== Site Navigation ==

Main Page Past Shows About Us Show Hosts Comment

== Project Sites ==

Disability Law Lowdown Podcast Disability Law Lowdown Podcast
en Espanol
Disability Law Lowdown Podcast
in ASL Southwest ADA Podcast

This work is licensed under a Creative Commons Attribution - Noncommercial - No Derivative Works 3.0 United States License

[ Listen | Download | Transcript | Printer Friendly Version (New window) ]

You're listening to the Disability Law Lowdown, Show 24.

Jacquie Brennan: Today I want to talk to you about the Fair Housing Act and particularly reasonable accommodations under the Fair Housing Act.

The Fair Housing Act was first passed in 1968. In fact, it’s kind of interesting, they had tried for many sessions of Congress to get the Fair Housing Act passed and it continued to fail to be passed until shortly after the assassination of Dr. Martin Luther King. It was finally passed and it mainly dealt with racial discrimination. It said “on the basis of race, color, religion and national origin”, but the real problem and the real solution had to do with racial discrimination. Some of our listeners might not believe this, but forty years ago it was okay to discriminate in housing based on race. So an apartment complex could simply refuse to rent apartments to people of a certain race or landlords could refuse to rent to them and it was even okay to refuse to sell to someone of a different race or a particular race they didn’t want to sell to.

This was outlawed in 1968 as part of the Fair Housing Act which became part of the Civil Rights Act, it’s Title EIght of the Civil Rights Act. Discrimination based on sex was added in 1974 and it made it unlawful to discriminate in housing based on your gender. And then again in 1988 the law was amended and this time it was amended to include discrimination against people who have disabilities and familial status. So it is now unlawful to discriminate on the basis of, well you have children therefore we’re not going to rent to you. Before 1988 you had a lot of adult only apartment complexes and people would refuse to rent to those who had children. So that was outlawed and people with disabilities, which is why we’re doing this podcast.

The Fair Housing Act is enforced by the United States Department of Housing and Urban Development, HUD, and if anyone believes they have been harmed by a violation of the Fair Housing Act then they may file administrative complaints with HUD and HUD conducts an impartial investigation of the claims.

The Act also says that federal lawsuits by the US Department of Justice as well as private lawsuits can be filed in federal or state courts by individuals. Many state and local fair housing enforcement agencies also have the authority to investigate violations and bring enforcement lawsuits. The general authority for all of this enforcement activity is found in the Fair Housing Act.

The enforcement given in the Fair Housing Act is really pretty broad. When violations of the law are established, the remedies under the Fair Housing Act can include the award of compensatory damages to victims of discrimination and sometimes this can get up into the hundreds of thousands of dollars. Orders for comprehensive correction action and awards of even punitive damages to victims or civil penalties to the government. And in design and construction cases, the remedies might also require retrofitting of housing that’s already been constructed to make it comply with the Fair Housing Act design and construction requirement. That can really run into some expensive retrofitting for these violations.

But today we’re not really going to talk about the design and construction requirements. I guess I should explain what those are, just so you know. For all other sorts of discrimination that was outlawed by the Fair Housing Act, there was nothing that had to be done in terms of design and construction that had to be done differently. You didn’t need different design and construction for people of a certain race, religion, color or national origin or even for familial status or gender, but we did need something, of course, for people with disabilities.

So there is this design and construction requirement and this is actually part of the regulations of the Fair Housing Act and in fact it’s 24CFR Part 100, for those of you who pay attention to such things, and these are also sometimes called the accessibility requirements. The guidelines provide technical guidance on seven different areas’ requirement and these are: accessible building entrances on an accessible route, accessible common and public use areas, usable doors, that is usable by a person in a wheelchair, accessible route into and through the dwelling unit, light switches, electrical outlets, thermostats, other environmental controls have to be in accessible locations, reinforced walls that allow for the installation of grab bars, and usable kitchens and bathrooms. So there are very specific technical guidelines for those areas.

But today we’re not really going to talk about those accessibility features, but really about reasonable accommodations because, also under the Fair Housing Act, landlords are required to make reasonable accommodations for individuals with disabilities. Now we’re usually used to hearing that term, reasonable accommodation, as part of the Americans with Disabilities Act, the ADA, and particularly TItle One of the ADA which deals with employment. But this is a little different than that, although it’s the same sort of concept dealing with fair housing. So there may be, for example, a policy that says we don’t allow pets. Well, that policy would have to be amended or at least modified so that a person with a disability could have a service animal or even an emotional support animal. Emotional support animals, you might already know, are not really covered by the Americans with Disabilities Act but they may be covered by the Fair Housing Act as an accommodation.

Another sort of accommodation, say we’re talking about a great big apartment complex, and maybe the accessible parking spaces are located in one area that may be half a mile from the person’s apartment who needs the accessible parking but then needs to go half a mile to get to their apartment. It might be a reasonable accommodation to assign one of the spaces closest to that person’s apartment as an accessible space or even reserve it for them in some cases so that they have that as an accommodation to allow them to be close to their apartment.

That’s the sort of thing we’re talking about with reasonable accommodation and what I really want to do today is just talk about some cases that have come up that have centered on Fair Housing Act reasonable accommodations so you’ll get an idea of what we’re talking about here.

This first one, the Department of Housing and Urban Development, HUD, charged the Townson House Corporation, which is a private cooperative in New York City, with housing discrimination for refusing to allow a family to obtain an animal that provides emotional support for their child who has autism. This case centers on an eleven year old boy who has been diagnosed with autism spectrum disorder and central auditory processing disorder which significantly impairs his day to day functioning and ability to learn and hear. So, to treat the disorders, the child’s doctor prescribed to his parents that they acquire a support animal to provide emotional support for their son.

Now, prior to getting the emotional support animal, the parents requested an exemption to the co-op’s no pet policy. After they got documentation from the doctor that confirmed the child’s disabilities and the need for the emotional support animal, the co-op agreed to let the parents get the dog for their son. But they said this was subject to the terms of what they called “pets license agreement” and it was drafted specifically for this family. In other words, it wasn’t the pet policy they had before because before their pet policy was no pets. Now they were going to allow this dog except they had this pet license agreement.

Well, the parents said the agreement had unreasonable restrictions and you’ll probably agree when you hear what the restrictions were. In additional to requiring the parents to get insurance which provided liability coverage of one million dollars, the agreement also had other discriminatory terms, including a ten pound weight limit, a limit on how long the support animal could be left alone in the apartment and a requirement that the dog be muzzled when in the co-op’s common areas.

HUD’s investigation showed that the agreement had unreasonable restrictions that really, in effect, denied the reasonable accommodation to the child. “It is not right or legal for landlords to dictate the unreasonable terms and conditions by which persons with disabilities should live their lives” said Kim Kendrick, HUD Assistant Secretary for Fair Housing and Equal Opportunity. She went on to say, “HUD is deeply committed to enforcing the Fair Housing Act to make sure this does not happen.”

The HUD charge will be heard by a U.S. administrative law judge or the parties may go into federal district court. In any case, what may be awarded are damages to each of the complainants, each parent and the child, for the actual loss as a result of the discrimination as well as damages for emotional distress, humiliation and loss of civil rights. The judge may also order injunctive or other relief to deter further discrimination as well as the payment of attorney fees. In addition to damages payable to the complainants, the judge may also impose a civil penalty in order to vindicate the public interest and, in that event, a federal district court may also order punitive damage to the complainant.

There was another case that also involved a child who had autism. In this case, HUD announced that a Portland, Oregon apartment owner and management company agreed to pay the parents of a child with autism forty thousand dollars to settle a housing discrimination complaint. The parents of the child said that the Princeton Property Management Incorporated refused to accommodate the special needs of their three year old son. The family said that Princeton Property Management refused to grant their request to move to a vacant first floor apartment. There had been complaints about the noise from their apartment caused by their son who had autism. They lived on the second floor so they requested to move to the first floor because this would mitigate the complaints since the complaints were from the people in the apartment below them.

They did not let the family move to a first floor apartment and then they refused to renew the family’s lease which the family had had for several previous years and they issued a thirty day termination of tenancy notice. Now the property managers did not act on the family’s request to extent that termination day which forced the family to vacate the apartment on the same day that the mother gave birth to their second child.

In addition to the forty thousand dollar payment, the owners and the managers of the property will donate twenty-five hundred to an autism support group and twenty-five hundred to an early childhood development center and the family’s school district and the agreement also requires employees of the management company to attend Fair Housing training.

HUD charged the owners and managers of a forty unit Kansas apartment complex with violating the Fair Housing Act by discouraging a woman, a thirty-nine year old single mother who is an amputee from applying for housing because she had a minor child. The apartment complex, which was built with funding from the USDA Rural Development Section 515 program, provides housing to elderly persons and also persons with disabilities. But the apartment complex must still rent to otherwise eligible households that have minor children. An agent for the property admitted telling the woman that the property is a senior citizen complex and that children had never lived there before.

HUD charged an Oregon landlord for refusing to allow an assistance dog. HUD charged Ron Lucas and Lucas Developments in Oregon with violating the Fair Housing Act because it refused to allow a person with disabilities to reside in the housing with an assistance dog. Following the death of her son, the resident, who has multiple disabilities, requested permission to live with an assistance dog as prescribed by her physician and her mental health worker. She first made a verbal request and that was denied and then she filed a written request with the help of a legal aid attorney and she submitted that along with ample documentation of her need to have an assistance dog.

But the manager at the apartment says, “well, if I let you have a dog, everyone will want one and anyway, dogs are required only for people with physical disabilities and I don’t think you have any disabilities.” The manager said that the manager believed that the person did not have a disability, a physical or mental disability, and the manager could just tell this. Also, the manager said a small animal might be all right, like a bird or a hamster, but not a dog. This is a very small complex, too, only a fifteen unit complex. Because of the rejection of all three requests that the person be allowed to have an assistance dog, HUD has gone ahead now and charged the landlord for refusing to allow the assistance dog.

The United States filed a proposed consent order in the United States versus Covenant Retirement Communities. The complaint alleges that Chicago-based Covenant Retirement Community and all its subsidiaries violated the Fair Housing Act by employing policies that required residents of retirement communities who used motorized mobility aids to obtain personal liability insurance, demonstrate their competence at operating the motorized aid and provide physician’s certification of need. They also barred residents and visitors from using mobility aids in certain common areas like the dining room and they steered persons who used mobility aids from independent living to assisted living. There are fifteen Covenant Retirement Communities that are located in California, Illinois, Minnesota, Colorado, Washington, Oregon, Connecticut, Florida, and Michigan.

The consent order really dismantles those policies. Residents and visitors who have disabilities will be free to use their mobility aids throughout the complexes and may not be subjected to conditions of use including testing, proof of need, or the purchase of personal liability insurance. The defense will also establish a five hundred and thirty thousand settlement fund for persons who may have been injured by their policies, to pay residents who were tested two hundred and fifty dollars and such additional damages as they may have suffered and pay a thirty thousand dollar penalty. The agreement also calls for employee training, a non-discrimination policy, record keeping and monitoring. The consent order will remain in effect for three years.

Then a couple of more cases. One is in Florida where HUD has charged that a local Florida housing authority was violating the Fair Housing Act by refusing to allow a resident with a disability to relocate to an apartment that had a bathroom that he could use without negotiating stairs. Sometime after an injury left the resident with a disability, the apartment complex relocated him and his family and two others in order to resolve conflicts among them. The housing authority refused to relocate the resident to an apartment with an accessible bathroom even though such units were available. Ultimately the resident and his family saw no choice but to leave their public housing unit because the resident could not use the stairs to get to the bathroom.

HUD has charged the owners of a Puerto Rico housing complex with violating the Fair Housing Act in refusing to make special disposal arrangements for a resident with a disability. After shutting down the trash rooms on each floor for the apartment building, the owner said that all residents must take their trash personally to outside dumpsters. But for this resident who was unable, who had physical disability and was unable to reach the dumpster, the complex promised that the maintenance staff would collect her trash as a reasonable accommodation, but that did not happen. HUD has charged the owners with violating the Fair Housing Act.

Fair Housing and the Fair Housing Assistance Program investigate more than ten thousand housing complaints every year. People who believe they are the victims of housing discrimination should contact HUD at 1-800-669-9777 that’s voice or for TTY it’s 1-800-927-9275. Additional information is available at HUD.gov/fairhousing.

I hope you’ve learned a little bit about reasonable accommodations for the Fair Housing Act today and remember, if you have any questions, you can always call the Disability Business Technical Assistance Centers, the ADA Centers at 1-800-949-4232.

Thanks for tuning in.

The Disability Law Lowdown is brought to you by the Disability Business Technical Assistance Centers which are a network of ADA Centers that provide training, technical assistance and materials on the ADA and other disability-related laws. Funding for the Centers is provided by a grant from NIDRR, the National Institute on Disability and Rehabilitation Research.

You can subscribe to the Disability Law Lowdown at our website, disabilitylawlowdown.com or on iTunes.



The Southwest and Rocky Mountain ADA Centers are part of a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232. This podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.