Fair Housing for Persons with Disabilities

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Fair Housing for Persons with Disabilities

• Lyonel LaGrone, Jr.
• Metro Fair Housing Services, Inc.

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Metro Fair Housing Services, Inc.

• Founded in 1974
• Private, not-for-profit, fair housing
  organization whose primary purpose is to prevent
  housing discrimination in the metropolitan
  Atlanta area and throughout the state of Georgia.
• Mission To promote social justice and eliminate
  housing and lending inequities for all people,
  including those with disabilities, through
  leadership, education and outreach, public policy
  advocacy and enforcement.

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What is a disability?

• Similar definitions under the Act, 504 and ADA
• A physical or mental impairment that
  substantially limits one or more major life
  activities, like walking, breathing, seeing,
  hearing, speaking, learning..
• Having a history of such impairment
• Being perceived as having such an impairment
• Being associated with someone with such an
  impairment
• CAUTION THIS IS NOT THE SAME AS THE DEFINITION
  OF DISABILITY FOR PROGRAM ELIGIBILITY PURPOSES
• (i.e. must have AIDS or a related disease to
  qualify for HOPWA)

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Three Key Laws Relating to Discrimination Based
on Disability

• Fair Housing Act (the Act)
• Applies to virtually all housing
• Section 504 of the 1973 Rehabilitation Act
  (Section 504)
• Applies to recipients of federal financial
  assistance
• HUD has comprehensive regulations addressing HUD
  funded housing
• Does NOT apply to landlords who receive only
  Section 8 certificate or Voucher funds
• The Americans with Disabilities Act (ADA)
• Title II applies to housing operated by state or
  local governments and is very similar to Sec. 504
• Title III applies to places that serve the
  general public, which includes rental offices,
  but not the housing itself

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Definition of Disability

• This protection does not include
• Current illegal drug users
• Juvenile offenders, sex offenders or
  transvestites
• Persons convicted of the illegal manufacture or
  distribution of a controlled substance

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Types of Discrimination

• Overt
• Blatant unfair treatment of someone
• because of their membership in a protected
• class.
• Disparate Treatment
• Disparate Impact

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Reasonable Accommodations

• Under disability laws, reasonable accommodations
  must be made at the expense of the
  landlord/housing provider
• Fair Housing Act
• Changes in rules, policies, practices, or
  practices or services that are necessary for a
  person to use and enjoy housing

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Reasonable Accommodations

• Section 504
• Changes to rules or policies AND structural
  changes that are necessary for a person with a
  disability to use and enjoy housing

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Basic Principles of Reasonable Accommodations

• Need and request are based on a persons
  disability
• Housing provider must be aware of disability
• If obvious disability, housing provider cannot
  ask for confirmation, medical or otherwise. This
  is a specific violation
• If not an obvious disability, or if housing
  provider questions disability, housing provider
  may ask for back up
• Examine forms, if a housing provider uses one.
  Sometimes the inquiry goes to far by asking the
  nature or severity of the disability or whether
  the complainant is capable of living
  independently. This is a separate violation
• There may be HIPAA violations if housing provider
  contacts health care provider without a release

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What makes a reasonable accommodation requirement
arise?

1. A person has a disability within the meaning of
   the law
2. The housing provider knows, or should know, of
   the nature of the disability
3. An accommodation is needed for the person to
   benefit from the housing
4. The housing provider knows, or should know, of
   the need for the accommodation

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When do accommodations have to be made?

• The requested accommodation must be made if they
  are reasonable
• The requested accommodations must be acted upon
  within a reasonable time, because the delay may
  amount to denial of the accommodation

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What is the process for requesting Reasonable
Accommodations?

• There is no specific or required process for
  making a reasonable accommodation request
• Accommodation request can be made verbally or in
  writing
• An accommodation request doesnt have to be
  called a request for a reasonable accommodation
• There is an obligation to make an accommodation
  even when one is not actually requested if the
  need is apparent
• Cannot ask for confirmation of disability or of
  need for the accommodation if disability/need for
  accommodation is obvious

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When is a request for an Accommodation
Unreasonable?

• A request for a reasonable accommodation may be
  rejected if it is unreasonable
• The test under both the fair Housing Act and
  Section 504 is whether the accommodation would
  pose an undue financial and administrative burden
  OR
• The accommodation would fundamentally alter the
  nature of the program (the way you do business)

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Necessary and Reasonable

• To show that a requested accommodation may be
  necessary, there should be an identifiable
  relationship or nexus between the requested
  accommodation and the individuals disability
• An accommodation will not be considered
  reasonable if it constitutes a fundamental
  alteration of the providers program, or an undue
  financial and administrative burden

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Undue Burden

• Financial resources of the provider
• Cost of the reasonable accommodation
• Benefits to the requesting applicant/resident
• Availability of other, less expensive alternative
  accommodations that would effectively meet the
  applicant/residents disability-related needs
  must be considered

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What about invisible disabilities?

• If a landlord is skeptical of a tenants alleged
  disability or the landlords ability to provide
  an accommodation, it is incumbent upon the
  landlord to request documentation or open a
  dialogue. Jankowski Lee and Associates
  v.Cisneros, 91 F. 3rd 891 (7th Cir. 1996)

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Equality of Treatment

• People with disabilities cannot be treated
  adversely because they are disabled
• Differences in treatment must be justified by one
  or more legitimate, non-discriminatory reasons
• CAUTION NOTHING IN THE FAIR HOUSING ACT REQUIRES
  THAT HOUSING BE MADE AVAILABLE TO A PERSON WHOSE
  TENANCY WOULD CONSTITUTE A DIRECT THREAT TO THE
  HEALTH OR SAFETY OF OTHERS OR WHOSE TENANCY WOULD
  RESULT IN SUBSTANTIAL PHYSICAL DAMAGE TO THE
  PROPERTY OF OTHERS
• This does not include a situation where the
  circumstances of threat can be ameliorated by a
  reasonable accommodation

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Direct Threat

• Cant Exclude individuals based upon fear,
  speculation, or stereotype about a particular
  disability or persons with disabilities in
  general
• Must rely on an individual assessment that is
  based on reliable objective evidence (e.g.
  current conduct, or a recent history of overt
  acts)

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Direct Threat

• The assessment must consider
• The nature, duration, and severity of the risk of
  injury
• The probability that injury will actually occur
• Whether there are any reasonable accommodations
  that ill eliminate the direct threat

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Diagnoses is not important

• Unlike program eligibility, the name of the
  disability does not matter nor does the source of
  income it is how the disability, whatever type,
  affects a persons ability to go about daily life
  activities
• For this reason, asking the label of the
  disability is not necessary
• The nature of the disability does not normally
  have to be disclosed

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Assisting Clients

• A client must need an accommodation because of
  her disability
• Interview the client about her need for the
  specific accommodation
• How will the accommodation help you?
• Have you considered other accommodations?
• Why do you need this particular accommodation?
• Does the housing provider know that you need this
  accommodation and do they know it is because you
  are disabled?

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Assisting Clients

• How does the disability affect daily life
  activities? Questions should be geared to the
  type of accommodation being requested
• Affect ability to walk long distances?
• Climbing steps?
• Stay in your unit alone?
• Take care of yourself?
• Remember how to do routine activities?
• Ask how long this has been occurring
• Ask for examples of concerns
• Are there witnesses who have observed the day to
  day affects of the disability?
• And does the housing provider know you have a
  disability? Who did you talk to? To whom did you
  give specifics?

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Is there a response to the request? If yes,
evaluate it.

• Was the response timely or was there no response?
  Delay may be the same as denial. see e.g. HUD v.
  Ocean Sands
• Did the response address the requested
  accommodation, or was it more like lets make a
  deal? The housing provider must grant the
  request accommodation unless it would be undue
  financial and administrative hardship or a
  fundamental alteration of the program. see e.g.
  United States v. Freer, 864 F. Supp. 324
  (W.D.N.Y. 1994)
• Review the alternative proposed. What does the
  client think of it? If an alternate
  accommodation is offered, why wont it work?
• What would be the burden on the housing provider
  if the accommodation were made? Is there a cost
  burden? An administrative burden? Would it have
  fundamentally changed the operations?
• Did the housing provider impose any fees or
  conditions or requirements on the accommodation?
  That is a separate violation.

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Resources

• www.hud.gov
• www.metrofairhousing.com
• www.gceo.state.ga.us
• www.consumerfinance.gov
• www.nationalfairhousing.org
• www.justice.gov

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