Here's Why You Should Be Careful with Reasonable Accommodation Requests

In this lesson, the focus is on disability discrimination, the leading cause of fair housing complaints filed each year. The reasons vary, but many stem from disputes over requests for reasonable accommodations—that is, exceptions to the community’s usual rules or policies—for applicants or residents with disabilities. Last year, for example, more than 3,300 of the 8,300 complaints—40 percent—of complaints received by HUD and its state and local counterparts were for failure to make reasonable accommodations.

These complaints often wind up in court. The dispute may start with a HUD complaint, but even if that’s dismissed, the dispute can still head to court. That’s because the law allows anyone who’s dissatisfied with HUD’s administrative ruling to file a lawsuit in federal court on his own. And many people bypass HUD altogether and go directly to court, since the law allows people to file a lawsuit without first having to file a formal fair housing complaint.

No matter what route complaints take to reach court, cases alleging fair housing violations are costly to defend. Cases can drag on for years and, as you’ll see, may continue even after someone’s death. You can’t do much—other than settle—once a case goes to court, but you can take preventative measures to avoid fair housing violations—and to resolve disputes before they end up in court.

In this month’s lesson, we’ll review recent fair housing cases alleging disability discrimination that involve requests for reasonable accommodations, including the two most common—assistance animals and parking. After reviewing the law, we’ll take a look at the cases—what happened, how the dispute wound up in court, and what the court decided—to help you avoid similar problems when handling reasonable accommodation requests at your community.

Editor’s Note: All of the cases summarized in this issue involve ongoing litigation, which means that the facts are still in dispute and there hasn’t been any final ruling favoring one side or the other.

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) bans discrimination based on disability, so it’s unlawful to deny housing to people—or to treat them less favorably than others—because they, or someone in their household, has a disability. The FHA defines “disability” as a physical or mental impairment that substantially limits one or more major life activity. In general, that means a physical or mental impairment that’s serious enough to substantially affect activities of central importance to daily life—even if it isn’t obvious or apparent.

In addition to the general rules banning disability discrimination, there are extra rules that require communities to grant requests for reasonable accommodations or modifications when necessary to enable an individual with a disability to have an equal opportunity to live there. To comply with fair housing law, you must promptly consider and act on accommodation or modification requests that are both reasonable and necessary to allow people with disabilities to use and enjoy the community.

Reasonable accommodations are changes, exceptions, or adjustments to any of your policies, rules, procedures, or services when needed by an individual with a disability to have equal opportunity to enjoy her unit and common areas. Common examples—and frequent sources of litigation—include requests for exceptions to pet policies for assistance animals and changes to parking rules to reserve an accessible space. 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.

To prove a claim for failure to provide a reasonable accommodation to an individual with a disability, courts generally require the applicant or resident to show that:

1. He or she (or someone associated with him or her) has a disability;
2. He or she requested an accommodation;
3. The community refused to grant the accommodation; and
4. The community knew or should have known of the disability at the time of the refusal.

In general, courts also require the individual to prove that the requested accommodation is both necessary and reasonable. To show that a requested accommodation may be necessary, federal guidelines state that there must be an identifiable relationship between the requested accommodation and the individual’s disability. And a requested accommodation is unreasonable when it would impose an undue financial and administrative burden on the community or result in a fundamental alteration of its operations.

Reasonable modifications are structural changes to interiors and exteriors of units and to common and public use areas, such as lobbies, main entrances, and parking lots, at the applicant or resident’s expense, if necessary for the individual with a disability to fully use the housing. Common examples include widening doorways, adding ramps, or altering walkways to make them accessible to people in wheelchairs. In general, residents are responsible for paying the cost of the reasonable modifications.

REQUEST FOR ASSISTANCE ANIMAL

Despite Rule Banning Dogs, Residents Want to Keep Dogs as Emotional Support Animals

EXECUTIVE SUMMARY: This case involves a condominium community in the Virgin Islands. Despite the community’s rule banning dogs, two residents got dogs and asked to keep them as emotional support animals. The residents sued, accusing the community of unlawfully denying their reasonable accommodation requests and retaliating against them by fining them for violating the no-dog rule. The residents also accused two neighbors of harassment and retaliation based on their posts in an online blog about the community.

ALLEGATIONS: At the time this dispute arose in 2010, the community had a rule that prohibited dogs; its board of directors was authorized to enforce the rule with fines and other measures.

Despite the no-dog rule, the residents each obtained dogs after being prescribed emotional support animals because of their disabilities. They said they requested accommodations for their animals by filing paperwork with the community’s office manager. The paperwork included a doctor’s letter prescribing an emotional support animal and a dog certification, which stated that the dog was prescribed and deemed necessary to assist the “confirmed disabled handler.”

The presence of dogs allegedly raised the ire of some residents. One allegedly expressed his displeasure by writing about it on his blog about the community. In a blog post, he allegedly named one of the two residents, saying she has a dog and claims to have “papers” that allow her to have it. In response, a neighbor allegedly posted the first of many inflammatory comments on the blog. Among other things, he allegedly suggested that these residents should move out rather than being ostracized at the community and drawing costly fines. Having been named in the blog, the resident allegedly posted a response, identifying herself as a person with a disability and writing that she was mortified that her personal business was put out over the Internet without her permission or forewarning.

Meanwhile, there was a flurry of emails among the board and the two residents with the dogs. In her email to board members, one resident said that her paperwork was in the office, but raised concerns that her medical information would not be kept confidential.

The next day, the board president allegedly emailed both residents that they were in violation of the no-dog rule and that they had never requested an exception; they had 10 days to file the request with the board or be fined. In response, the resident said she was qualified to keep a service animal despite the no-dog policy and warned against disclosure of her medical information to other residents.

The other resident’s response was much the same, but she added that she trusted the office manager with her medical information, but not the board, so she would disclose her history and paperwork to the board president only if he signed a confidentiality agreement with a monetary penalty for disclosure. Allegedly, he refused to do so.

The parties disagreed about what happened next. According to the residents, the office manager said that the board president and another board member went to the office and reviewed the documents. But the board treasurer said that the board neither reviewed nor discussed the residents’ medical verification or accommodation requests.

Allegedly, the board voted to fine the two residents $50 per day for violating the no-dog rule, but held off further action pending legal advice. Soon after, the residents filed discrimination complaints with HUD, but the claims were dismissed for lack of reasonable cause.

Meanwhile, the residents alleged that the blogger and the neighbor continued to denigrate dog owners at the community, identifying them as “known violators” and questioning whether their dogs really qualified as assistance animals.

The uproar finally ended when a new board president took over. After the residents provided him with their paperwork, the board approved their requests and waived accrued fees.

Nevertheless, the residents sued the homeowners association, the board of directors, and several individuals, including the former president, the blogger, and the neighbor for disability discrimination and harassment in violation of fair housing law.

While the case was pending, two of the original defendants—the former president and the neighbor—died, but the cases against them continued. In 2014, however, when one of the two residents who filed the lawsuit committed suicide, the court dismissed her case in its entirety. Soon after, the court ruled against the other resident and dismissed all her claims.

The residents appealed.

DECISION: In March 2017, the appeals court reversed, ruling that the residents could pursue claims against the community for failure to grant their reasonable accommodation requests to keep the dogs as emotional support animals. The community didn’t dispute that the residents were disabled or that their use of emotional support animals was reasonable and necessary, but the community denied that it refused to provide the requested accommodations since the residents were never deprived of their emotional support animals. The court rejected that argument, ruling that the community may have refused a reasonable accommodation by fining them for violating the no-dogs rule or by unreasonably delaying a decision to grant their requests.

There was also a factual dispute over whether the board was given an opportunity to accommodate. For example, the parties disagreed whether the residents’ emails barred the board from reviewing their paperwork or merely asked the board to respect their privacy. There was also a dispute over whether the former board president in fact reviewed the paperwork in the office. Further proceedings were needed to resolve these issues.

Online harassment claims. The court also reinstated the residents’ claims against the blogger and the neighbor for interference with their fair housing rights. Under the FHA, it’s unlawful to coerce, intimidate, threaten, or interfere with anyone in the exercise or enjoyment of her fair housing rights. The law doesn’t define “interference,” but it generally means the act of meddling in or hampering an activity or process. Interference doesn’t require force or the threat of force, and it could consist of harassment if it’s severe enough to create a hostile environment.

The residents alleged that the blogger and the neighbor interfered with their fair housing rights by posting derogatory, harassing, and at times threatening comments on the blog for more than five months. They alleged that it was all made public on the Internet, even after the resident said she was mortified that her need for an emotional support animal was made public over the Internet. It was up to a jury to decide whether the conduct of the blogger or the neighbor amounted to harassment that was sufficiently severe as to interfere with the residents’ fair housing rights [Revock v. Cowpet Bay West Condominium Association, 3d Cir. (VI), March 2017].

Case Note: The resident’s death did not require dismissal of her fair housing claims. Ruling that fair housing claims may continue after the death of the party who filed the lawsuit, the court allowed the representative of her estate to continue the lawsuit against the HOA and other defendants.

VERIFICATION OF ASSISTANCE ANIMAL

Community Seeks Verification of Tenant’s Need for Service Animal

EXECUTIVE SUMMARY: This lawsuit was filed against a Colorado condominium community. Despite the community’s no-dog policy, a condo owner leased his unit to a tenant who used a service animal due to a disability. The board asked for documentation to verify the tenant’s disability and disability-related need for the dog. The parties went back and forth a few times, but the process eventually broke down and the tenant moved out. The owner sued the community, several individual board members, and others for denying the accommodation request and retaliating against him by imposing fines for violating the no-dog rule.

ALLEGATIONS: The case dates back to 2013, when the condo owner said he emailed the homeowners association (HOA) that he intended to lease his unit to a woman with a service animal and wanted to know the policy regarding service animals in light of the no-pet policy. The HOA said it would consult with legal counsel, but the tenant soon leased and moved into the unit with her dog, “Stevie Nicks.”

A month later, the board allegedly sent the condo owner a copy of the new policy on service animals, along with a list of questions, and requested the answers within a week. In his reply, the owner said he identified the tenant, and supplied the dog’s certification identification number and breed and weight.

A couple of days later, two members of the board allegedly met with the owner, the tenant, and the dog. During the meeting, the tenant allegedly disclosed her disability—epilepsy—and the claimed purpose of the dog—to detect seizures—for the first time. The parties discussed getting a note from her doctor to substantiate the claimed disability and disability-related need for the dog. In an email to the board, its president allegedly relayed the tenant’s need for an epilepsy alert dog and described the dog as “very sweet and well behaved. Very affectionate.”

A few weeks later, the owner alleged that the board conditionally approved the tenant’s use of the dog upon receipt of two documents: (1) the dog’s certification and evidence that it was helpful in preventing seizures; and (2) a doctor’s letter that certified that the dog was necessary to treat the tenant’s condition even though she wasn’t with the dog for sizable periods of time. Allegedly, the board also imposed certain conditions and warned that failure to comply would result in an automatic fine of $50 per day to the unit owner. In a follow-up letter, the board allegedly warned that failure to provide the documents within a week would trigger the fines and that failure to comply would require eviction of the dog soon after.

In an email to the board, the owner questioned the validity of some of the proposed conditions. He also said he asked the board to contact the canine support team, which certified that the dog was a service animal and could provide proof that the tenant needed the dog because of her condition. The board allegedly rejected the response as inadequate.

The owner said he explained that the tenant couldn’t see her doctor before the deadline, but she agreed to have the canine support teams release her medical records directly to the board. Still, the owner said, it wasn’t enough, so the tenant’s doctor submitted a letter that the tenant had a medical condition that required a service dog. Allegedly, the board rejected the letter because it didn’t provide enough details.

Soon after, the owner said he notified the board that the tenant planned to move out by the end of the month, “in large part because she is concerned that the continued stress of this situation and the prospect of further contention…will cause her to suffer from seizures.” Allegedly, the board allowed her to stay with the dog until the end of the month, but continued to assess fines against the owner and indicated that the only way to stop them was to remove the dog.

In the meantime, the owner said that the tenant’s doctor submitted a second letter that more explicitly explained that the tenant had a well-documented seizure disorder and greatly benefited by the assistance of her service animal in that the dog was able to detect an impending seizure, prepare for the seizure, and potentially alert others to the situation. Allegedly, the accommodation request was never explicitly approved.

The owner claimed that the HOA filed a lien against his property for $5,600 in fines and attorney’s fees. The board also filed counterclaims against the owner for breaching the no-dog rule; emails among board members allegedly indicated the counterclaims served as leverage in any settlement negotiations.

In 2015, the owner sued the HOA, the property management company, and two individual board members for unlawfully refusing to grant the reasonable accommodation request. He also accused them of retaliation for imposing fines and other sanctions for allowing the tenant to live in his unit with her assistance animal.

The community asked for judgment without a trial.

DECISION: The court denied the community’s request, ruling that the owner could pursue claims that the community unlawfully refused to grant the reasonable accommodation request to allow the tenant to keep her assistance animal. The owner presented enough evidence to show that the tenant had a disability—epilepsy—and that the HOA knew or should have known about it based on the documentation they submitted. The owner also presented evidence that the requested accommodation to allow the tenant’s service dog was reasonable and necessary.

Claiming that it never denied the accommodation request, the community argued that it was merely requesting enough information to substantiate the tenant’s disability and disability-related need for the dog. Rejecting that claim, the court said that there was evidence that while it was purportedly seeking additional information, the HOA rejected her documentation as wholly inadequate, authorized the imposition of fines, and threatened a lawsuit if the dog wasn’t removed. After being informed that she was leaving, the board allegedly allowed the dog to stay till then, but continued to impose fines and never approved the accommodation request, even after receiving the doctor’s more detailed second letter.

The court also refused to dismiss the owner’s retaliation claim, ruling that a reasonable jury could find that the board’s continue imposition of fines amounted to coercion, intimidation, threats, or interference because he leased his unit to a tenant with a service animal and because he asked for a reasonable accommodation to the community’s no-pet policy [Arnal v. Aspen View Condominium Association, Inc., Colorado, December 2016].

In March 2017, the court refused to dismiss claims against the individual board members. The complaint alleged that they participated in denying the accommodation request, imposing fines, and filing the lien against the owner’s property in violation of fair housing law. The court also refused to dismiss claims against the company that purchased the assets of the property management company [Arnal v. Aspen View Condominium Association, Inc., Colorado, March 2017].

Editor’s Note: For more information on fair housing rules explaining when and how to ask for disability-related documentation, see the Coach’s March 2017 lesson, “Avoid The 7 Biggest Mistakes When Verifying Disability,” available to our subscribers here.

REQUESTS FOR PARKING & RAMP

Resident Requests Parking and Ramp to Accommodate Household Member’s Disability

EXECUTIVE SUMMARY: This lawsuit, which dates back to 2013, was filed against a Tennessee rental housing community. A resident asked the community for parking accommodations and the construction of a ramp for a household member who used a wheelchair due to a disability. The community offered alternatives, but negotiations broke down, and the residents sued the community for unlawfully denying their reasonable accommodation and modification requests.

ALLEGATIONS: For many years, the resident leased a unit and lived there with a roommate. At some point, the roommate was diagnosed with multiple sclerosis and eventually used a wheelchair due to his condition. A few years after that, the resident was treated for prostate cancer.

In 2013, the resident asked the community to accommodate the roommate’s disability by designating his assigned parking spot as a handicapped spot and to build a wheelchair ramp from the sidewalk to their unit so he could enter and leave the building. The resident said that he offered to pay for construction of the ramp. Previously, the community said it offered them a transfer to a handicapped-accessible unit, but they turned it down because the roommate was unable to stand on the wooden floors in that unit.

Allegedly, the community denied their specific requests, but offered to allow for the placement of a portable ramp to permit access. The same day, the residents alleged, the property manager notified them of neighbors’ complaints against them for racial harassment. The next day, they said they received a five-day notice to quit because of unpaid rent, but they were allowed to stay after they paid the back rent.

Three months later, the resident renewed the request for the designated handicapped parking space and permission to install the permanent ramp. Allegedly, the community denied the request, but moved their parking spot and placed yellow stripes outlining the spot and an adjacent area.

Six months later, the community allegedly accused the residents of having an inoperable vehicle—their van—and threatened to tow it if it wasn’t removed.

They said they renewed requests for the ramp and designated handicapped parking space, but the community again offered to let them use a portable ramp and, in lieu of a designated parking spot, offered to give them a concrete bucket handicapped sign that they could move in and out of the parking space.

A few months later, the residents fell behind on their rent again. There was some dispute over whether they promised to pay the rent, but the manager ultimately gave them an eviction notice, citing the unpaid rent and harassment of other residents, among other things.

The residents claimed that when they contacted the manager she said they were being evicted because the roommate had pushed her and other residents for the last time and she was “tired of all the phone calls” from the roommate in general.

The residents sued the community and the manager, alleging disability discrimination and retaliation under fair housing law.

The community asked the court for judgment without a trial.

DECISION: The court denied the community’s request, ruling that further proceedings were needed to determine whether the residents’ requested accommodations and modifications were reasonable and necessary. The community argued their requests were unreasonable, and it offered reasonable alternatives, namely the portable ramp, new designated parking spot, cement handicapped sign, and use of a handicapped accessible unit.

The residents argued that they needed the ramp because of their medical conditions and that the proposed alternative, the portable ramp, was insufficient because the wheelchair-bound roommate couldn’t move it back and forth every time he entered and left the building. The community argued that installation of the permanent ramp was unreasonable because it would block the sidewalk and pose a safety risk to others.

As for the parking accommodations, the residents admitted that they rarely used the van because of mechanical problems. Although the community offered to accommodate them by means of a less-obstructed designated parking spot and the concrete bucket handicapped sign, the residents argued that these alternatives were insufficient because there was nothing to stop others from parking there and they were physically unable to move the concrete sign back and forth.

Retaliation claims. The court allowed the residents to pursue claims that the community retaliated against them by sending them eviction notices because of their requests for reasonable modifications and accommodations. The community pointed to its legitimate, nondiscriminatory reasons for sending the eviction notices—namely that the residents were behind on their rent and it had received racial harassment complaints against them from other residents. However, the residents argued that these were simply excuses to cover up the real reason for their eviction, pointing to the manager’s alleged comments about being tired of dealing with the roommate [Istre v. Hensley Partnership, Tennessee, February 2017].

REQUEST TO CHANGE DUE DATE OF RENT CHECK

Resident Asks Management to Let Him Pay Rent After SSDI Check Arrives

EXECUTIVE SUMMARY: This lawsuit was filed against a Pennsylvania rental housing community. A resident, who received monthly Social Security Disability Insurance (SSDI) benefits, complained that the community’s policy requiring rent payments on the first of the month was a problem because he didn’t receive his SSDI checks until after his rent was due. He said the management company refused his request to change his rental due date. On his behalf, fair housing advocates sued, accusing the company of discriminating against SSDI recipients and unlawfully denying the resident’s accommodation request.

ALLEGATIONS: The case began in 2012, when the resident complained to private fair housing advocates about how he was being treated at the community. The resident said he was unable to work due to a disability and relied on SSDI benefits to pay his rent.

The resident said that the community’s policies required rent to be paid on the first of each month, and that if rent wasn’t paid by that date, residents would be charged a late fee. Allegedly, anyone collecting SSDI benefits after 1997 received checks on either the second, third, or fourth Wednesday of the month, so the resident didn’t get his SSDI check until after the rent was due. The resident claimed that he asked the property management company to change the due date for his rent to after he received the SSDI check, but the company denied the request and instead charged him a late fee and refused to renew his lease.

In a follow-up investigation, the advocates allegedly arranged for testers to call three properties managed by the company to ask about policies on adjusting monthly rent payments for SSDI recipients. According to the advocates, the tests showed that the company wouldn’t permit any exceptions to its policies on the rental due date.

After filing a HUD complaint, the advocates sued, accusing the community of unlawfully discriminating against residents with disabilities and discouraging people with disabilities from living there.

Arguing that the case should be dismissed, the community asked the court for judgment without a trial.

DECISION: The court denied the community’s request, ruling that further proceedings were needed to determine whether the community violated fair housing law for allegedly refusing to make an exception to its policy requiring rent payments on the first of the month for the resident or others receiving SSDI benefits.

The court said that the advocates could pursue claims that the community’s strict policy requiring rent payments on the first of the month had the effect of making housing unavailable to SSDI recipients. They alleged that the company’s policy never allowed residents to receive permanent or indefinite adjustments to the rental due dates.

Since many SSDI recipients rely almost exclusively on their SSDI checks for financial support, the advocates argued that the company’s strict rental policy made it more burdensome for SSDI recipients to live in the company’s properties without incurring late fees and court costs. Clearly, the court said, the company’s policy may well deter disabled people from living in its rental units. Though the court allowed the advocates to pursue claims based on disparate effect, they couldn’t pursue a claim of disparate treatment since there was no suggestion that the policy was motivated by some discriminatory purpose.

The advocates could also pursue claims that the company refused the resident’s reasonable accommodation request for an exception to the policy requiring rent payments on the first of the month. The company argued that it wasn’t required to grant accommodations related to a disabled person’s financial circumstances, but the advocates argued that SSDI recipients relied on their checks as their primary or only source of income because their disabilities rendered them unable to work. The court said it may be reasonable that the company be required to adjust their rent due date for disabled persons to be afforded equal housing opportunities.

Nevertheless, the court said further proceedings were necessary to assess the community’s argument that the requested accommodation was neither reasonable nor necessary. The company argued that the request to change its policy on the rental due date posed an unreasonable financial and administrative burden on the company’s business operations. The company pointed out that it managed more than 35,000 rental units in approximately 140 communities in 10 states. According to the company, its current system of rent collection and handling court proceedings was cost-effective and that the requested accommodation would “fundamentally alter the way” it did business and require a “major and expensive reprogramming of software and business procedures.”

Though the company raised serious arguments, the court said that determining whether an accommodation creates an undue financial and administrate burden must be made on a case-by-case basis, depending on the facts. At this stage of the litigation, the court said that it didn’t have enough information to make such a determination.

Further proceedings were also needed on the company’s argument that the requested accommodation wasn’t necessary. The company argued that it already provided a reasonable alternative for disabled people who were unable to pay their rent before receiving their SSDI check. Since residents were required to pay first month’s rent before moving in, the company said that SSDI recipients could use checks they received after the first of the month to pay the following month’s rent. Though that option may be enough to provide an equal housing opportunity to some SSDI recipients, the advocates argued it wouldn’t help others since holding money in reserve just wasn’t an option for many disabled people [Fair Housing Rights Center in Southeastern Pennsylvania v. Morgan Properties Management Company, LLC, Pennsylvania April 2017].