I see this issue come up literally on a weekly basis now. A resident (or applicant) likely attempting to avoid pet fees and charges by claiming that a pet is actually a service animal. I have written in this space before that anyone falsely claiming to be disabled and in need of a service animal (in addition to outright lying) denigrates everyone who legitimately needs a service or companion animal. Remember that service or companion animals are exempt from pet fees and pet rent. But that is not the point of this post.
If you are disabled and require a service or companion animal, my clients typically ask you to complete a reasonable accommodation verification form (unless your disability and need for the service animal is obvious). The form seeks medical confirmation of the disability and then a nexus as to how the accommodation will assist with your housing. Most of these requests are promptly approved at the community level and never reach my desk.
Last week, the request was from a resident with dyslexia who sought approval for a service animal to assist her. Now, my understanding is that dyslexia is typically characterized by a difficulty with learning to read and/or comprehension issues despite normal or even above-average intelligence. While I am certainly not a medical professional and I understand dogs can be incredibly helpful, I could not find a link between dyslexia and how a service animal could assist with reading or comprehension. As such, we could not approve the dog as a service animal. To be sure, I had management write that we will absolutely evaluate any supplemental information the resident may have with respect to any type of link between her disability and accommodation request.
This week, the request was from a resident who has been unhappily paying pet rent for a number of months, after initially denying that he had a dog. In any event, management received a note indicating that the resident’s wife had been in a car accident and Rover was, in actuality, a service animal to assist the resident’s wife. While there is no question that a service animal could assist someone recovering from certain injuries suffered in a car accident, I wrote that we will need appropriate medical verification and link between the disability and the services to be provided by the animal. I have not heard back yet, but the week is far from over.
I am not making these up. I wonder what next week will bring?
Just A Thought.
The U.S. Supreme Court considered the Fair Housing Act (FHA) earlier today when it held oral argument in a Texas case to answer the question if “disparate impact” claims are cognizable under the FHA. Essentially “disparate impact” is a way to find liability under the FHA even if the defendant did not have a discriminatory intent – if a policy or policies have a “disparate impact” against a protected class, then there can be liability under the law.
While the statute itself is silent as to the practice, case law over the intervening decades has approved of the disparate impact theory. Today marked the first time the Supreme Court heard argument on the issue, notwithstanding that two prior disparate impact cases had reached its docket. The prior two cases (one from Minnesota and one from New Jersey), however, both settled before argument at the Supreme Court, thus ending the chance for the Supreme Court to rule.
As happens often these days, the Court’s perceived liberal justices appeared to support the disparate impact theory while the conservative justices raised concerns over the use of the practice. That being said, Justice Scalia asked some questions and made some comments that have Supreme Court watchers thinking his vote may not be so easy to predict here.
The lawyer for those challenging the law argued that developers, landlords, and housing agencies may grow so fearful of a disparate impact suit that they will do too much to help minorities, creating what he called a functional equivalent of an unlawful quota system. Defending the statute, the Administration contended that that disparate impact suits discourage practices that harm minorities without justification, such as apartment-occupancy limits that disproportionately affect ethnic groups with large families. Additionally, the parties battled over if it was possible that 11 appellate courts had misread the intent of the FHA for the past 40 years.
What should happen? What will happen? Well, the Court should issue a decision before July. From my seat as management’s lawyer, I know our preference is to know what the rules of the road are. Once the issue is decided, so be it. But uncertainty is not good for anyone. Do I have a prediction? Yes. And I will keep it in an envelope in my desk. I will open it for you when the decision is issued.
Just a Thought.
One of my favorite posts of the year — the Top Ten Fair Housing Defense Blog entries of the previous year, as ranked by readers. Yes, my Firm keeps score. You can click on any article and you will be directed to that post.
#1: Third Time The Charm? “Disparate Impact” and the FHA Is Back Before the U.S. Supreme Court (October 9, 2014)
#2: Justice Department Announces $317,000 Fair Housing Act Case Settlement (January 9, 2014)
#3: Here is a Reasonable Accommodation Request Checklist (July 8, 2014)
#4: Medical Marijuana as a Reasonable Accommodation Because of a Disability? One Court Says No (December 12, 2014)
#5: Is Management Obligated to Provide a Reasonable Accommodation if an Accommodation Has Not Been Requested? No. (January 27, 2014)
#6: Retaliation Complaints and Eviction Actions: Here is How They Intersect (April 30, 2014)
#7: HUD Announces Over $38 Million in Grants to Combat Housing Discrimination (October 21, 2014)
#8: Is Smoking a Recognized Disability Under the Fair Housing Act? No. (November 3, 2014)
#9: Criminal Background Screening and Fair Housing (October 31, 2014)
#10: Some Guidance on Verifications for Reasonable Accommodation and Reasonable Modification Requests (May 28, 2014)
These articles reflect a good mix of topics of interest to those of us in the fair housing arena. Always remember that if you have specific questions, you might want to speak with a lawyer like me.
Just A Thought.
Happy New Year Fair Housing Defense Blog readers. Your humble editor starts another year with a question related to a reasonable accommodation request. Specifically, what can or should apartment management do to verify an accommodation request? Here are some simple guidelines:
1. If a person’s disability is obvious or known (and the need for the requested accommodation is also known), then management should not ask for any more information. For example, if a resident in a wheelchair submits a reasonable accommodation request seeking a handicapped parking spot, no further verification is needed.
2. If the disability is obvious or known (but the need for the accommodation is not known), then management should seek only information required to verify the need for the accommodation. To illustrate, if an individual with a mobility impairment requests a service animal, management may be entitled to confirm the disability-related need for the service animal.
3. If neither the disability nor the need for the accommodation is readily apparent, management can seek verification of both the disability as well as the need for the accommodation. An example of this type of request would be if an applicant with an diagnosed anxiety issue seeks an assistance animal. Many leasing offices have a simple form that a resident can complete and get verified by his/her health care professional.
Make no mistake, apartment management company employees do not want to unnecessarily delve into the personal medical history of any resident or applicant. We are only attempting to comply with the Fair Housing Act and appropriately respond to each reasonable accommodation or reasonable modification request we receive. If you have a specific question about a request and/or how to respond to it, you might want to speak with a lawyer like me.
Just A Thought.
A Fair Housing Defense Blog reader asked me to attempt to unscramble the various statues in play that apartment management professionals must work with. So, here is a short summary:
Although legislation to specifically combat housing discrimination had been pending in Congress for many years, it took a galvanizing event (the assassination of Martin Luther King) to overcome Senate opposition to the bill. Congress moved swiftly after Dr. King’s death and passed Title VIII of the Civil Rights Act of 1968 – which we know today as the Fair Housing Act (“FHA”). As originally adopted, the FHA prohibited discrimination in housing on the basis of race, color, religion, or national origin.
Congress initially attempted to combat discrimination against individuals with disabilities at the national level by adopting civil rights legislation prohibiting discrimination by federal employers as well as within programs that receive federal financial assistance. That law, the Rehabilitation Act of 1973 (“the Rehabilitation Act”), contains what is known in our world as “Section 504” and provides a supplemental basis for ensuring that individuals with disabilities receive the full benefit of their housing and are not discriminated against in federal programs because of their disabilities. The regulations which implemented Section 504 were amended over time to make clear that housing providers were required to evaluate and respond to reasonable accommodation requests received from disabled residents and applicants.
In 1974, Congress amended the FHA to prohibit gender discrimination.
In 1988, Congress again amended the FHA, this time adding protections for familial status and disability. As such our current FHA has seven protected classes. And various state, city, and county fair housing laws often can (and do) include additional protected classes not listed in the federal FHA.
Next, when Congress was drafting the Americans with Disabilities Act (“ADA”) in the early 1990’s, the legislators looked to the reasonable accommodation matrix taken from the Rehabilitation Act to design a reasonable accommodation provision within the ADA and to ensure that a failure to reasonably accommodate an individual was included in the definition of discrimination under the ADA. Indeed, Congress then went back and amended the Rehabilitation Act to include the same reasonable accommodation standards as they wrote into the ADA. Now, as a general rule, the ADA does not fully apply to residential apartments communities – except that the leasing office and any retail space leased to vendors on the property must comply with ADA accessibility guidelines.
Hope that helps. For individual questions dealing with one of these (or other) laws, you might want to speak with a lawyer like me as every case typically involves a fact specific analysis.
Just A Thought.
December is upon us and the holidays are here. Accordingly, what can (and should) my apartment management office do (or not do) with respect to holiday displays and decorations. At this time of year, management is required to balance the religious requests of all, while showing a preference to none. What might be benign to some can be perceived as offensive to others. HUD has stated that while the Fair Housing Act (“FHA”) does not prohibit religious expression, all residents must be treated equally and without regard to their particular religion.
The FHA makes clear that management cannot publish any notice, statement, or advertisement with indicates a preference, limitation, or any type of discrimination based on religion. Furthermore, the applicable regulations prohibit management from engaging in “inherently religious activities” when participating in any activities funded by HUD. “Inherently religious activities” include worship, religious instruction, or proselytism. To be sure, this prohibition is tempered by the qualification that these types of “inherently religious activities” may be offered separately “in time or location” from the programs, activities, or services supported by HUD funds and that participation in these programs must be voluntary. As such, management is tasked to protect the rights of those residents who wish to participate in certain activities as well as the rights of those residents who are of a different faith (or those who have no religion).
The easy choice is to simply ban all holiday displays. But many residents are correctly unhappy because it seems like overkill. Yet others may complain that their specific religion is omitted or another display is perceived to receive preferential treatment. What should a community do? I have recommended that communities have a designated area in which holiday items from various faiths are displayed. Invite residents to participate. Additionally, there is guidance that notes references to Santa, Christmas trees and the North Pole are far enough away from religion so as to lose any prohibited inference. Another option is to remind residents that they can absolutely decorate the interior of their apartments, their doors, (and if appropriate at your specific community) alcoves or areas next to their doors with more overtly religious displays.
As management, we are looking for a policy which appropriately balances the beliefs of all while ensuring we are not perceived to favor one religion over another. And whatever decision you make, just know that someone may not be happy about it. Which may require you to speak with a lawyer like me.
Just A Thought.
In an age when more states continue to decriminalize use of small amounts of marijuana, apartment management employees are getting a more common request: can medical marijuana be a reasonable accommodation because of a disability? Earlier this month, a federal district court answered that question with a resounding no. In a case from Michigan involving an affordable housing community (Michigan permits medical marijuana pursuant to the state’s Medical Marijuana Act), a U.S. District Court judge ruled that because marijuana is still classified as a controlled substance under federal law (in other words, use of marijuana is still against federal law), the resident is not entitled to a reasonable accommodation for medical marijuana use under the Fair Housing Act (“FHA”).
In so ruling, the judge reviewed applicable state and federal law as well as guidance from the U.S. Department of Housing and Urban Development (“HUD”) written in 2011 in which HUD concluded that persons using illegal drugs (including medical marijuana) are categorically disqualified from relief pursuant to the FHA, Section 504 of the Rehabilitation Act of 1973 and/or the Americans with Disabilities Act as the requested accommodation was not reasonable and would constitute a fundamental alteration in the nature of the housing operations.
This decision will certainly not be the last word on this subject, but it is important guidance for apartment management that I wanted to pass along. If you or your apartment community feels stuck in the weeds (pun intended) on an issue like this, you may need to speak with a lawyer like me.
Just a Thought.
Here at the Fair Housing Defense Blog, your humble editor gets the most reader comments concerning two issues: service animals and smoking. If I publish a post dealing with either of these topics, it is likely someone is going to comment (nicely) or disagree (less nicely) with me. Which is fine. That readers actually pay attention to a blog discussing fair housing issues from management’s side is great.
Over the last couple of months, I published two posts on smoking and dealing with smoking-related accommodation requests. I knew it was coming: one reader thought my options were “terrible” and another wrote if anyone would follow it, he or she “would get sued.” I sure hope not. So, again risking your wrath, let’s try to review some issues:
*its negative health impact notwithstanding, smoking remains legal;
*smokers are not (and smoking is not) a protected class under the Fair Housing Act (FHA);
*more apartment communities are going “smoke free” and requiring new residents to sign leases which prohibit smoking, even in individual apartment homes;
*similarly, some communities are requiring residents renewing their leases to sign a “smoke free” addendum;
*other communities continue to permit smoking in apartment units, but prohibit it in common areas;
*if a non-smoker makes a medically verified reasonable accommodation request related to second hand smoke or allergies, management must work with the resident to find a solution;
*there are a number of (non-exclusive) potential solutions that management can (and should) offer as part of engaging in the interactive process;
*if, for whatever reason, solutions which involve the resident staying at the community will not work, another option is to permit the resident to terminate his or her lease early, without paying any early termination fees.
I hope this clears it up and makes sense. You can always talk with a lawyer like me to review a specific factual circumstance.
Just A Thought.
At first glance I was uncertain why this matter reached my desk. A resident at an apartment community submitted a note from her doctor to the leasing office seeking a companion animal for medically diagnosed anxiety. Seems simple enough. Many of my clients deal with routine service/companion animal requests from residents with disabilities without the need for their lawyer. Curious as to why it was sent to me, I read on.
At the bottom of the email chain I spotted the issue. It turns out the companion animal was not owned by the resident who sought approval for the dog, but was owned by a friend of the resident who would come visit from time to time. And both the resident and her friend wanted to bring the dog over to our community. And the property has a “no guest pets” policy.
In all the HUD and related guidance I have read on the topic of service or companion animals, it appears to be universally presumed that the animal is owned by the resident or applicant with the disability. Indeed, the whole point of a service or companion animal is to be with the disabled owner to provide assistance or comfort as needed. After some research, I did find source material which indeed confirms that a service or companion animal must actually belong to the resident seeking the animal.
As I have written before in this space, while management will absolutely work with our residents and approve their legitimate service/companion animal requests, this is an area where we see some abuse and leasing offices around the country remain concerned that some residents attempt to avoid pet rent and fees (or attempt to get around a “no guest pets” rule) by claiming their dog is a companion or service animal. Is it possible that a health care professional might certify that an animal owned by one person was needed as a service or companion animal for another person from time to time on visits to a community with a “no guest pets” rule? I guess it is possible, but let’s call that one highly unlikely.
Just A Thought.
Earlier this month, HUD announced that it had settled a disability discrimination case against the owner and manager of a 500 unit affordable apartment community in Illinois. The resolution required ownership to pay $255,000 to settle claims that it violated the fair housing laws in that the community failed to meet the needs of individuals with disabilities and then by retaliating against a resident with a disability because the resident requested a reasonable accommodation.
The allegations that made up the complaint involved two individuals with disabilities who, it was claimed, were unable to use their housing because management assigned a mobility impaired resident to a third floor unit in a building lacking an elevator and then threatened to evict the resident because she had her adult daughter (who was acting as a caregiver) living with her in the apartment. Under the terms of the settlement, in addition to the financial component, ownership will now work to develop a new reasonable accommodation policy and will conduct a needs assessment of current residents who require accessible housing to determine if their needs are being met. The agreement also includes a provision to ensure that five percent of the community’s units are full accessible.
As a defense lawyer, I know there are always two sides to every case and I certainly do not rush to judge any matter in which I am not involved. Just note that the settlement amount here ($255,000, including a portion designated as attorney’s fees) is exceedingly large and likely reflects the strength of the case. Also, HUD (as well as city, state, and local fair housing agencies) takes a stern view when retaliation is alleged and management always needs to ensure we have appropriate documentation to prove we did not retaliate.
Just a Thought.