Fair Housing FAQs: Answering Your Questions About Disability Rules

This month, the Coach focuses on fair housing rules based on disability, the most common source of discrimination complaints and lawsuits faced by multifamily housing communities today. At last count, more than half the formal complaints filed with public agencies and private fair housing organizations were based on disability.

We’ve gathered the most frequently asked questions (FAQs) about how to comply with the law—and avoid costly discrimination complaints—when dealing with individuals with disabilities. We’ll review the general rules forbidding disability discrimination and explain who’s covered—and who’s specifically excluded—under the disability provisions of the federal Fair Housing Act. Then we’ll go into specifics, including when and how you may ask applicants and residents for disability-related information. And we’ll delve into the law’s additional protections for individuals with disabilities involving reasonable accommodations, reasonable modifications, and design and construction rules. Finally, you can take the Coach’s Quiz to see how much you’ve learned.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) is a federal law that bans discrimination in housing because of race, color, national origin, religion, sex, familial status, or handicap (disability). The FHA outlaws certain rental practices, if based on any of the seven protected characteristics, including:

• Refusing to rent or negotiate for housing.
• Making rental housing unavailable.
• Using different qualification criteria or applications, such as income standards, application requirements, application fees, credit analysis, or rental approval procedures.
• Setting different terms, conditions, or privileges for the rental of housing, such as different lease provisions related to rental charges, security deposits, and other lease terms.
• Providing different housing services or facilities, such as access to community facilities.
• Failing or delaying maintenance or repairs.
• Falsely denying that housing is available for inspection or rental.
• Discouraging the rental of a unit by exaggerating drawbacks or saying that the prospect would be uncomfortable or incompatible with existing residents.
• Assigning residents to a particular section of a community or floor of a building.
• Threatening, coercing, intimidating, or interfering with anyone exercising a fair housing right or assisting others who exercise that right.
• Making, printing, or publishing any statement that indicates a preference, limitation, or discrimination.

PART 1: DISABILITY BASICS

FAQ #1: How Does Fair Housing Law Protect Individuals with a Disability?

Federal fair housing law bans disability discrimination in housing, so you can’t exclude applicants or residents because of their disability—or the disability of anyone associated with them—or treat people with disabilities less favorably than others because of a disability. Among other things, the law bans unlawful steering—that is, guiding, directing, or encouraging prospects to live in (or not live in) certain sections of the community because of a disability.

But the law goes further to protect individuals with disabilities by imposing affirmative duties on communities to provide reasonable accommodations and modifications as necessary to allow individuals with disabilities to fully enjoy their dwellings. The law also includes accessibility requirements in the design and construction of multifamily communities.

FAQ #2: What Does Disability Mean under Fair Housing Law?

Fair housing law defines “disability” as a physical or mental impairment that substantially limits one or more major life activities. Generally speaking, it means the law protects any individual with a physical or mental impairment that is serious enough to substantially affect activities that are of central importance to daily life.

Under federal guidelines, “physical or mental impairment” includes (but isn’t limited to): orthopedic, visual, speech, and hearing impairments; cerebral palsy; autism; epilepsy; muscular dystrophy; multiple sclerosis; cancer; heart disease; diabetes; Human Immunodeficiency Virus infection; mental retardation; emotional illness; drug addiction (other than addiction caused by current, illegal use of a controlled substance); and alcoholism. Examples of major life activities include seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, and speaking.

FAQ #3: Who Qualifies as an Individual with a Disability under Fair Housing Law?

Under the FHA, an individual with a disability means anyone who has a physical or mental impairment that substantially limits one or more major life activities, has a record of having such an impairment, or is regarded as having such an impairment.

The law’s disability protections apply if the individual has a physical or mental impairment that substantially limits one or more major life activities—even if the disability isn’t obvious or apparent. HUD’s list of impairments includes many physical and mental conditions with few, if any, obvious symptoms to suggest that a particular prospect qualifies under the FHA’s disability-related provisions.

Furthermore, the FHA protects individuals who do not now have—or ever had—a physical or mental impairment that substantially limits a life activity. The law applies to individuals with “a record of” impairment, which means someone who has a history of—or was misclassified as having—a mental or physical impairment that substantially limits one or more major life activities. The law also protects an individual who is “regarded as” having such an impairment, a catchall phrase that includes an individual with—or without—an impairment when he’s treated by another as having such an impairment.

FAQ #4: Who Doesn’t Qualify as an Individual with a Disability?

Under fair housing law, juvenile offenders or sex offenders are not—because of that status—considered individuals with disabilities. Nor are individuals who are currently engaged in the illegal use of controlled substances, although the law does protect those who are recovering from substance abuse.

In addition, the FHA carves out an exception to exclude anyone with a disability whose tenancy would constitute a “direct threat” to the health or safety of others—or result in substantial physical damage to the property of others—unless the threat can be eliminated or significantly reduced by reasonable accommodation.

FAQ #5: How Can We Determine if an Applicant or Resident Poses a Direct Threat?

It’s unlawful to exclude individuals based on fear, speculation, or stereotypes about a particular disability—or about people with disabilities in general. For example, HUD says a community may not reject an applicant merely because his prior address is a treatment facility for alcoholism, because doing so would be based on a generalized stereotype related to a disability rather than on an individualized assessment of any threat he may pose to property or other residents based on reliable, objective evidence about his recent past conduct.

Instead, the community must conduct an individualized assessment of whether a particular applicant or resident poses a direct threat based on reliable, objective evidence of current conduct or a recent history of overt acts. According to federal guidelines, the assessment must consider:

• The nature, duration, and severity of the risk of injury;
• The probability that injury will actually occur; and
• Whether there are any reasonable accommodations that will eliminate the direct threat.

FAQ #6: Does the Law Permit Disability-Related Questions?

Under the FHA, it’s generally unlawful to ask whether an applicant or resident (or someone in his household or associated with him) has a disability or ask about the nature or severity of a disability, except under some circumstances related to reasonable accommodation and modification requests (see FAQ #9).

You can ask applicants about their ability to meet the requirements of ownership or tenancy, provided that you ask all applicants, regardless of disability, the same thing. You also may ask whether applicants are qualified either for a dwelling available only to individuals with disabilities or for a priority available only to such individuals.

Federal law also allows you to ask questions concerning current illegal drug use or convictions for the illegal manufacture or distribution of a controlled substance. Although the law protects applicants recovering from past drug addiction, it specifically excludes individuals who are currently using illegal drugs.

PART 2: REASONABLE ACCOMMODATIONS

FAQ #7: What Is a Reasonable Accommodation?

Federal guidelines define “reasonable accommodation” as a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have equal opportunity to use and enjoy a dwelling.

In essence, the reasonable accommodation provisions require communities to make exceptions to their general rules for individuals with disabilities under certain circumstances. The rationale is that a community’s rules, policies, practices, and services may have a different effect on people with disabilities than on others, so treating persons with disabilities exactly the same as others may deny them an equal opportunity to use and enjoy their housing.

To show that a requested accommodation may be necessary, there must be an identifiable relationship between the requested accommodation and the individual’s disability, according to federal guidelines. For example, a community must make an exception to a policy requiring residents to come to the office to pay rent as an accommodation to a resident with a mental disability that makes her afraid to leave her unit. In such circumstances, the community must grant her request for her friend to mail her rent payments to the office as a reasonable accommodation, according to the guidelines. 

Requests for reasonable accommodations often involve assistance animals or parking, but communities may face a wide range of disability-related accommodation requests for exceptions to rules and policies. Examples include requests for live-in aides, transfers to different units, early lease termination, and allowing a cosigner on the lease.

FAQ #8: When and How Can Reasonable Accommodation Requests Be Made?

Under the FHA, an applicant makes a request for a reasonable accommodation whenever he makes clear that he is requesting an exception, change, or adjustment to a rule, policy, practice, or service because of a disability. The law does not require that requests for reasonable accommodations be made in a particular manner or at a particular time.

A person with a disability need not personally make the reasonable accommodation request—it can be made by a family member or someone else working on his behalf. The FHA doesn’t require an applicant or resident to mention fair housing law or to use the words “reasonable accommodation.”

Accommodation requests may be made orally or in writing, though federal guidelines recommend that requests be put in writing to prevent misunderstandings about what is being requested or whether the request is made. The community may adopt procedures for handling requests for reasonable accommodations, but you can’t refuse a request simply because the individual makes the request orally or doesn’t use your preferred forms or procedures.

FAQ #9: When Can We Ask for Disability-Related Documentation to Evaluate an Accommodation Request?

If the request concerns a reasonable accommodation that’s clearly related to an obvious or known disability, the community can’t ask for additional information to process the request. For example, if an applicant with an obvious mobility impairment asks for a parking space near the entrance to the building, you can’t ask the applicant for further information, because both the disability and the disability-related need for the accommodation are readily apparent.

On the other hand, you may request additional information to evaluate an accommodation request from an applicant with a known or obvious disability if the need for the accommodation is not readily apparent. If, for example, a resident in a wheelchair requests an exception to the “no pets” policy, then you may ask for information about the disability-related need for the animal.

FAQ #10: Can We Ask for Documentation if the Disability Isn’t Obvious?

You can request disability-related information when a request for reasonable accommodation comes from an applicant or resident whose disability is not obvious. HUD guidelines allow communities to request reliable disability-related information that:

• Is necessary to verify that the applicant or resident meets the FHA’s definition of disability (that is, has a physical or mental impairment that substantially limits a major life activity);
• Describes the needed accommodation; and
• Shows the relationship between his disability and the need for the requested accommodation.

The type and source of documentation that may be required to verify disability depends on the circumstances, according to federal guidelines. Verification may come from an applicant himself, for example, with proof that an individual under age 65 receives Supplemental Security Income or Social Security Disability benefits or “a credible statement by the individual.” A doctor or a medical professional, peer support group, or reliable third party in a position to know about the individual’s disability may also provide verification of a disability. In most cases, the guidelines state that an individual’s medical records or detailed information about the nature of a person’s disability are not necessary to verify a disability.

Once it has been established that the applicant has a qualifying disability, the community may seek information necessary to evaluate whether the requested accommodation is needed because of the disability. The information must be kept confidential and may not be shared with others (absent disclosure required by law) unless they need it to evaluate the accommodation request.

FAQ #11: Who Pays for Reasonable Accommodations?

In general, communities are responsible for paying the costs associated with a reasonable accommodation as long as it doesn’t pose an undue financial and administrative burden.

Communities can’t pass the costs along by requiring individuals with disabilities to pay extra fees or deposits as a condition of receiving a requested accommodation, according to federal guidelines. For example, the guidelines state that a community may not require a resident who has a disability-related need for a motorized scooter to pay an extra deposit or to obtain liability insurance as a condition for allowing him to use the scooter outside his unit. Nevertheless, the community may charge the resident for the cost of repairing any damage to his unit or the common areas caused by the scooter if the community has a practice of assessing residents for any damage they cause to the premises.

FAQ #12: Must Communities Grant All Reasonable Accommodation Requests?

The law does not require communities to approve all requests for reasonable accommodations. The community may deny a request if it was not made by or on behalf of an individual with a disability or there is no disability-related need for the accommodation.

Further, a request for a reasonable accommodation may be denied if providing the accommodation is not reasonable—that is, if it would impose an undue financial and administrative burden on the community or result in a fundamental alteration of its operations.

But the community can’t reject a requested accommodation based on its financial and administrative burden simply because it involves some costs or extra paperwork. The determination must be made on a case-by-case basis involving various factors, such as the cost of the accommodation, the financial resources of the community, the benefits that the accommodation would provide, and the availability of alternatives that would effectively meet the resident’s disability-related needs, according to the guidelines.

And a requested accommodation may be unreasonable because it fundamentally alters the community’s essential operations. For example, the guidelines state that a community would not be required to grant a request from a resident with a mobility impairment to take him to the store and help him shop for groceries. If the community doesn’t provide transportation or shopping services for its residents, then granting the request would require a fundamental change in the nature of the community’s operations. 

FAQ #13: What Should We Do if the Requested Accommodation Is Unreasonable?

If you believe a requested accommodation is unreasonable, then federal guidelines call for the community to engage in the “interactive process” with the person making the request to discuss whether there’s an alternative accommodation that would effectively address his disability-related needs.

If the parties can’t come to an agreement through the interactive process, then it’s considered a decision not to grant the requested accommodation, which would allow the applicant or resident to file a fair housing complaint.

PART 3: REASONABLE MODIFICATIONS

FAQ #14: What Is a Reasonable Modification?

Under the FHA, a “reasonable modification” is a structural change made to existing premises, occupied or to be occupied by a person with a disability, to afford that person full enjoyment of the premises.

The law requires communities to permit applicants or residents with a disability, at their expense, to make reasonable modifications to the housing if necessary to afford them full enjoyment of the premises. A request for a reasonable modification may be made at any time during the tenancy, and it may include structural changes to interiors and exteriors of units and to common and public use areas. While housing providers must permit the modification, the resident is responsible for paying the cost of the modification.

FAQ #15: Who Is Entitled to a Reasonable Modification?

People who meet the FHA’s definition of an individual with a disability may be entitled to a reasonable modification, if there’s a clear connection between an individual’s disability and the requested modification. For example, if a resident whose arthritis impairs the use of her hands and causes her substantial difficulty in using doorknobs wishes to replace the doorknobs with levers, then the community must grant her request because there is an identifiable relationship between the disability and the requested modification, according to federal guidelines.

If the disability is known, but the connection between the disability and the requested modification is not readily apparent, the community may request information that is necessary to evaluate the disability-related need for the modification. If the disability is not obvious, a community may request reliable disability-related information to verify that the individual meets the FHA’s definition of disability.

FAQ #16: What Types of Documents and Assurances May Be Required Before Granting a Reasonable Modification?

A person with a disability must have the community’s permission before making a reasonable modification, but the community may not withhold permission if he meets the requirements for a reasonable modification and provides the relevant documents and assurances.

Before granting a request for a reasonable modification, the community may require a description of the proposed modifications. The community may also require that the resident obtain any building permits and that the work be performed in a workmanlike manner.

In addition, the community may approve a request for a reasonable modification on the condition that the resident will restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted. Residents are not responsible for restoring areas outside the unit to their original condition.

Communities may not impose additional conditions—such as requiring the resident to obtain additional insurance or pay a higher security deposit—before granting a modification request. A resident may be required to deposit money into an interest-bearing account to ensure that funds are available to restore the interior of a dwelling to its previous state, according to the guidelines.

PART 4: DESIGN AND CONSTRUCTION REQUIREMENTS

FAQ #17: What Are the FHA’s Design and Construction Standards?

The FHA requires certain accessibility features in the design and construction of communities with four or more units that were first occupied after March 13, 1991. Those accessibility features include:

• Accessible entrance on an accessible route;
• Accessible common and public use areas;
• Doors sufficiently wide to accommodate wheelchairs;
• Accessible routes into and through each dwelling;
• Light switches, electrical outlets, and thermostats in accessible locations;
• Reinforcements in bathroom walls to accommodate grab bar installations; and
• Usable kitchens and bathrooms configured so that a wheelchair can maneuver about the space.

These requirements apply to all public and common use areas—and to all rental units, if the building has an elevator. In buildings without an elevator, the standards apply only to ground-floor units.

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