Preventing Claims From Individuals With Nonobvious Disabilities

This month, we are going to review the fair housing rules as they pertain to disabilities that may not be obvious or apparent. The law prohibits communities from excluding or otherwise discriminating against individuals with disabilities. It also imposes duties on communities to provide reasonable accommodations and modifications as necessary to allow individuals with disabilities to fully enjoy their dwellings.

Because of the way that fair housing law defines “disability,” it's sometimes difficult to know whether disability-related rules apply to a particular prospect or resident. For example, when the nature of an individual's disability is not apparent, your staff may fail to recognize that a prospect's request for an exception to your rules must be evaluated as a request for a reasonable accommodation. If a leasing agent does not realize a prospect or resident is considered disabled under fair housing law, you could be accused of discrimination if he does not take the request seriously.

This month, we'll give you seven rules for warding off discrimination claims by individuals with disabilities that are not obvious or apparent. Then, you can take the COACH's Quiz to see how much you have learned.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) bars communities from excluding or otherwise discriminating against prospects, applicants, and residents because of their disability as well as the disability of anyone associated with them, such as family members or others in their household.

But the law goes further: It requires communities to make reasonable accommodations in rules, policies, practices, or services—or allow reasonable modifications to the premises—when necessary to afford a person with a disability the 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 will sometimes deny them an equal opportunity to use and enjoy the premises.

The FHA defines disability as a physical or mental impairment that substantially limits one or more major life activities. The definition involves three key phrases:

Physical or mental impairment. HUD regulations broadly define physical or mental impairment to include any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more specified body systems, including neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine. It also includes any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

According to HUD regulations, examples of physical or mental 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; Human Immunodeficiency Virus (HIV) infection; mental retardation; emotional illness; drug addiction (other than addiction caused by current, illegal use of a controlled substance); and alcoholism.

Substantially limits. HUD says that substantially limits means a limitation is “significant” or “to a large degree.”

Major life activity. According to HUD, major life activity means an activity that is of central importance to daily life, including, but not limited to: seeing, hearing, walking, breathing, performing manual tasks, caring for oneself, and speaking. HUD also notes that reproduction is a major life activity for certain individuals.

If an individual has a physical or mental impairment that substantially limits a major life activity, she is protected under the FHA's disability-related provisions—even if the disability is not obvious or apparent. But the FHA also protects individuals who do not now have—or ever had—a physical or mental impairment that substantially limits a life activity. The FHA's definition of disability includes an individual with “a record of” impairment, which means 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. In addition, the law also protects an individual who is “regarded as” having such an impairment, a catch-all phrase that includes an individual with—or without—an impairment when he is treated by another as having such an impairment.

7 RULES TO PREVENT CLAIMS FROM INDIVIDUALS WITH NONOBVIOUS DISABILITIES

Rule #1: Don't Make Assumptions Based on Appearances

Don't rely on appearances to determine whether a prospect or resident is—or is not—entitled to protection under the FHA's disability provisions.

Given the broad definition of disability under the FHA, appearances can be deceiving. HUD's list of impairments includes many physical and emotional conditions characterized by few, if any, obvious symptoms to suggest that a particular prospect qualifies under the FHA's disability-related provisions. You could get in trouble, for example, if you questioned the credibility of any prospect who says he is disabled but shows no outward sign of an impairment.

Or you may recognize that a prospect has an impairment, but don't know whether it is severe enough to substantially limit a major life activity. You could trigger a complaint if, for example, you ignore a request for a reasonable accommodation from a prospect who shows no apparent difficulty walking but asks for an assigned parking spot due to a mobility impairment. If he has an impairment that substantially limits a major life activity—even if his condition is intermittent or characterized by some good days and some bad days—he could qualify as an individual with a disability under fair housing law.

Rule #2: Curb Curiosity About Disability

Another way to get into fair housing trouble is to ask the wrong questions. Under the FHA, it is unlawful to ask applicants about whether they or a family member have a disability or about the nature and severity of such a disability. However, you may ask some questions—as long as you ask all applicants, regardless of whether they have a disability—to determine whether an applicant:

• Has the ability to meet the requirements of ownership or tenancy;

• Is a current illegal abuser or addict of a controlled substance; or

• Has been convicted of the illegal manufacture or distribution of a controlled substance.

Although you may ask applicants about current drug use, you may not screen out applicants with a past history of drug addiction, who are protected under the FHA's disability-related provisions. For example, you may not reject an applicant simply because she lists a drug treatment facility as her current address.

COACH'S TIP: Despite limitations on disability-related questions in most instances, you may ask whether an applicant may be qualified for units that are available only to individuals with a disability (or particular type of disability) or for a priority available only to individuals with disabilities—as long as you ask the same questions of all applicants.

Rule #3: Listen for Accommodation Requests

Keep your ears tuned for accommodation requests, particularly when the applicant does not appear to be disabled.

Anytime anyone asks you to make an exception to any of your policies or procedures, it should prompt you to think about fair housing rules governing reasonable accommodations for an individual with disabilities, advises fair housing attorney Robin Hein. The FHA does not require an applicant or resident to mention fair housing law or to use the words “reasonable accommodation.” According to HUD, an applicant is making a request for a reasonable accommodation whenever she makes clear that she is requesting an exception, change, or adjustment to a rule, policy, practice, or service because of a disability.

Furthermore, the FHA does not require the request to come from the disabled person herself—HUD says that a community has notice that a request for a reasonable accommodation has been made if a person, her family member, or someone acting on her behalf makes the request.

Once someone asks for an exception to your rules, follow your community's policies and procedures regarding reasonable accommodations for individuals with disabilities. Hein says that you may ask the applicant to fill out a standard form for accommodation requests, although you may not ignore a request if the applicant refuses to use your form. Hein suggests explaining that the form will help you understand and communicate the request to the person evaluating it. HUD recommends that accommodation requests be put in writing to prevent misunderstandings about what is being requested or whether the request is made.

COACH'S TIP: Be careful about how you document when a prospect asks for an accommodation, because the words you use can limit your options in the future, says Hein. For example, if a prospect says that he needs an accommodation to your rules because of a disability, don't write on the guest visitor card or other document that “the individual is disabled.” Instead, it is better to write that “the individual has requested an accommodation due to his disability.” When the nature of a disability is not obvious, you are allowed to get more information to determine whether the individual in fact has a disability. But the FHA's definition of disability also covers an individual “regarded as” disabled, warns Hein, so you could inadvertently trigger the law's protections—preventing you from taking steps to verify the disability—if your documentation indicates that you regarded the person as disabled.

Rule #4: Ask for Information When Disability Is Not Obvious

When you get an accommodation request from an individual whose disability is not obvious, HUD guidelines state that you may ask for reliable disability-related information to verify that the person meets the FHA's definition of having a disability—that is, he has a physical or mental impairment that substantially limits one or more major life activities.

But you may not demand a doctor's note to verify the disability. HUD guidelines say that, depending on the circumstances, the information usually can be provided by the individual himself—either proof that he receives certain forms of Social Security disability benefits or a “credible statement by the individual.” Or verification can come from a medical professional, a peer support group, a nonmedical service agency, or a “reliable third party who is in a position to know about the individual's disability.” According to HUD, the individual's medical records or detailed information about the nature of the disability is not necessary in most cases.

Do not ignore a request for an exception to your rules—or reject it out of hand—even if you don't see any outward sign of a disability. The law's requirements governing reasonable accommodations apply regardless of the nature of the disability, so you have an obligation to treat the request seriously. Otherwise, you could face a steep penalty for a fair housing violation.

Example: A Minnesota community recently agreed to pay $82,000 to settle a disability discrimination claim for allegedly denying a unit to a woman and her family because she had an emotional assistance animal. According to the complaint, the leasing agent asked the woman about pets during the screening process and explained that the community had a no-pets policy. Allegedly, the woman responded that she had an assistance animal prescribed for her depressive disorder and other medical conditions. The complaint alleged that the leasing agent did not offer to consider and did not seek information concerning the woman's medical condition and the prescription for an assistance animal. Instead, the agent allegedly stated that the community would not allow the family to be residents if they had an assistance animal [United States v. Bouquet Builders Inc., June 2008].

Rule #5: Determine Disability-Related Need for Accommodation

Once you are satisfied that the individual has a disability as defined under the FHA, then you must evaluate whether there is a disability-related need for the accommodation. There must be an identifiable relationship between the requested accommodation and the individual's disability, according to HUD. As an example, HUD says that 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 that case, HUD says the community must grant her request for her friend to mail her rent payments to the office as a reasonable accommodation.

If in doubt about the connection between an individual's disability and the need for a requested accommodation, it's best to consult with your attorney on how to respond. Under HUD guidelines, you may ask for more information if necessary to evaluate if the reasonable accommodation is needed because of a disability. Nevertheless, legal guidance may be necessary to respond properly. Court decisions have varied, particularly on the disability-related need for exceptions to rules governing financial and screening criteria as a reasonable accommodation.

Example: A North Carolina community recently won a disability discrimination complaint filed by an applicant who wanted the community to overlook her criminal record as a reasonable accommodation. The applicant, who was diagnosed with mental disabilities and was recovering from substance abuse and addiction, had a criminal record that included a five-year-old arrest and conviction by way of a guilty plea for simple assault. Her application was submitted to a third-party screening service, which recommended denial of her application based on her criminal history. The community denied her request to make an exception to its screening rules pertaining to criminal convictions as a reasonable accommodation.

The applicant sued, but the court dismissed the case, upholding the community's decision to deny her request. At the outset, the court noted that the FHA does not prohibit a community from denying a disabled person's rental application based on her criminal history. In this case, the court ruled that the community was not required to make an exception to its policy of denying housing based on an applicant's criminal history—even if her conviction was related to her disability. The court reasoned that the purpose of the FHA's prohibitions on discrimination based on disability was the elimination of stereotypes based on physical and mental impairments. Criminal conduct caused by a mental disability was not an effect of a disability that fair housing law was intended to address [Evans v. UDR Inc., March 2009].

Rule #6: Evaluate Alternatives When Requested Accommodation Is Unreasonable

The law does not require you to make exceptions to your rules for an individual with a disability when the requested accommodation is unreasonable. But that doesn't mean you may reject the request simply because it's inconvenient or might involve some expense, because the term “unreasonable” has a specific meaning under fair housing law. According to HUD, an accommodation is unreasonable when:

• It would impose an undue financial and administrative burden on the community; or

• It would fundamentally alter the nature of the community's operations.

Under HUD guidelines, the determination of undue financial and administrative burden must be made on a case-by-case basis involving various factors, such as the cost of the requested accommodation, the financial resources of the community, the benefits that the accommodation would provide to the requester, and the availability of alternative accommodations that would effectively meet the requester's disability-related needs.

If you believe a request is unreasonable because it either requires fundamental alterations of your operations or imposes an undue financial and administrative burden, then you should suggest an alternative accommodation that would effectively address the individual's disability-related needs, says Hein.

HUD suggests that the community and the individual engage in an “interactive process” to discuss the disability-related need for the request as well as possible alternatives. There is little guidance on what to do when the individual's request is reasonable but the community would prefer an alternative accommodation that would be equally effective. But it's in your best interests to find a workable solution. If the parties fail to resolve the matter through the interactive process, it will be considered a decision to deny the requested accommodation, says HUD.

COACH'S TIP: Always respond to a request for a reasonable accommodation in writing, says Hein. Unless you are granting the accommodation as requested, the wording may be tricky, so you should ask your attorney to review your response before giving it to the individual making the request.

Rule #7: Enforce Rules to Prevent Harassment, Maintain Safety

Take steps to enforce rules to prevent harassment or other misconduct by or against residents because of a disability.

If a resident with a disability complains about being harassed by other residents, then you should take the complaints seriously. Fair housing experts advise that you should investigate the complaints and, if true, take action to stop the harassment.

If a resident with a disability is harassing or otherwise threatening his neighbors, then you may take action—but you should first consider the ramifications of fair housing law. The FHA does not protect an individual with a disability whose tenancy would amount to a “direct threat” to the health or safety of other individuals or result in substantial physical damage to the property of others unless the threat can be eliminated or significantly reduced by reasonable accommodation, according to HUD. In general, that means you must analyze whether the resident is a “direct threat” and whether anything can be done to resolve the matter, short of eviction.

To determine whether an individual poses a direct threat, the community must make an individualized assessment—based on reliable, objective evidence, such as current conduct or recent history of overt acts. HUD says that the assessment must consider:

• The nature, duration, and severity of the risk of injury;

• The probability that injury will occur; and

• Whether there are reasonable accommodations that will eliminate the direct threat.

When reviewing a past history of overt acts, the community must consider whether the individual has received intervening treatment or medication that has eliminated the direct threat. HUD says the community may request documentation of how the circumstances have changed as well as satisfactory assurances that the individual will not pose a direct threat during the tenancy.

According to HUD, the community must have reliable, objective evidence that a person with a disability poses a direct threat before excluding him from housing on that basis. For example, HUD says that a community must take certain steps before evicting a resident with a psychiatric disability who was arrested for threatening his neighbor with a baseball bat. During the eviction process, the resident's attorney explains that the resident becomes violent when he stops taking prescribed medication, and asks the community to allow him to remain as a reasonable accommodation. HUD says the community needs to grant the request only if the attorney can provide satisfactory assurance that the resident will receive counseling and periodic medication monitoring to ensure he will no longer pose a direct threat. If the resident refuses, HUD says that the community may go forward with the eviction proceeding since the resident continues to pose a direct threat to the health and safety of other residents.

COACH'S TIP: If you grant a request for a reasonable accommodation—such as a parking space or service animal—to a resident whose disability is not apparent, be prepared with an appropriate response if other residents ask why. Other residents may be curious—or want the same consideration for themselves—so they may ask inappropriate questions about the individual's disability. You could get into fair housing trouble if you provide a direct answer, warn fair housing experts, who advise that you give a stock response indicating that your community is complying with the law.

• 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

Robin Hein, Esq.: Attorney at Law, Fowler, Hein, Cheatwood and Williams, P.A., 2970 Clairmont Rd., Ste. 220, Atlanta, GA 30329; (404) 633-5114; RobinHein@ApartmentLaw.com.