Prevent Claims Based On Disability Discrimination

This month, we are going to review fair housing law pertaining to individuals with disabilities. If you find it challenging to understand and comply with all the fair housing rules applicable to individuals with disabilities, you are not alone. According to HUD's most recent annual report, the most common basis of complaints filed last year was disability discrimination, cited in 43 percent of the 10,154 complaints received.

Although the number and types of fair housing complaints in most other categories have been relatively constant over the past four years, there has been a steady increase in disability complaints. According to HUD, the large percentage of discrimination claims based on disability is, at least in part, due to the additional protections afforded individuals with disabilities under the Fair Housing Act (FHA).

In this month's lesson, we will give you six rules to help you comply with fair housing law pertaining to individuals with disabilities. Then, you can take the Coach's Quiz to see how much you have learned. Finally, in the Legal Update (see p. 8), we'll take a look at the new guidelines issued by HUD and the Justice Department on reasonable modifications under the FHA.

WHAT DOES THE LAW SAY?

The FHA prohibits discrimination based on “handicap,” more commonly referred to as disability.

Who Is Covered?

The FHA protects 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.

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. According to HUD regulations, physical impairments include (but are not limited to): orthopedic, visual, speech, and hearing impairments; cerebral palsy; autism; epilepsy; muscular dystrophy; multiple sclerosis; cancer; heart disease; diabetes; and Human Immunodeficiency Virus infection. Mental or psychological impairments include 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 are caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

But the law goes further to protect individuals who may not meet those criteria, but who either have a “record of” or are “regarded as” having such an impairment. An individual with a record of impairment is someone with a history of, or having been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities. Being “regarded as” having an impairment means being treated by others as having such a limitation.

What Is Required?

The FHA prohibits communities from excluding individuals with disabilities or discriminating against them in the terms, conditions, and privileges of the tenancy. Because of those rules, you must ensure that your application procedures as well as your community's rules and regulations are applied equally, regardless of whether the applicant or resident has a disability. Furthermore, you must train your staff to treat everyone in an equal, consistent, and professional manner, according to New York-based fair housing attorney Neil Garfinkel.

But compliance with fair housing law requires more than merely refraining from discrimination against individuals with disabilities. The law imposes responsibilities on communities to ensure that individuals with disabilities have the same opportunity as everyone else to have full use of the community.

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.

Because a community's policies may have a different effect on people with disabilities than on others, HUD says that treating persons with disabilities exactly the same as others are treated will sometimes deny them an equal opportunity to use and enjoy the premises. For example, although a community may adopt a “no pets” policy, it must make a reasonable accommodation to allow a visually impaired resident to keep a guide dog.

Nevertheless, the law does not require owners to approve all requests for accommodations. An owner may deny a request if there is no disability-related need for the accommodation. The same holds true if the requested accommodation is unreasonable because it would impose an undue financial or administrative burden on the community or result in a fundamental alteration of its operations.

Reasonable modification. The law requires owners to permit applicants or residents with a disability, at the applicants' or residents' expense, to make reasonable modifications to the housing if necessary to afford them 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.

Owners 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. But the law does not require residents to restore reasonable modifications outside their units.

COACH'S TIP: The FHA imposes design and construction standards on certain communities built for first occupancy after March 13, 1991. For more information, see the March 2008 issue of Fair Housing Coach, “Ensuring Compliance with FHA's Design and Construction Requirements.”

6 RULES FOR PREVENTING DISABILITY DISCRIMINATION CLAIMS

Rule #1: Do Not Exclude Individuals with Disabilities from Your Community

Communities may not deny housing to an individual based on his disability or that of a person living with or associated with him.

To prevent disability discrimination claims in the application process, Garfinkel recommends that communities put together an application packet containing forms and interview questions to be used with every applicant. That way, you can ensure that your staff will ask the same questions to and get the same documentation from all applicants, regardless of disability.

HUD regulations offer advice on what owners may—and may not—ask prospective residents. The law prohibits communities from asking questions to determine whether the applicant (or someone in his household or associated with him) has a disability. Likewise, you may not ask questions about the nature or severity of a disability.

Communities may ask about an applicant's 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 an applicant is qualified either for a unit available only to individuals with disabilities or for priority on the waiting list for any unit.

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.

Fair housing law does not require you to accept an applicant with a disability “whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.” 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.

Your community may, however, check the applicant's references to the same extent and manner as you would check references of all applicants. If the reference check reveals objective evidence that he posed a direct threat to others in the recent past and the threat has not been eliminated, you may reject the applicant based on direct threat.

COACH'S TIP: Provide at least basic fair housing training to any staff member who may have contact with the public, including temporary office help, advises Garfinkel. For example, he says, a temporary receptionist should be taught the basics so that the temp doesn't ask a question about a prospect's disability. The temp might believe it's an innocuous comment, but it could be considered inappropriate disability discrimination.

Rule #2: Do Not Discriminate Against Individuals with Disabilities in Terms, Conditions, or Privileges of Tenancy

The FHA prohibits communities from treating applicants or residents with disabilities less favorably than others because of their disability. That means you may not impose any special conditions or pass along any extra costs to residents with disabilities, according to Garfinkel.

For example, a community may not charge extra fees to a resident with a hearing impairment who needs to keep a service animal in his unit as a reasonable accommodation. If, however, the animal causes damage to the unit or common areas, HUD guidelines allow the community to charge the resident for the cost of repairing the damage (or deduct it from the standard security deposit) if the community's practice is to assess residents for any damage they cause the premises.

Rule #3: Adopt Policies and Procedures to Address Requests for Reasonable Accommodations

The FHA requires communities to make reasonable accommodations for applicants and residents with disabilities when doing so is necessary to give them an equal opportunity to use and enjoy their dwelling.

Under the FHA, a resident or applicant makes a reasonable accommodation request whenever he makes it clear to the housing provider that he is requesting an exception, change, or adjustment to a rule, policy, or practice because of a disability. HUD guidelines state that an applicant is not entitled to a reasonable accommodation unless he asks for one, but the law does not require that the request be made in a particular manner or at a particular time. Furthermore, the request need not come directly from the person with the disability; the request may be made by a family member or someone acting on his behalf.

Although the law does not require communities to adopt any formal procedures for reasonable accommodation requests, it's a good idea to have written procedures, because disputes concerning accommodation requests so often lead to fair housing complaints. According to HUD's most recent report, failure to make reasonable accommodations accounted for 21 percent of housing discrimination complaints filed last year. Having formalized procedures will cut down on misunderstandings about the nature of the request, and in the event of later disputes, provide records that the request received proper consideration.

Nevertheless, a community may not refuse a request because the individual did not follow your formal procedures. According to HUD, a community must give appropriate consideration to a reasonable accommodation request even if the person making the request does not use your preferred forms or procedures.

Example: An Iowa court recently ruled that a resident of a public housing community who violated its rules by keeping a large dog in her unit may be entitled to keep it as a reasonable accommodation for an emotional disability. The resident, who had the dog for two years before it was discovered, asked to keep it as a reasonable accommodation for post-traumatic stress disorder from prior domestic violence. She said that she had trained the dog to precede her into rooms, turn on the lights, and bring her cell phone to her, and that as a result, the dog helped alleviate her condition.

The court ruled that the resident was entitled to further proceedings to prove her requested accommodation was reasonable given her mental health diagnosis and alleged need for the dog as a service animal [State ex rel. Henderson v. Des Moines Municipal Housing Authority, December 2007].

Rule #4: Promptly Process Requests for Reasonable Accommodations

Once you receive notice of a reasonable accommodation request, fair housing law requires you to provide a prompt response. Under HUD guidelines, an undue delay in responding to a request may be deemed a failure to provide a reasonable accommodation.

If the request concerns a reasonable accommodation that is clearly related to an obvious or known disability, the community may not 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, the community may not ask the applicant for further information, because both the disability and the disability-related need for the accommodation are readily apparent.

Example: Last year, a New Jersey property manager agreed to pay $10,000 to settle a parking accessibility case. The resident, who had multiple sclerosis and walked with forearm crutches, filed a complaint with HUD after the community had allegedly refused his request for an indoor parking space within a short distance of his unit. As part of the settlement, the community also was required to provide the resident with an accessible parking space, create and implement a reasonable accommodation policy, and provide fair housing training to its employees.

A community 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, you may ask for information about the disability related need for the animal.

Similarly, a community may request 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 he 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 the person's disability and the need for the requested accommodation.

The type and source of documentation that may be required to verify the disability depends on the circumstances. 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.”

HUD says that information from a medical professional, peer support group, or reliable third party in a position to know about the individual's disability will suffice to verify that the individual is disabled. In most cases, a community may not demand the applicant's medical records to verify that he is disabled.

Once it has been established that the applicant meets the FHA's definition of disability, the community may seek information necessary to evaluate whether the requested accommodation is needed because of a 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.

Finally, you may deny requests for reasonable accommodations if the request was not made by or on behalf of a person with a disability or if there is no disability-related need for the accommodation. You also may deny a request if providing the accommodation is not reasonable, which means that it would impose an undue financial or administrative burden on the community, or would fundamentally alter your operations.

If you believe that a requested accommodation is unreasonable, HUD says you should discuss with the resident whether there is an alternative accommodation that would effectively address his disability-related needs. If an alternative accommodation would effectively meet his disability-related needs and is reasonable, you must grant it.

COACH'S TIP: Before denying what you believe to be an unreasonable accommodation request, it's best to get legal advice. To determine whether a requested accommodation poses an undue burden on a community, the law requires a case-by-case evaluation of the cost of the requested accommodation, the community's financial resources, the benefits that the accommodation would provide the resident, and the availability of alternative accommodations. Since disputes concerning accommodation requests so frequently result in fair housing complaints, your attorney may be able to help you craft an appropriate response in such circumstances.

Rule #5: Allow Reasonable Modifications to Premises by Residents with Disabilities

Another potential source of fair housing trouble stems from requests for modifications from current or prospective residents with disabilities. A request for 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.

If there is a clear connection between an individual's disability and the requested modification, then a community must permit the modification as long as it is reasonable. For example, if a resident wishes to replace her unit's doorknobs with levers because arthritis impairs the use of her hands, HUD says the community must grant her request because there is an identifiable relationship between the disability and the requested modification.

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.

Rule #6: Promptly Process Requests for Reasonable Modifications

A community has a duty to provide prompt responses to a request for a reasonable modification. According to HUD, an undue delay in making a response may be deemed failure to permit a reasonable modification.

An applicant or a resident is not entitled to a reasonable modification unless he requests one, but the law does not require that the request be made in any particular manner or at any particular time. To avoid misunderstandings, HUD says that requests for reasonable modifications should be in writing. Nevertheless, a community must give due consideration to a reasonable modification request, even if the individual makes the request verbally or does not use the community's preferred forms or procedures for making such requests.

In addition to requesting a description of the proposed modification, a community may require that the resident obtain any building permits and that the work be performed in a workmanlike manner. It may not insist that a particular contractor perform the work.

The resident is responsible for restoring portions of the interior of the unit only where it is “reasonable to do so,” says HUD, and where the community has requested the restoration. 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. According to HUD, however, 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.

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

Coach Source

Neil B. Garfinkel, Esq.: Attorney at Law, Abrams Garfinkel Margolis Bergson, LLP, 237 W. 35 St., 4th Fl., New York, NY 10001; (212) 201-1173; ngarfinkel@agmblaw.com.