How Communities Successfully Defend Against Disability Discrimination Claims

Three recent cases offer keys to avoiding complaints and court losses.

 

In this lesson, Fair Housing Coach highlights recent court rulings to show how communities successfully defend themselves from disability discrimination claims in court. Though the law has been on the books for decades, disputes over requests for disability-related accommodations and modifications frequently lead to fair housing trouble.

We’ll review what the law says about reasonable accommodation and modification requests. Then we’ll take a close look at the cases to see what led to the dispute and how the communities successfully defended themselves in court. Reviewing what the court decided—and why—may help you avoid or defend against disability discrimination complaints at your community. 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) bans housing discrimination based on disability, so it’s unlawful to deny housing to individuals with disabilities or to discriminate against them in the terms, conditions, and privileges of the tenancy.

Fair housing law defines “disability” as a physical or mental impairment that substantially limits one or more major life activities. The list of impairments broadly includes a wide range of physical and mental conditions, including visual and hearing impairments, heart disease and diabetes, HIV infection, and emotional illnesses. Examples of major life activities include seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, and speaking.

In a nutshell, the law protects anyone with a physical or mental impairment that’s serious enough to substantially affect activities of central importance to daily life—even if the impairment isn’t obvious or apparent.

Compliance with fair housing law requires more than merely refraining from discriminating against individuals with disabilities. The law also imposes an affirmative duty to provide reasonable accommodations or modifications as necessary to allow individuals with disabilities to fully enjoy their dwellings.

Reasonable accommodations: The law requires communities to make reasonable accommodations to rules, policies, practices, or services to enable an individual with a disability to fully enjoy use of the property. HUD defines “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.

Common examples include a request to keep an assistance animal in a community with a no-pet policy or a request for a reserved parking spot in a community that doesn’t have assigned parking.

Reasonable modifications: Fair housing law requires owners 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.

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 allow that person full enjoyment of the premises. Communities must consider requests for reasonable modification not only to the interior of a unit, but also to lobbies, main entrances, and other public and common use areas of buildings.

Examples include widening doorways to make rooms more accessible for people in wheelchairs, installing grab bars in bathrooms, lowering kitchen cabinets to a height suitable for persons in wheelchairs, adding a ramp to make a primary entrance accessible, or altering a walkway to provide access to a public or common use area.

The FHA doesn’t require communities to grant ALL disability-related accommodation or modification requests. For one thing, the law requires the requested accommodation to be necessary—one that allows an individual with a disability an equal opportunity to enjoy the housing. In general, that means that there must be an identifiable connection between the requested accommodation and the individual’s disability.

Sometimes, it’s easy to see the connection—for example, when a resident with an apparent mobility impairment asks for an assigned accessible parking space as an exception to a community’s general parking policy. When the connection isn’t obvious, you may request documentation that verifies the connection between a resident’s disability and the need for the requested accommodation.

And you don’t have to grant a disability-related request if it’s unreasonable—that is, it would impose an undue financial and administrative burden on the community or result in a fundamental alteration of its operations. That doesn’t mean you should simply deny the request. Even when a request is unreasonable, federal guidelines say the community should engage in an “interactive process” by talking to the resident about alternative accommodations that would effectively meet his disability-related needs without imposing an undue burden on the community.

Furthermore, the FHA doesn’t protect an individual with a disability whose tenancy poses a direct threat to the health or safety of others or substantial physical damage to the property of others, unless the threat may be eliminated or significantly reduced by a reasonable accommodation.

CASE #1

Resident Protests Community’s Demand

to Remove Aggressive Dog

For a second time, a Florida mobile home community has successfully defended itself against accusations of disability discrimination for demanding removal of a resident’s dog due to its aggressive behavior. 

WHAT HAPPENED: The case dates back to 2016, when the resident’s dog, Maggie, attacked and injured another dog. The community notified the resident that he had to remove his dog and the resident complied, but he brought the dog back in secret two months later.

The dog’s presence went undetected for months until it was spotted by a neighbor. Three days later, the resident informed the community that he was disabled due to depression and that Maggie was his emotional support animal. The community sent the resident notice that he must remove Maggie or face eviction.

Four days later, the resident sued the community for disability discrimination for ordering the removal of his emotional support animal. Months later, Maggie received behavioral training to teach her not to attack other dogs, but the judge ruled that evidence about the training was inadmissible at trial because it occurred after the community notified him that he must remove the dog.

After the judge issued that ruling, the resident submitted a new request for accommodation, citing the behavioral training that Maggie had received. When the community denied the request, the resident successfully tried to amend his complaint so the judge would allow evidence of Maggie’s additional training at trial. Since the trial was only a month away, the judge said it was too late and denied the request.

After a trial, the jury found that the community’s actions were lawful because the dog was a dangerous animal that threatened the safety of the resident’s neighbors. On appeal, the ruling was affirmed.

Meanwhile, on the day after the trial ended, the community issued an eviction notice to the resident.

That led the resident to file a second lawsuit—involving the same dog, the same eviction, and nearly identical allegations. But he added a new defendant, the parent company of the defendant in the first case. Both the community and its parent company asked the court to dismiss the case.

DECISION: Request granted; case closed.

REASONING: By filing the second lawsuit, the resident wanted to challenge the community’s denial of his second request for a reasonable accommodation based on the training that Maggie received shortly before trial. To pursue his claim, the resident argued that the eviction notice was traced to the second request for an accommodation, not the first. In essence, he was asking the court to believe that when the community issued the eviction notice, it wasn’t because it had just won at trial or because the jury had just found that Maggie was a dangerous animal, but was instead out of the community’s desire to discriminate against him.

Rejecting the resident’s arguments, the court said that the most likely reason that the community issued the eviction notice was because on the day prior, it had just established through a jury verdict that Maggie was a dangerous animal to its community. In essence, the resident waited too long to give Maggie additional behavioral training and he waited too long to try to amend the complaint in the first lawsuit to add the issue of additional training.

The court also dismissed the resident’s claim for retaliation. He alleged that the community evicted him from because he filed the first lawsuit and because he submitted reasonable accommodation requests. The court disagreed, saying that the resident was clearly on notice of the potential consequences of refusing to remove Maggie from his home. The most likely, and lawful, explanation for the eviction was that the community succeeded at trial in proving that Maggie was dangerous animal to the community, coupled with his refusal to remove Maggie from his home.

• Friedel v. Sun Communities, Inc., Florida, May 2020.

Deep Dive: Dangerous Animals

In January 2020, HUD issued new guidance on how to assess requests to have an animal as a reasonable accommodation under fair housing law. The new guidance, sometimes referred to as the “Assistance Animal Notice,” emphasizes the following points:

• The FHA doesn’t require you to make a unit available to a person whose tenancy would constitute a direct threat to the health or safety of other residents or whose tenancy would result in substantial physical damage to the property of others. You may, therefore, refuse a reasonable accommodation for an assistance animal if the specific animal poses a direct threat that can’t be eliminated or reduced to an acceptable level through actions the individual takes to maintain or control the animal (for example, keeping the animal in a secure enclosure).
• You may not charge a fee for processing a reasonable accommodation request.
• Pet rules don’t apply to service animals and support animals. Thus, you may not limit the breed or size of a dog used as a service animal or support animal just because of the size or breed but can, as noted, deny the animal based on specific issues with the animal’s conduct because it poses a direct threat or a fundamental alteration of your operations.

For more information about HUD’s new Assistance Animal Notice, see the April 2020 issue of Fair Housing Coach, “How to Comply with HUD’s New Guidance on Assistance Animals,” available to subscribers here.

NEWS BREAK

Man Wants to Bring Emotional Support Hog into Public Parks

In April 2020, the federal appeals court affirmed a ruling that the City of Chicago properly barred a man from bringing his emotional support Guinea hog into public places.

The man had sued the city and others, alleging a violation of his constitutional rights and his rights under the Americans with Disabilities Act (ADA). A regulation under the ADA requires that public entities allow “service animals,” such as dogs—but not hogs—to accompany people with disabilities. The man argued that his hog should be considered a “service animal” under the ADA, and if it was not, then the ADA’s regulation that excludes his hog was unconstitutional. 

The court ruled that the man couldn’t bring the ADA claim because the ADA regulation defined service animals as a “dog” or a “miniature horse” (under some circumstances). The regulation states: “Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition.” Therefore, the ADA did not require public entities to permit hogs in public spaces.

In addition, the man unsuccessfully argued that the ADA regulation was unconstitutional because it limited the definition of service animals to two species. The court rejected his constitutional arguments because the government had a rational basis for limiting what animals were allowed into public areas—its legitimate reason in maintaining social order and public safety [Mayle v. City of Chicago, Illinois (7th Cir.), April 2020].

Editor’s Note: The appeals court didn’t address the man’s remaining claim—that the denial of his Guinea hog was a violation of the city’s responsibility to provide reasonable accommodations to people with disabilities under the ADA.

CASE #2

Must Community Ban Smoking in Entire Building

to Satisfy Resident’s Reasonable Accommodation Request?

No, according to a federal appeals court. Siding with a Michigan condo community, the court ruled that a resident wasn’t entitled to a building-wide smoking ban as a reasonable accommodation for her disabilities. In April 2020, the resident asked the U.S. Supreme Court to consider her appeal.

ALLEGATIONS: The resident was a cancer survivor with “a history of asthma and multiple chemical sensitivity disorder.” For many years, she lived in a condo unit on the second floor of a four-unit building where units shared a common entryway, basement, and attic.

Over the years, the community’s homeowners association (HOA) received complaints from residents that they could detect odors, including cigarette smoke, from neighboring units. State law permitted smoking in one’s home. Since the community’s bylaws said nothing specific about smoking, the HOA had long read the bylaws to permit residents to smoke in their units.

At some point, the resident’s downstairs neighbors leased their unit to a couple who smoked in the unit. In her first written complaint, the resident emailed a property management employee to report that the couple were home all day and night chain smoking, which affected her “breathing, causing constant coughing, and near asthma attacks.” She wanted the HOA’s board of directors to hold the owners accountable for cigarette smoking and other types of smoke seeping through the cracks of their doors and vent. In response, the board instructed the management employee to send a letter to the owners, asking for their assistance to keep the smell contained in their unit.

A few months later, the resident urged the board to send a second letter to the unit owners about the smoke. Instead, the board paid a HVAC contractor to install a $275 fresh-air system on the resident’s ductwork that allowed her furnace to draw in fresh air from outside rather than stale air from the basement.

The resident conceded that the unit helped, but didn’t fully eliminate the odor. A short time later, her lawyer wrote to the owners of the downstairs unit, suggesting that their tenants’ smoking violated various bylaws and asking them to either ensure that smoke did not escape their unit or order their tenants to stop smoking. The neighbors wouldn’t tell the tenants to stop smoking since the bylaws permitted the practice. In “the spirit of being good neighbors,” the tenants agreed to get an air purifier to get rid of any residual cigarette smoke. This solution didn’t satisfy the resident, who kept a log in which she regularly identified times when she could still smell smoke in her unit or the hallways.

The resident sued the HOA, the property management company, the owners of the downstairs unit, and their tenants. She alleged that by refusing to ban smoking in her building, the HOA violated fair housing law by discriminating against her because of her disability. Soon after, the downstairs neighbors didn’t renew the couple’s lease and sold their unit.

The resident continued to litigate her suit against the HOA and its property manager, keeping logs again after smelling cigarette and marijuana smoke from a new source—apparently another downstairs neighbor. The resident requested a reasonable accommodation to prohibit smoking in her building. The HOA circulated a proposal to ban smoking at the complex, but the proposal failed to pass.

Each side asked the court for judgment without a trial. Siding with the HOA and its managers, the court ruled that the resident’s requested smoking ban was not a reasonable accommodation because it would fundamentally change its smoking policy by barring residents from engaging in lawful activity on their own property.

The resident appealed.

DECISION: Affirmed.

REASONING: The community did not violate fair housing law by refusing the resident’s reasonable accommodation request to ban smoking in her building.

The resident’s request didn’t qualify as a reasonable accommodation to the community’s policy to allow smoking. Under fair housing law, the phrase “reasonable accommodation” means a moderate adjustment to a challenged policy, not a fundamental change to a policy. Furthermore, it had to be “reasonable”—an adjustment goes too far if the costs of implementing it would exceed any expected benefits it would provide to the person requesting it.

In this case, the resident’s proposed smoking ban amounted to a fundamental alteration of the community’s smoking policy. No one would describe a change from a smoking-permitted policy to a smoking-prohibited policy as a “accommodation.” It was more rewrite than adjustment. Not only that, her proposal would intrude on the rights of her neighbors who smoke, who may well have bought their units because of the policy permitting smoking.

• Davis v. Echo Valley Condominium Association, Michigan (6th Cir.), December 2019.

 

NEWS BREAK

Smokers’ Rights Group Challenges HUD’s Smoke-Free Rule

In May 2020, a smokers’ rights organization filed an appeal in the latest in a line of court decisions rejecting constitutional challenges to HUD’s regulation banning smoking in public housing.

HUD’s Smoke-Free Rule bans the use of all lit tobacco products, including cigarettes, cigars, pipes, and waterpipes (but not electronic cigarettes). The ban applies to all public housing units and interior areas, as well as outdoor areas within 25 feet of public housing and administrative offices. HUD’s stated purpose for the rule was four-fold:

• To improve indoor air quality in the housing;
• To benefit the health of public housing residents, visitors, and staff;
• To reduce the risk of catastrophic fires; and
• To lower overall maintenance costs.

The rule applied to not only all future PHA leases, but also current leases by required amendment. A resident’s failure to comply with the lease, including the smoke-free rule, could lead to termination of the tenancy and eviction. All PHAs were required to be in full compliance with the rule by July 30, 2018.

In March 2020, the court in the District of Columbia granted HUD judgment without a trial in a case filed by the smokers’ rights organization, challenging HUD’s regulation banning smoking in public housing, including individual residential units. The court rejected the organization’s claim that the rule interfered with residents’ fundamental right to engage in legal activity in the privacy of their homes, because smoking in one’s home was not protected by the right to privacy. The rule satisfied constitutional requirements because it was rationally related to legitimate governmental interests—to create safe housing conditions and remedying the shortage of safe homes for low-income families.

• NYC C.L.A.S.H. v. Carson, District of Columbia, March 2020; appeal filed May 8, 2020.

CASE #3

Community Accused of Disability Discrimination

for Two-Month Delay in Approving Modification Request

In February 2020, a Michigan condo community successfully defended itself against claims that the two-month delay in approving a resident’s request to install a railing violated fair housing law.

ALLEGATIONS: The case involves a divorced couple who lived in a condo unit belonging to the ex-wife. According to their daughter, the ex-husband moved in because of his deteriorating health. Outside, there were steps leading to the unit and a porch approximately eight inches off the ground.

According to the daughter, her father fell several times going in and out of the unit, so she called the property manager’s office and explained to an employee that the porch needed a railing because her father wasn’t very well balanced on his legs and they didn’t want him to fall. The daughter said that the employee told her to go online to request permission from the community’s HOA to get the railing installed. The community’s rules required prior approval of the HOA’s board of directors for any external alterations.

A few days later, the daughter said she sent an email to the employee with a photo and description of the proposed railing, but nothing in her email tied the railing to a claimed medical accommodation for her father. The employee responded that she would forward the request to the board and let her know their decision.

Following receipt of the request, the board members traded emails with questions and comments about the request. The employee requested more information about the installation, and the daughter responded with more details about the style and proposed location of the railing.

Four of the six board members voted to deny the request, but in an email to board members, the employee expressed concerns about the community’s liability if the resident or her husband fell because she had tried to make the porch more “handicap accessible.”

That same day, the daughter said she emailed the employee to say that her father had fallen off the porch and was now in the hospital. The employee forwarded the email to the board, and later notified the daughter that the board had denied the request.

Several weeks later, the family’s attorney sent a demand letter for the board to allow the railing because the wife, on behalf of the husband, was qualified for protections afforded to persons with disabilities under fair housing law. The letter included a note from the husband’s treating physician indicating that the husband was disabled and needed the railing for his safety. The evidence indicated that this was the first time that the board received any medical information about the husband.

A few weeks later, which was little more than two months after the daughter’s first written request, the board approved the request and the railing was installed. Some months later, the father died.

Nearly two years later, the daughter and her mother sued the community and its property managers, alleging that the board’s “unreasonable” delay amounted to a denial of their request for a reasonable modification. After a series of proceedings, both sides asked the court for judgment without a trial.

DECISION: Judgment in favor of the community.

REASONING: The community was not liable under fair housing law for failure to permit a reasonable modification.

In essence, the resident claimed that the board acted unreasonably in taking more than two months to approve the request for the railing. Federal guidelines require housing providers give “prompt responses to a reasonable modification request.” An undue delay in responding to a reasonable modification request may be deemed a failure to permit the request.

But the court said that the duty to respond to a request isn’t necessarily the same as a duty to grant or deny it immediately. There must be reasonable tine for a housing provider to act on a request for modification before it can be considered an undue delay.

The period between the daughter’s first email and the board’s approval was not reasonable. The starting point was what the resident provided to the community—a nondescript email from the daughter to the property management employee, which made no mention of her father and offered no reason at all for the railing request. Regardless of what she told the employee before sending the email, the daughter knew that she had to submit a written request to the board. Accordingly, the daughter herself contributed to much of the delay in failing to provide a complete picture when she first submitted her request to the board.

Once it received a clearer picture of the situation, including the note from his doctor, the board acted quickly to approve the request. All things considered, the board could have perhaps been more proactive in ferreting out the reason for the request, but it didn’t act unreasonably in issuing an initial decision based on the information at hand, and then swiftly approving the request once it received more information.

The reality here was that it took less than two months to approve the railing request. When the board initially responded to the request, it had no written communication from the residents that the request for the railing was related to the ex-husband’s disability. Nor did it have a doctor’s note or any other medical information on him. The interactive process then continued, and further information was submitted, including a doctor’s note, leading to an approval of the request less than a month after the board received concrete medical information. All this shows the board acted expeditiously once it was able to perform a meaningful review. According to the court:

“This case is actually a success story in a Board’s reasonable accommodation of a resident’s disability. In just two months after the initial contact, the Board approved the requested railings. During that two-month process, the interactive process moved from an initial nebulous request, unsupported by any medical documentation, that the Board found inadequate. The homeowner responded with additional information, including a doctor’s note and specific medical details. The Board promptly approved the modification and the homeowner installed the railing.”

Case Note: The court ruled that the property management company was not liable for violating fair housing law based on the actions of its employee in handling the modification request. Courts examining similar claims have concluded that property managers are not liable where, as here, they acted only as a conduit between the community and the individual claiming to be the victim of housing discrimination.

• Kooman v. Boulder Bluffs Condominiums, Michigan, February 2020.