get full use and enjoyment of the premises. But these modifications can be expensive. And that begs a question: Can you make tenants with disabilities pay some or all of the costs?

Situation: A wheelchair-bound applicant gives the landlord an extensive—and expensive—list of bathroom and other modifications he claims he needs. The estimated cost: $31,000. The landlord asks the applicant to pay $12,000, but he refuses and never signs a lease. He later sues for disability discrimination.

You Make the Call: Does the applicant have a valid claim for failure to make reasonable accommodations?

Answer: No

Ruling: The California federal court dismissed the claim without a trial. The FHA duty to make reasonable accommodations doesn’t say that the landlord must make substantial modifications at its sole expense, the court explained [Mengistu v. Forestview Apts., LLC, 2022 U.S. Dist. LEXIS 107172, 2022 WL 2159257].    

Takeaway: There’s a difference between reasonable accommodations and reasonable modifications:  

  • Reasonable Accommodations are changes, exceptions, or adjustments to a landlord’s current rules, policies, or practices that a person with disabilities needs to get equal opportunity to use and enjoy a dwelling, such as exemptions from a no-pets policy for a service animal. Rule: Accommodations must be made at the landlord’s expense without charging the tenant fees or deposits.

  • Reasonable Modifications are structural changes so that a person with a disability can have full use and enjoyment of the premises, such as installation of grab bars in a bathroom. Rule: Under the FHA, landlords must make reasonable modifications at the expense of the person with disabilities. However, under other federal laws—namely, Section 504 of the Rehabilitation Act and the ADA—landlords must make reasonable modifications at their own expense.

Lesson #6: Landlords Are Liable for Discrimination of Managers, Leasing Agents, and Other Staff

There are two basic ways you can be liable for housing discrimination:

  • You commit discrimination personally; and/or
  • Your agents commit discrimination in the course of carrying out their employment duties or otherwise pursuing your interests.

The latter is known as “vicarious liability,” and a recent case from Mississippi is an excellent example of how it can play out in the fair housing context.

Situation: A leasing agent makes a host of “disturbing statements” to testers making it clear that Black people aren’t welcome at the property. The DOJ sues the landlord for racial discrimination. I didn’t do it; the leasing agent did, the landlord replies.

You Make the Call: Is the landlord liable for the leasing agent’s discriminatory statements?

Answer: Yes

Ruling: Appalled that HUD actually dismissed the case for no reasonable cause, the Mississippi federal court rejected the landlord’s motion for summary judgment, concluding that the leasing agent was acting as the landlord’s agent [United States v. SSM Props., LLC, 2022 U.S. Dist. LEXIS 137648, 2022 WL 3093285].

Takeaway: Although the FHA doesn’t mention vicarious liability, HUD and the courts have historically held landlords liable for offenses committed by their leasing, managing, and other agents. This is true regardless of whether the person knew or should have known of the conduct.

Vicarious liability is most often an issue in harassment cases. While prevention is the priority, you also need to be prepared in case any of your agents do engage in harassment or other discriminatory conduct. How? The starting point is to create a mechanism that applicants and tenants who suffer discrimination at the hands of one of your staff members can use to report to you. Create a report template for victims and management to fill out listing key information about the incident, including:

  • The date and time it occurred;
  • Where it occurred;
  • The parties involved;
  • A description of the incident; and
  • The names and contact information of any witnesses.

SCORECARD CASES

Here’s a summary of the reported 2022 federal court cases in which a landlord was sued for discrimination under the FHA.

LANDLORD WINS

(Cases 1 to 8)

1. Bureaucratic Negligence Is Frustrating but Not Discriminatory

What Happened: A New York City tenant with a son with disabilities requests to transfer to a larger apartment. She’s put on a waiting list, entered into a lottery, and required to do a ton of paperwork. The process drags on for years. The landlord ultimately denies the request because she doesn’t meet the income requirements for a two-bedroom apartment.

Ruling: HUD and the New York Department of Human Rights find no reasonable cause to believe discrimination occurred. The court agrees and tosses the case. “At its core, this is a case about bureaucratic negligence, but as understandably frustrating as that negligence was, it did not amount to discrimination,” the court reasons, noting that the landlord exhibited no animus toward persons with disabilities or even knew that the tenant’s son was disabled [Skorupska v. 525 West 52 Prop. Owner LLC, City of N.Y., 2022 U.S. Dist. LEXIS 158588, 2022 WL 3997781].

2. FHA Doesn’t Ban Source of Income Discrimination

What Happened: An applicant living in a homeless shelter seeks Section 8 housing rental assistance. Because the funding he receives isn’t enough to meet its income requirements, the landlord requires the applicant to have somebody co-sign the lease. The applicant says this is impossible and sues the landlord for discriminating based on his status as a Section 8 income recipient.

Ruling: The New York federal court dismisses the complaint without a trial, noting that source of income isn’t a protected ground under the FHA [Kaiser v. Fairfield Props., 2022 U.S. Dist. LEXIS 25205, 2022 WL 17412405].

3. FHA Doesn’t Include a Warranty of Habitability

What Happened: A Black tenant is unhappy with the way the landlord handled a water leak into his apartment originating from the unit of an upstairs neighbor. So, he sues the landlord for racial discrimination.

Ruling: The Indiana federal court tosses the case because the FHA simply bans housing discrimination and doesn’t establish a right to “a habitable home.” As for the tenant’s other allegations, they’re all based on state law; and since the landlord and tenant both come from Indiana, i.e., there’s no diversity of citizenship, the federal court doesn’t have jurisdiction over the claims [Northern v. Pedcor Mgmt. Corp., 2022 U.S. Dist. LEXIS 83267, 2022 WL 1449610].

4. Tenants Without Kids Can’t Sue for Family Status Discrimination

What Happened: Tenants take their 19-month-old granddaughter to the community pool, but the lifeguard orders her out because she’s wearing a swim diaper. The tenants claim the homeowners’ association discriminated against the child and her parents.

Ruling: The Florida federal court rules that the tenants don’t have “standing,” or legal status to sue for family status discrimination, because they personally suffered no harm from the alleged discriminatory pool rule. The grandchild and her parents who were allegedly harmed were guests who don’t actually live in the community, the court explains [Yeager v. Hunters Run Prop. Owners Ass'n, 2022 U.S. Dist. LEXIS 118544, 2022 WL 2805607].  

5. Enforcing Reasonable Occupancy Standard Isn’t Family Status Discrimination

What Happened: A condo association with an occupancy standard requiring at least 250 square feet per resident refuses to rent a unit to a family with four kids. The family sues for disparate impact familial status discrimination.

Ruling: The Louisiana federal court dismisses the claim without a trial. The occupancy standard is a reasonable and necessary rule to preserve the community’s limited water pipe infrastructure, the court says [Treece v. Perrier Condo. Owners Ass'n, 2022 U.S. Dist. LEXIS 51775, 593 F. Supp. 3d 422, 2022 WL 860418].

6. Alleged Failure to Maintain Entire Building Isn’t Discrimination Against Any One Tenant

What Happened: Between the bedbugs, trash in the common areas, prostitution, meth labs, and a stolen car “chop shop” operation, this apartment community is totally uninhabitable, claims a transgender tenant in her FHA discrimination lawsuit.    

Ruling: The Oregon court rules that she doesn’t have a valid legal claim and tosses the case. Suing for transgender discrimination under the FHA was okay as an extension of the law’s ban on “sex” discrimination. The problem is that if the landlord did commit negligence in maintaining the building, it did so against all tenants without singling her out. And while she contended that she was harassed for being transgender, her complaint didn’t claim that the landlord was responsible for the harassment [Gibson v. Cmty. Dev. Partners, 2022 U.S. Dist. LEXIS 189828, 2022 WL 10481324].

7. No Evidence that Landlord’s False Accusation of Black Tenant Is Racial Discrimination

What Happened: A building security guard falsely accuses a Black tenant of taking a cabinet that another tenant left in the trash room without realizing that it contained her jewelry box. “Return the jewelry box, or I’ll call the cops!” She doesn’t, and he does. The tenant is ultimately cleared but also understandably humiliated. So, she sues the landlord for racial harassment, citing its supposed history of discrimination and the fact that she’s one of the only Black tenants in the building.   

Ruling: The New York federal court tosses the claim without a trial. The tenant’s contention that she was singled out because she was Black was just speculation, the court reasons. There was no evidence that the treatment she suffered at the hands of the security guard, even if disrespectful or aggressive, was “motivated by racial hostility” [Dickerson v. BPP PCV Owners LLC, 2022 U.S. Dist. LEXIS 176675, 2022 WL 4538281].    

8. Landlord Need Not Make Substantial Apartment Modifications at Its Sole Expense

What Happened: A wheelchair-bound applicant gives the landlord an extensive—and expensive—list of bathroom and other modifications he says he needs to have full enjoyment of the apartment. But the sides don’t reach an agreement on who should pay the $30,000 for the modifications and the applicant doesn’t sign a lease. He then sues the landlord for failure to make reasonable accommodations.    

Ruling: The California federal court tosses the claim without a trial, noting that the applicant didn’t offer to pay any of the costs of the modifications. The FHA duty to make reasonable accommodations doesn’t say that the landlord must make substantial modifications at its sole expense, the court explains [Mengistu v. Forestview Apts., LLC, 2022 U.S. Dist. LEXIS 107172, 2022 WL 2159257].

LANDLORD LOSES

(Cases 9 to 16)

9. Blanket Exclusion of Applicants with Criminal Backgrounds Is Racial Discrimination

What Happened: A fair housing advocacy group claims that an apartment community’s blanket policy of excluding all applicants with any criminal history, regardless of the age and nature of the conviction, evidence of rehabilitation, or any other factors related to whether the person poses a threat to safety is illegal discrimination. The landlord contends the claim is legally invalid because criminal history isn’t a protected class under the FHA.

Ruling: The Louisiana federal court says the claim is valid and can go to trial. True, criminal history isn’t a protected class. However, the court continues, statistics show that a disproportionate number of African Americans are arrested and incarcerated in the U.S., as compared to white persons. This is especially true in the parish where the apartment community in this case is located. So, a blanket exclusion based on criminal history, while neutral on its face, has a discriminatory impact on the basis of race [La. Fair Hous. Action Ctr. v. Azalea Garden Props., LLC, 2022 U.S. Dist. LEXIS 77083, 2022 WL 1262642].

10. Charging Extra Security Deposit for Emotional Support Animal Is Disability Discrimination

What Happened: A landlord allows a tenant with mental disabilities to keep her emotional support animal, a dog named Benji, in the apartment but requires her to pay an extra $700 security deposit. A property manager also threatens not to renew her lease because she’s violating the community’s no-pets policy.  

Ruling: The California federal court refuses to dismiss the case. The fact that the tenant has disabilities and needs a support animal, coupled with the manager’s threatening statements (“When your lease comes back around, I’m not going to want a dog on the property. I don't want animals on my property, then everybody else is going to think they can have animals on the property.”) are ample evidence to warrant a trial for disability discrimination, the court concludes [Johnson v. Birks Props., LLC, 2022 U.S. Dist. LEXIS 5662, 2022 WL 104736].

12. Allowing Only Registered Service Animals Is Disability Discrimination

What Happened: A legal aid society learns via the use of testers that a landlord won’t make exceptions to its no-pets policy for tenants with disabilities unless the pet is a registered service animal. The DOJ sues, claiming that the landlord’s refusal to accept unregistered emotional support animals is a violation of its duty to make reasonable accommodations.

Ruling: The Pennsylvania federal court finds the claim legally valid. The landlord’s assertion that allowing registered service animals is a reasonable accommodation to a no-pets policy isn’t enough to conclusively refute the claim, especially since it requires applicants with support animals to get rid of their pets and get a different animal. At this point, neither side has a no-doubt case against the other. As a result, the case must go to trial [United States v. Perry Homes, Inc., 2022 U.S. Dist. LEXIS 87064, 2022 WL 3021040].

12. They Said/They Said Racial Harassment Case Can Go to Trial

What Happened: Instead of the dream home they imagined, the property purchased by the only Black couple at a subdevelopment turns into a nightmare. First, the couple next door makes it a point to let them know that they’re not welcome and allegedly subjects them to a steady stream of racial slurs. Next comes a series of ugly, and ultimately personal confrontations with the homeowners association (HOA) over the privacy fence the couple wants to build but which obstructs another neighbor’s view. The couple sues the neighbors and HOA for interfering with their use and enjoyment of the property based on race. The defendants acknowledge the conflict but deny committing any racial discrimination.

Ruling: The Indiana federal court refuses to dismiss the case. “Repeated use of racist language is the quintessential example of interference that establishes a pattern of harassment” interfering with the use of property, the court reasons. While a single remark may not be enough, the evidence suggests that the neighbors used racially inappropriate language on at least three occasions. There’s also evidence that members of the HOA used racial epithets. All in all, a trial would be necessary to sort it all out and determine what actually happened [Watters v. Homeowners' Ass'n, 48 F.4th 779, 2022 U.S. App. LEXIS 25498].

13. Refusal to Provide Deaf Applicant Sign Language Interpreter Costs Landlord $100,000

What Happened: A landlord refuses a deaf applicant’s accommodations request for an American Sign Language (ASL) interpreter and instead offers to provide him a whiteboard and/or lipreading services for use in communicating. After hearing all the evidence, a jury rules in the applicant’s favor and awards him $100,000 in punitive damages. The landlord claims the jury got it wrong and asks the court to overturn the verdict.  

Ruling: The Arizona federal court nixes the landlord’s motion. The jury’s determination that the landlord’s refusal to provide the applicant an ASL interpreter violated the landlord’s duty to make reasonable accommodations necessary to enable the applicant to get full use and enjoyment of the premises was reasonable, the court concludes, leaving both the verdict and punitive damages award in place [Sw. Fair Hous. Council v. WG Scottsdale LLC, 2022 U.S. Dist. LEXIS 140702, 2022 WL 3155113].

14. Court Blocks Eviction of Tenant for Keeping an Assistance Animal

What Happened: A landlord seeks to evict a tenant who has an assistance animal to help monitor her severe diabetes. The tenant sues for disability discrimination and asks the court to issue a temporary restraining order (TRO) barring the eviction until the underlying disability claim is adjudicated.

Ruling: The Kentucky federal court grants the TRO. It’s hard to persuade courts to issue a TRO, but the tenant in this case met all four of the necessary standards:

  • Likelihood of Success: The tenant was likely to win on the merits because she has a disability and making an exception to a no-pets policy for an assistance animal is generally considered a reasonable accommodation required by the FHA;
  • Irreparable Harm: The TRO was necessary to protect the tenant from irreparable harm—namely, the loss of her housing;
  • Harms to Third Parties: The potential harms to the tenant significantly outweighed any potential for harm to the landlord; and
  • Public Interest: Penalizing and preventing housing discrimination against persons with disabilities was a compelling public interest justifying the issuance of a TRO [Dinter v. Rok Miremami, 2022 U.S. Dist. LEXIS 180223, __ F.Supp.3d __].

15. Discrimination to Impose Surcharges for Disability Parking

What Happened: A group of fair housing organizations from multiple states sues a seniors housing landlord for discriminating against elderly, mobility-impaired tenants by, among other things:

  • Refusing to provide reserved parking and instead implementing a first-come, first-served parking policy;
  • Charging $350 for designated parking provided as a reasonable accommodation;
  • Asking tenants whose disabilities are obvious to provide excessive medical documentation when requesting accessible parking spaces; and
  • Charging an extra $15 to $25 per month in rent for apartments near elevators that are disproportionately needed by tenants with disabilities.

Ruling: The New York federal court denies the landlord’s request to dismiss the case without a trial. Refusal to waive the kinds of surcharges and fees involved in this case would constitute a violation of the landlord’s duty to make reasonable accommodations for persons with disabilities. So, the organizations deserved an opportunity to prove their claims at trial [CNY Fair Hous., Inc. v. Welltower Inc., 588 F. Supp. 3d 282, 2022 U.S. Dist. LEXIS 34960, 2022 WL 595695].

16. Landlord Is Liable for Leasing Agent’s Discriminatory Statements

What Happened: A case reminding us that old-fashioned, in-your-face racial discrimination still exists involves a rental agent who made it plain that the landlord she worked for didn’t want Black people living in the property. The complaint cites a laundry list of “disturbing statements” made by the leasing agent to Black testers revealing “an extensive pattern of race discrimination and steering.” Examples: “You’re not what I expected. . . . I don’t even know why you’re here,” upon meeting a tester after a phone conversation. Even more cringe-worthy: “I can’t put you at Pearl Manor. Them old men will have a heart attack. They’ll be thinking I done let the zoo out again.” HUD investigates and, “incredibly” (the court’s words, not ours), finds no reasonable cause to believe discrimination occurred. So, the groups appeal to the Mississippi federal court.   

Ruling: The court refuses to dismiss the case. The landlord’s only real defense is that if any discrimination occurred, it was the leasing agent who committed it. But that argument is a total nonstarter, the court explains, noting the longstanding principal that landlords are vicariously liable for the discriminatory actions and statements of their agents [United States v. SSM Props., LLC, 2022 U.S. Dist. LEXIS 137648, 2022 WL 3093285].

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