Complying With Laws Protecting Military Service Members And Veterans

This month's lesson discusses federal, state, and local laws protecting military service members, veterans, and their families. In the context of fair housing, the laws in some states and municipalities specifically list military or veteran status as a protected characteristic, and some fair housing experts believe those protections are likely to be adopted on the federal level in the near future.

Meanwhile, the large number of returning veterans with a wide variety of service-related disabilities—including physical, psychological, and cognitive impairments—are entitled to protection under current federal fair housing law. Among other things, fair housing law requires communities to respond properly to reasonable requests for accommodations or modifications to meet the disability-related needs of returning service members.

In this month's lesson, we'll explain how fair housing law applies to military service members and returning veterans and give you six rules to help you comply with your legal obligations. Then, you can take the COACH's Quiz to see how much you have learned. And this month, in the Legal Update, we'll also provide an overview of other federal laws that your community must comply with when dealing with military service members and returning veterans.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) prohibits discrimination in housing based on race, color, religion, national origin, sex, disability, and familial status. Although the FHA does not provide specific protections based on military or veteran status, fair housing attorney Avery Friedman expects that to change as the number of veterans returning from Iraq and Afghanistan continues to grow. F. Willis Caruso, Esq., co-executive director of the John Marshall Law School Fair Housing Legal Support Center and Clinic, agrees. Even in a divided Congress, Caruso believes that there will be a consensus to add military or veteran status to the list of protected characteristics under federal fair housing law.

Meanwhile, some state and local government officials have adopted laws to ban housing discrimination based on military or veteran status. In New York, the law prohibits discrimination based on military status, while in Massachusetts, the law prohibits housing discrimination against an individual because “such person is a veteran or member of the armed forces.” And, in Illinois, the list of protected characteristics under the state's human rights law includes military status as well as “unfavorable discharge from military service,” which generally applies to individuals who have been separated from the service with less than an honorable discharge, but excludes those with a dishonorable discharge.

In 2007, Washington state amended its antidiscrimination law to ban discrimination based on honorably discharged veteran and military status in employment, housing, and public accommodations. The city of Seattle added similar protections on the local level last summer.

And in 2008, Ohio lawmakers added military status to the protected classes under the state's fair housing laws.

“With the large number of veterans returning from Iraq, Afghanistan, and other places where the American military serve, it is especially important to protect their rights to jobs, places to live, and services,” according to a 2007 statement by the Washington Human Rights Commission. The commission noted that “a few unscrupulous employers, housing providers, and public accommodations have harmful, preconceived, and stereotyped notions about veterans and people serving in the military.”

According to guidance issued by the commission, the law prohibits communities from negatively considering veteran or military status when making housing-related decisions. For example, the commission says it is unlawful for a community to deny housing to a member of the armed forces or reserves based on the assumption that he or she may be called to active duty before the terms of the lease are completed.

Fair housing protections for disabled veterans. Although military or veteran status is not a protected characteristic under the FHA and laws in most states, communities should be prepared for the increasing number of veterans who will qualify under federal, state, and local laws banning discrimination based on disability.

Communities should be prepared to accommodate the disability-related needs of thousands of veterans who are returning from Iraq and Afghanistan, many of whom have lost a limb or been severely burned or blinded. Others have been diagnosed with hearing loss, post-traumatic stress disorder (PTSD), or traumatic brain injuries (TBIs). Federal officials explain that advances in military medicine and protective equipment have led to increased numbers of service members who survive the injuries they sustain on the battlefields. Statistics vary, but federal officials say that hundreds of thousands of military service members will be coping with the challenges of TBI and PTSD as they reenter civilian life, today and for many years to come. (See “What Are TBI and PTSD?” for more information on these conditions.)

6 RULES FOR COMPLYING WITH LAWS PROTECTING MILITARY SERVICE MEMBERS AND VETERANS

Rule #1: Consider Voluntary Policy to Ban Discrimination Based on Veteran Status

Although the FHA does not list military or veteran status among the protected classes, your community may go beyond what is strictly required under federal law by voluntarily adopting a ban on housing discrimination against military service members and veterans. Such a policy could help you fight off any claim of discrimination based on stereotypes or other improper motives by demonstrating your community's commitment to fair housing principles.

An expansive nondiscrimination policy could also boost your marketing efforts. For example, you could generate increased occupancy by focusing marketing efforts on military service members, veterans, and their families. Or you could launch a general marketing campaign to call attention to your community's progressive and fair-minded policies and procedures. Emphasizing that you treat all people fairly and with appropriate respect could be used to attract prospects to your community.

Rule #2: Comply with State and Local Laws Protecting Veteran Status

Get to know state and local laws applicable to your community. The laws in a number of states, including Illinois, Massachusetts, New York, Ohio, and Washington, as well as many municipal and county governments have expanded fair housing protections for military service members or veterans.

If subject to state or local laws banning discrimination based on military or veteran status, then you'll need to review your policies and procedures to ensure compliance with legal requirements. It's a good idea to ask your attorney about the specifics of the laws in your state and local area because of variations in the language used.

Finally, stay on top of proposed changes to antidiscrimination laws on the state and local level. Though the list of protected classes under federal law hasn't changed since 1988, many state and local governments have actively expanded fair housing protections beyond the seven characteristics covered under federal law. You should be able to get updates on what's happening on the state and local levels from your attorney or local apartment association.

Rule #3: Recognize Fair Housing Protections for Veterans with Disabilities

Regardless of whether military status is protected under the law in your state or local area, military service members and veterans may be entitled to protection under other provisions of fair housing law.

Most notably, veterans with service-connected injuries may qualify as individuals with disabilities under fair housing law. The FHA prohibits communities from excluding or otherwise discriminating against prospects, applicants, and residents because of their disability as well as the disability of anyone associated with them, such as family members or others in their household.

The FHA defines “disability” as a physical or mental impairment that substantially limits one or more major life activities. According to HUD regulations, “physical or mental impairment” includes any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more specified body systems. Therefore, it would cover both physical injuries sustained in battle—such as loss of limbs, TBIs, burns, and hearing loss—as well as mental or psychological disorders—such as PTSD and depression.

Furthermore, a returning veteran may be covered under the disability protections even if he does not now have—or ever had—a physical or mental impairment that substantially limits a life activity. The FHA's definition of disability protects individuals who are “regarded as” having such an impairment, so a community could trigger a fair housing complaint for discriminating against a prospect based on preconceived notions about emotional problems faced by some veterans making the transition from military service to civilian life.

COACH'S TIP: A veteran with a service-connected disability is not automatically considered disabled under federal antidiscrimination laws. The FHA, like the Americans with Disabilities Act (ADA), defines an “individual with a disability” as a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.

This definition of disability may differ from the definition used in other laws, according to the Equal Employment Opportunity Commission (EEOC), which enforces the ADA's ban on employment discrimination against individuals with disabilities. As an example, the EEOC points to another federal law that defines the term “disabled veteran” as an individual who has served on active duty in the armed forces, was honorably discharged, and has a service-connected disability, or is receiving compensation, disability retirement benefits, or a pension because of a public statute administered by the Department of Veterans Affairs or a military department.

The fact that a veteran meets that definition does not automatically mean he or she is protected under the FHA or ADA. Nevertheless, the EEOC says that many veterans who were wounded or became ill while on active duty meet both the definition of “disabled veteran” and the ADA's (and, since they are the same, the FHA's) definition of “individual with a disability.”

Rule #4: Allow Reasonable Modification Requests by Disabled Veterans

Under fair housing law, it is unlawful to refuse to permit, at the expense of a person with a disability, reasonable modifications of existing premises, occupied or to be occupied by a person with a disability, as necessary to afford him full enjoyment of the premises.

In general, these provisions require communities to consider allowing a current or prospective resident to make structural changes to the interior or exterior of units and to common and public use areas when there is an identifiable relationship between the requested modification and the individual's disability. For example, it would be unlawful for a community to refuse to permit the installation of a ramp by a veteran whose service-related mobility disorder requires the use of a wheelchair.

Under the FHA, the resident is responsible for paying the cost of the modification. Nevertheless, Caruso warns that a community could get into trouble for denying a reasonable modification request simply because a disabled veteran is relying on public or private funding to pay for the modification. There are several programs available to help disabled veterans with accessibility needs, according to Caruso, who cautions against refusing to permit a requested modification out of concerns about bureaucratic red tape or delayed payment for the work.

Rule #5: Carefully Consider Reasonable Accommodation Requests by Disabled Veterans

If a returning veteran qualifies as an individual with a disability, then you may be required to grant a request for a reasonable accommodation in rules, policies, practices, or services as necessary to allow him an equal opportunity to fully enjoy his dwelling. For example, the law generally would require a community with unassigned parking to grant a request for an assigned parking space as a reasonable accommodation for a returning veteran who sustained a service-connected mobility impairment.

But it's more challenging to handle accommodation requests when either the disability or the disability-related need for the accommodation is not known or obvious. If the nature of the disability is not apparent, then HUD-Department of Justice (DOJ) guidelines state that you may ask for reliable disability-related information to verify that the person meets the FHA's definition of disability—that is, has a physical or mental impairment that substantially limits one or more major life activities. Likewise, you can ask for more information if there is no identifiable disability-related need for the requested accommodation. Such cases can be difficult to handle, however, so it's best to get legal advice to avoid triggering a costly fair housing complaint.

Example: In 2007, a California community agreed to pay $70,000 to resolve a case involving a disabled veteran who allegedly had PTSD and required the use of a service animal. According to a statement by the California Department of Fair Employment and Housing, the resident lived in the community for 20 years, and in 1998, his physician prescribed a service animal to provide emotional support and improve his ability to function within his home-bound environment. After a dispute with the management, he was evicted in 2004; allegedly, the community had received complaints from other residents concerning the resident's service dog, a pit bull terrier.

After he filed a complaint, state officials filed administrative legal proceedings against the community for allegedly denying the resident a reasonable accommodation for his mental disability and evicting him in retaliation for asserting his right to an accommodation. With no admission of liability, the community settled the case by paying the resident $70,000 and providing fair housing training to its staff at its own expense.

“This case serves as an excellent reminder to California housing providers that service animals are not considered ‘pets’ under the Fair Employment and Housing Act,” DFEH Director Suzanne M. Ambrose said in a statement. “Housing providers have an affirmative obligation to engage in an interactive process with a tenant or prospective tenant who requests that his/her service animal be permitted to reside with him/her in the subject housing accommodation and provide that reasonable accommodation, absent a specific legal justification for not granting the request.”

Rule #6: Seek Expert Advice for Handling Residents with Mental Disabilities

Fair housing law prohibits housing discrimination against veterans with PTSD or other mental impairments based on an unfounded fear of violent or disruptive behavior. In fact, the myth that people with PTSD are violent or unpredictable is one of the most prominent barriers to acceptance and social inclusion, according to government officials.

Nevertheless, the law does not prevent communities from responding to actual incidents of dangerous or violent behavior by a resident, even if he has a disability. According to HUD-DOJ guidelines, the FHA does not protect an individual whose tenancy would constitute a direct threat to the health and safety of other individuals or result in substantial physical damage to the property of others unless the threat can be eliminated or significantly reduced by reasonable accommodation.

A community facing these issues should always get legal advice before taking action, says Caruso. He notes that many legal clinics and veterans groups have contacts with experts who can provide assistance in such cases.

• Fair Housing Act: 42 USC §3601 et seq.

• HUD guidance: Reasonable Accommodations Under the Fair Housing Act, www.hud.gov/offices/fheo/library/huddojstatement.pdf.

• HUD guidance: Reasonable Modifications Under the Fair Housing Act, www.hud.gov/offices/fheo/disabilities/reasonable_modifications_mar08.pdf.

• Servicemembers Civil Relief Act of 2003: 50 USC App. §501 et seq.

• Uniformed Services Employment and Reemployment Rights Act of 1994: 38 USC §4301 et seq.

COACH Sources

F. Willis Caruso, Esq.: Co-Executive Director, The John Marshall Law School Fair Housing Legal Support Center and Clinic, 321 S. Plymouth Ct., Ste 800, Chicago, IL 60604; (312) 786-9842; 6Caruso@jmls.edu.

Avery Friedman, Esq.: Chief Counsel, Fair Housing Council, 705 The City Club Bldg., 850 Euclid Ave., Cleveland, OH 44114-3358; (216) 621-9282; averyfriedman@fairhousingtraining.com.

Sidebar

TIME OUT!

What Are TBI and PTSD?

In efforts to ease the transition to civilian life by veterans returning from Iraq and Afghanistan, the federal government has placed a special emphasis on traumatic brain injuries (TBI) and post-traumatic stress disorder (PTSD). The Department of Defense (DoD), the Department of Veterans Affairs (VA), and the Department of Labor (DOL) are among the federal agencies focused on the problems facing returning service members with these conditions.

“What you're seeing is a recognition that each war is different. Each war has ‘its signature injuries,’ and TBI and PTSD are those of Iraq and Afghanistan, where service is characterized by successive deployments and ‘frequent blasts’ from roadside bombs,” according to a 2008 statement by Charles S. Ciccolella, the DOL's then-assistant Labor secretary for Veterans' Employment and Training.

TBI. Increased numbers of veterans have experienced TBIs as a result of the conflicts in Iraq and Afghanistan, according to a fact sheet produced by the VA. Citing government estimates, the VA says that 22 percent of all combat casualties from these conflicts are brain injuries—compared to 12 percent of Vietnam-related combat casualties—and 60 to 80 percent of soldiers who have other blast injuries may also have traumatic brain injuries.

TBIs are characterized by a loss of consciousness from a traumatic event, such as a bomb blast, and ranked according to the nature of the injury as mild, moderate, or severe. Most—about 80 percent—of all TBIs are mild; symptoms immediately after the initial assault include headache, dizziness, insomnia, impaired memory, or lowered tolerance for noise and light. Although most patients with mild TBIs return to their former level of function within three to six months, the VA says that some 10 to 25 percent may go on to develop symptoms in one or more of three categories:

Somatic (affecting the body, such as headache, tinnitus, or insomnia);

Cognitive (relating to thought processes, such as memory, attention, and concentration difficulties); or

Emotional (psychological issues, such as irritability, depression, anxiety, or behavioral problems).

In addition, the VA says that, when compared to the general population, patients who have experienced mild TBIs are at increased risk for psychiatric disorders, including depression and post-traumatic stress disorder.

PTSD. PTSD is an anxiety disorder that can develop in response to exposure to an extreme traumatic event. About 8 percent of the U.S. population (approximately 24 million people) will develop PTSD at some point in their lives, but federal authorities say that PTSD among military veterans is quite common. The DOL reports that about 30 percent of Vietnam War veterans experience PTSD over the course of their lifetimes, and recent statistics suggest that approximately one in five service members who return from deployment operations in Afghanistan and Iraq have symptoms of PTSD or depression.

Some returning service members with PTSD may suffer from memory deficits, lack of concentration, time management issues, disorganization, panic attacks, sleep disturbance, and outbursts of anger, among other challenges, say federal officials. Usually, PTSD symptoms emerge within a few months of the traumatic event, but they say that PTSD symptoms may emerge many months or even years following a traumatic event.