Posted on August 23, 2010 by Scott M. Badami

Reasonable Accommodations and Parking

I get questions concerning handicapped parking spots regularly.  The easy answer to parking space questions is that designating a specific spot as a handicapped parking place with appropriate signage in response to a reasonable accommodation request should be granted. 
 
There is also available guidance concerning the number of van accessible spots.  Those involve the number of spaces in the parking lot and ensuring the parking lot is properly striped.
 
Those are the easier questions.  But, for example, what if a community charges all of its residents a nominal monthly fee to park at the community?  And then a disabled resident makes a reasonable accommodation request that management waive the parking charge.  Must management waive the parking fee as a reasonable accommodation?  The answer is generally no. 
 
This issue was addressed in a 9th Circuit opinion a few years ago discussing the Fair Housing Act (FHA).  The Court noted that the landlord of an apartment complex charged all residents a monthly parking fee that a disabled resident sought to have waived as a reasonable accommodation.  Although a disabled resident may require a car far more than other residents, the court noted that a waiver of the car parking fee would put the disabled resident in a privileged position in relation to other residents -- as opposed to affording them equal opportunity.
 
The Court was clear that there are a number of types of residential fees that affect both disabled and non-disabled residents equally.  And those fees are certainly proper.  Fees that courts will closely review are those with unequal impact -- such as charging more for a select parking space or adding a fee for a service animal.
 
Just A Thought.
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Posted on August 20, 2010 by Scott M. Badami

More on Source of Income As a Protected Class

At first glance, the protected classes sound simple enough.  The federal Fair Housing Act (FHA) lists seven:  race, color, religion, national origin, sex (gender), disability, and familial status (presence of children under age 18 in the household or a pregnant woman).  Some state, city, and county anti-discrimination laws include additional protected classes. 

In response to a client request, we took a look around at the state of the law involving another common protected class which is not in the FHA:  source of income.  Our research found that at least thirteen (13) states and the District of Columbia include source of income as a protected class. Furthermore, numerous cities and counties have identified source of income as a protected class.  We started counting and identified a total of at least forty-three (43) geographic areas that have enacted source of income protection to their anti-housing discrimination laws.  
 
This continues to demonstrate what I have previously noted:  source of income remains an issue that will increase over time as more jurisdictions include it as a protected class.  This is of particular concern to those apartment owner/managers with properties located in various states (or even multiple cities/counties in a single state).  Each management office certainly needs to know the laws of the jurisdiction it is in and our staff should be prepared to answer the source of income question.  It gets more complicated if the apartment owner/manager has a centralized call center dedicated to responding to inquires for various properties located in a number of areas.  In a perfect world, the call center needs to be able to access the law in the various state, cities, and counties.  
 
If you or your leasing office staff get a call about source of income and are uncertain how to respond, take a message and contact competent counsel.  I have seen any number of fair housing cases filed because of either a misunderstanding or just not being aware of how to respond to this important question.   And then you really need to spend time with someone like me.
 
Just A Thought.
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Posted on August 6, 2010 by Scott M. Badami

When Do We Start Defending Against A Housing Discrimination Complaint?

While this may seem a little backwards, in my experience, one of the best things management can do to defend against a housing discrimination complaint is to plan BEFORE any complaint gets filed.  You might ask:  how can I plan to defend against allegations I have not even seen or thought about?
 
Fair point.  But, training our employees to follow the Fair Housing Act (FHA), ensuring written documentation is in every file, appropriately responding to reasonable accommodation/modification requests as well as ensuring the community rules are followed across the board can make a real difference regardless of whatever the specific allegations in a complaint might be.  Remember, in many fair housing cases, the fact is that management must prove our innocence.  One of the best ways to do that is to have good records to provide to the investigator.  We then credibly prove the allegations in the complaint just did not happen.  At a minimum, we can show policies in place to prevent discrimination.
 
A recent case from the Ninth Circuit in California reaffirmed that in a related fact pattern (the facts involved alleged employment discrimination) the defense of any discrimination case starts with implemented policies, practices, and recordkeeping done long before any complaint is filed.  Good advice we all should follow.
 
Just A Thought.
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Posted on August 2, 2010 by Scott M. Badami

HUD Charges an Architect and a Developer With Failure to Build Apartments Accessible to Persons With Disabilities

It happens more and more all the time.  Just last month, the U.S. Department of Housing and Urban Development (HUD) charged a Chicago developer and architect with housing discrimination for designing and constructing apartments that fail to meet the accessibility requirements of the Fair Housing Act (FHA).  Specifically, in this complaint, HUD claims that the building is not accessible to persons with disabilities in several ways, including having doorways that are too narrow as well as kitchens and bathrooms that do not contain adequate or sufficient maneuvering space for those with mobility impairments.  

As I have written in the past here on the Fair Housing Defense Blog, the FHA requires that multifamily housing built for first occupancy after March 13, 1991 contain accessible features for persons with disabilities.  These requirements include accessible common areas, bathrooms and kitchens, as well as wider doors and environmental controls that can be reached by persons who use wheelchairs.  If builders, architects, and/or owners fail to include these features, which makes the property difficult or impossible to use by persons with disabilities, HUD will contend doing so violates the FHA.

In this case, a fair housing tester, who uses a wheelchair, claimed that he was unable to pass through a number of doors, and had difficulty maneuvering in the kitchens and bathrooms (among other issues) and the testing agency brought the case to HUD.

These design and building requirements have been on the books for almost 20 years.  While I certainly want to hear from the other side and I never judge a case solely by what HUD may allege, not knowing the law when you design and/or build a property is not sufficient anymore.

Just A Thought.

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Posted on July 26, 2010 by Scott M. Badami

Corporate and Individual Liability Under the FHA?

One common question we get asked is:  “If one of my staff members violates the Fair Housing Act ("FHA") by discriminating against a member of a protected class, can I be held personally liable as the owner or officer of my company?”  The general answer is no as the FHA does not impose vicarious liability directly upon a corporation’s officers or owners.  The FHA, however, does impose vicarious liability directly upon the corporation, regardless of fault. The Supreme Court addressed this issue in Meyer v. Holley, 537 US 280 (2003).

In that case, the Supreme Court held that the FHA imposed vicarious liability directly upon the corporation without regard to culpability, but that it does not impose liability directly upon the corporation’s officers or owners.  The Court reasoned that Congress legislates against a legal backdrop, in this instance, the backdrop of traditional common law tort principles, which traditionally impose vicarious liability upon principals or employers when the agent or employee commits a tort while acting in the scope of their authority or employment. Typically, a corporate employee acts on behalf of the corporation that employs him, not on behalf of the officers, owners or shareholders of the corporation.  As such, the Court reasoned that Congress could not have “intended to apply any unusual modification of those rules” in the FHA because the FHA is completely silent on the issue. This notion was further strengthened through statements by HUD that ordinary vicarious liability rules apply in this area.

So what does this mean for you as an owner or officer of a business involved in the rental or sale of real estate?  First, make sure you are protected by having your business in the appropriate corporate form.  Second, draft and follow policies regarding the rental and sale of real estate.  Pay particular attention to the rules and requirements contained in the FHA and in HUD regulations.  Train your employees to follow the law and your policies.  

Just a Thought

Article by Christian Moffitt.

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Posted on July 19, 2010 by Scott M. Badami

Advertising a Housing Promotion in a Church Bulletin?

I got a call from a client asking a question related to religion and the Fair Housing Act ("FHA").  The client was looking to increase the number of residents at a particular community by advertising a promotion in a local church flyer.  In short, the ad would have offered church members a discount for renting an apartment at this community.  He wanted to know if that raised a fair housing issue.  He wanted me to tell him it was not a concern because he thought this would be a win-win for both the church and the apartment community.
 
Religion, of course, is one of the protected classes in the FHA.  I had to tell my client that management cannot offer a promotion only to members of one specific religion.  If we offer a special to rent our apartments, we must offer that rate to everyone who applies during the time of the promotion.  In this case, my client's well intentioned idea could have been viewed by some as violating the FHA because one religion would have been perceived to be favored over others as members of one church would have received a discounted rental rate.  And the FHA requires that all religions be treated the same.
 
Advertising housing in church flyers or bulletins -- something that seems exceptionally benign at first blush -- opens up a number of FHA questions that management needs to be aware of.  Or you may need to speak with a lawyer like me.
 
Just A Thought.
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Posted on July 13, 2010 by Scott M. Badami

Can A Single Reasonable Accommodation Mistake Really Cost Management?

Here at the Fair Housing Defense blog, we have regularly discussed the need for management to respond to requests for reasonable accommodations and/or reasonable modifications received from our residents. A recent court decision from California reminds us all of the importance to make sure supervisors are promptly (if not immediately) told of previous agreed-upon accommodations. The following is an employment case, but it provides a good lesson for those of us in the apartment ownership and management business as well. Particularly when management personnel change.

The case involved an employee who returned to work as a cashier after undergoing cancer treatment. Because of the side effects of the cancer treatment, the employee needed to drink plenty of water and, not surprisingly, she needed to urinate frequently. The employer agreed to allow the employee to drink at the check out counter and to provide bathroom breaks as needed. The employer successfully provided these accommodations from January 2004 until February 2005.

A new manager began working at the store in February 2005. For whatever reason, this new supervisor did not know (or was not told) about the employee's disability or the store's accommodation. The employee asked the manager for a break. At the time, the manager was the only employee on duty who could take over for his colleague. The manager asked the employee if she could wait because a delivery truck was arriving. The employee did so. Later that day, when the employee had a line of customers at her stand, she told the manager she needed to go to the bathroom. The manager was unloading merchandise and said he could not relieve the cashier. About 10 minutes later, the cashier again said she really needed to use the restroom. The manager told the employee that he was too busy to relieve her. The employee could not control herself and urinated while standing at her the checkstand.

The employee became severely distraught and developed severe anxiety and depression, including thoughts of suicide. She sued her employer for failing to accommodate her disability under the California Fair Employment and Housing Act (FEHA).  The trial court found in the employee's favor and awarded her $200,000 in damages, including $148,000 for past emotional distress.

The appellate court affirmed, holding that employers can be liable for even a single failure to provide an agreed upon reasonable accommodation. The court rejected the employer's contention that, by not informing the new manager of her disability and accommodation, the employee had failed to meet a continuing duty to communicate. The court concluded that, once the parties have identified and agreed upon an accommodation, the employee does not have a duty to inform every new supervisor of the accommodation.

We should all learn from this defendant's expensive mistake by carefully documenting all reasonable accommodation requests and ensuring that supervisors are up-to-date and that management consistently provide -- and keep track of -- agreed upon accommodations.

Just A Thought.

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Posted on July 7, 2010 by Scott M. Badami

HUD Guidance Regarding Discrimination Based on Sexual Orientation and Gender Identity

As we have discussed on numerous occasions in this blog, the Fair Housing Act ("FHA") prohibits discrimination based on race, color, national origin, religion, gender, disability, and familial status. Acknowledging that the FHA does not explicitly protect against discrimination against persons based on their sexual orientation or gender identity, HUD issued guidance on July 1 to provide its thoughts regarding potential discrimination claims that may arise based on those categories.

For example, HUD will take the position that a landlord who discriminates against a gay man because of the landlord’s belief that the prospective tenant may infect other tenants with HIV likely constitutes actionable discrimination because the landlord is discriminating based on the tenant’s perceived disability as a carrier of AIDS.  Likewise, HUD notes taht a landlord who discriminates against a transgendered person based on their non-conformity with gender stereotypes has likely violated the FHA’s ban on gender-based discrimination.  The new guidance also identifies states that prohibit sexual orientation and/or gender identity housing discrimination, along with contact information for each state’s human rights enforcement authority. Currently, nineteen states and the District of Columbia outlaw discrimination based on either sexual orientation or gender identity.

The issuance of this guidance is hardly surprising in light of the initiatives announced by HUD in October 2009. The proposed rules intended to (1) clarify that the term “family” as used to describe eligible beneficiaries of HUD’s public housing and Housing Choice Voucher programs to include otherwise eligible lesbian, gay, bisexual or transgender individuals and couples; (2) require grantees and those who participate in HUD’s programs to comply with local and state non-discrimination laws that cover sexual orientation or gender identity; and (3) specify that any FHA-insured mortgage loan must be based on the credit-worthiness of a borrower and not on unrelated factors or characteristics such as sexual orientation or gender identity. 

The bottom line is that even though sexual orientation and gender identity are not included in the FHA, many states include these as protected classes.  And as the HUD guidance makes clear, the department will attempt to use existing law to "fit" perceived discrimination against members of those classes.

Just A Thought.

Article by Christian Moffitt.

 

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Posted on June 28, 2010 by Scott M. Badami

Advertising and the FHA

As we have reviewed many times on this blog, the Fair Housing Act (FHA) protects individuals from housing discrimination based on their race, color, religion, national origin, gender, disability or familial status.  Additionally, some states and localities include additional protected classes in their laws, such as source of income or sexual orientation.  But there is more to the FHA than just those protected classes. 

Advertising is also protected under the FHA. This provision in the statute makes it unlawful to prepare, print, or publish discriminatory statements in any type of media. For example, if a management company were to put the statement “no children allowed” in an advertisement for an apartment community which is published in a newspaper, magazine or even over the internet, that could well be considered discriminatory advertising as it would act to limit the housing choices of families with children.

 

Cases interpreting the FHA have made clear that anyone who acts on behalf of the landlord can also be held liable for housing discrimination. This includes people such as the owner, management company, property management company employees, maintenance staff members, and real estate agents as well as anyone else who is acting on behalf of the landlord seeking tenants.

 

Think nobody is paying attention to apartment community advertisements? Think again. Many fair housing testers specifically look for advertisements with potentially questionable content and then they file a case with HUD. And then you have to defend against it.

 

Yet another reason to follow the law.

 

Just A Thought.

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Posted on June 18, 2010 by Scott M. Badami

More On Fair Housing Testers

As professional apartment community owners and managers, we try hard to get it right. Combating housing discrimination is part of what we do. It would be naïve, however, to think that errors do not occur. We must be vigilant and we must keep good records. Following the Fair Housing Act and its implementing regulations are prerequisites for anyone in our field.

In addition to following the law, there is another reason not to discriminate: there are many community fair housing and testing entities out there looking to catch us making a mistake. These testers call and/or visit our properties to determine if they can claim discrimination. And then they file a complaint with HUD or a state agency. And then I get involved.

 

One way to test management is to have, for example, an African American call the property seeking an apartment and then have a Caucasian call later in the day seeking the same type of unit. The testers will compare and contrast how they believe each caller was treated. While I have serious questions concerning how leasing office staff members are expected to tell the race or national origin of a person based on a single call (and I have successfully defended against these types of cases), you need to know they are out there. In fact, in one recent study, the testing agency concluded that 54% of the testers “sounding” African American were treated less favorably than the testers “sounding” Caucasian.  That is an extraordinary figure and even if only a portion of the findings are accurate, management needs to know these testers are looking to file cases.

 

To be sure, I have seen a number of cases in which the reason for the alleged different treatment was simply because the apartment in question was leased during the interim time between the two calls. If someone else puts a deposit down, the apartment simply is no longer available. And what could have been unlawful discrimination was simply benign leasing office business.

 

It sounds simple but it is always worth repeating: treat all applicants the same. Keep good records.

 

Just A Thought.

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