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.
My last post about reasonable accommodations related to smoking as a potential disability generated a few reader comments. Which is great. Here is how smoking and a disability related reasonable accommodation play out in the real world, particularly in the world where more apartment communities are eliminating smoking altogether. Indeed, for many years smoking has been largely prohibited in common areas and the leasing office. Now, many apartment owners are taking the next step and including a provision in all new leases (and lease renewals as they come up) to forbid smoking in individual apartment homes as well.
Most of the time when management hears from residents concerning smoking, it is because someone has a sensitivity to second hand smoke or is allergic to smoke. And smoke from one apartment drifts into another apartment. And one resident will submit a reasonable accommodation request asking to transfer units, install window and/or door seals, fresh air machines, and the like. In these circumstances, management will engage in the interactive process and seek a solution that works for both valued residents. Professional apartment management employees are in the business of keeping residents and satisfied residents are much more likely to renew their leases with us.
But what about the situation where a resident suffering from depression and/or anxiety (which can certainly be recognized disabilities) submits a reasonable accommodation request with a note signed by a doctor or health care provider. The note says that the resident suffers from depression and smoking alleviates the symptoms. And as a reasonable accommodation to the resident’s disability, management is requested to waive its no smoking policy. While every circumstance requires an individualized review, permitting smoking as a reasonable accommodation for a disability seems backward as related to health and I doubt a court would require us to do so. Now, make no mistake, management will still work with the resident to find a way to resolve the request. One solution might be to let the resident out of his lease without an early termination penalty as a reasonable accommodation. There could be other solutions, depending on the disability and individual request. The worst option, of course, would be to ignore the request and fail to respond to it.
Just A Thought.
I get this question from time to time: “Do you have a list of recognized disabilities under federal law and/or the Fair Housing Act (FHA).” Unfortunately, the answer is no. There is no complete list of disabilities to review like a checklist. Now, that being said, many disabilities are universally recognized while others are appropriately certified by a medical/mental health care professional. There is, however, one habit or custom that is not recognized as a disability under applicable law: smoking.
While legal under federal law, when it has been raised, the courts have concluded that smoking is not a disability. The cases have noted that a resident who smokes may not invoke the anti-discrimination laws (such as the FHA or Americans with Disabilities Act (ADA)) seeking a policy change to permit them to smoke indoors, because “Congress could not possibly have intended the absurd result of including smoking within the definition of ‘disability,’ which would render somewhere between 25% and 30% of the American public disabled under federal law because they smoke.” Back in 2001, a U.S. District Court in Maryland held that even assuming that the ADA fully applied in a specific case, “common sense compels the conclusion that smoking, whether denominated as ‘nicotine addiction’ or not, is not a ‘disability’ within the meaning of the ADA.”
So, what is the point? Because smoking is not a recognized disability, management does not have to permit it to be used to ask for a reasonable accommodation or reasonable modification. Indeed, my experience teaches that requests for reasonable accommodations are routinely made by non-smokers with medical conditions that are related to second hand smoke or smoke allergies. Resident with these types of disabilities may well have legal protections from exposure to smoke under the FHA and management is required to review and then evaluate their reasonable accommodation requests. Does that mean you should treat your residents who smoke as second class citizens? Of course not. Only that smoking cannot be used to require you to grant a reasonable accommodation or reasonable modification request.
Just A Thought.
It is a standard part of our business practice in today’s world that professional apartment management implement a background screen for all applicants for housing. The background screen typically has criminal, income, and credit components. An issue that comes up from time to time is what to do about applicants and/or residents with criminal histories. HUD regulations make clear that management companies are permitted to develop and enforce guidelines that we believe are in the best interest of our employees, our property, and our other residents.
Some criminal issues are easy: applicants with a history of crimes of violence, drug use, or sexual misconduct are simply disqualified. Many other offenses are in a gray area and management companies typically work from a list of offenses as to what may, or may not, disqualify an applicant from living in a given apartment community. Another related factor is just how far back can management look into the past of an applicant? One year? Five years? Forever? While various housing advocates have recommended that HUD implement a definition for a “reasonable time” – at least to date the government has not done so. And, in fact, the HUD guidance notes that it is up to the discretion of each management company to develop and implement its admission policies. Indeed, while HUD views a five year look back as appropriate for many serious crimes, the government recognizes that some housing providers have a different view. I have clients who look at different offenses in different manners — neither is necessarily right, neither is necessarily wrong. And neither is against the law.
Also, as you think about background screens – remember that criminals or individuals with a criminal history are not a protected class under the Fair Housing Act. Typically the claim will be that a restrictive criminal background requirement has a “disparate impact” on one (or more) of the protected classes in the law.
Just A Thought.
I have written in this space before that HUD continues to spend our federal tax dollars to investigate and test for housing discrimination. HUD does this, in part, by giving money to various entities across the country with the mission of partnering with the federal government to investigate and probe housing providers to ensure compliance with our Fair Housing Act (FHA) and similar state laws.
Indeed, just last week, HUD announced that it awarded $38 million to over 100 fair housing organizations and other non-profit agencies in 43 states (and Washington, DC) to “address housing discrimination.” These grants are funded through HUD’s Fair Housing Initiatives Program (FHIP) which was created to help enforce the FHA by the use of hiring fair housing testers and funding investigations designed to catch discriminatory housing practices. The grants are also intended to provide money for education and training for housing providers, local governments, and victims of housing discrimination. $29 million of the money was designated to assist local non-profit fair housing groups to carry out testing and various enforcement activities. Another $5.5 million went to groups to educate the public and housing providers about fair housing rights/responsibilities. The final $3.6 million was awarded to groups primarily engaged to focus on the rights and needs of underserved groups, such as rural and immigrant populations.
HUD’s view remains that it lacks the necessary manpower to fight housing discrimination on its own and that fair housing partner agencies partners are vital to their efforts to combat unlawful discrimination. That is all well and good, but my concern has long been that testers are – by their very nature – not telling the truth when they pretend to show interest in an apartment at one of my communities. And that troubles me. Am I implying that each and every tester is unethical? I am not. Does that mean I believe no discrimination complaint has merit? Of course not. Management company employees certainly make mistakes from time to time. And then we work to get it right. I am just looking for a level playing field and would like to work with HUD (and its partner agencies) to develop a methodology that is both proactive and does not promote unneccessary complaints. Increased training and fair housing education come to mind. Indeed, as most cases in 2014 concern allegations that management failed to appropriately engage in the interactive process related to a reasonable accommodation or reasonable modification request from a resident with a disability, this is likely an area where HUD, professional aparment management, and fair housing community groups could all find some common ground.
Just A Thought.
Fair Housing Defense Blog readers may recall that the issue of whether claims of “disparate impact” are cognizable under our Fair Housing Act (FHA) have twice recently come before the U.S. Supreme Court. And both times the appeals settled prior to the high court hearing the cases. In my last entry on this point, I noted that other “disparate impact” cases were going to wind their way through the federal courts. And indeed, just last week, the Supreme Court granted certiorari (legalese for taking the case) with respect to a case from Texas in which the court will again test the viability of “disparate impact” under the FHA.
In The Inclusive Communities Project Inc. v. Texas Department of Housing and Community Affairs et al., No. 12-11211 (5th Cir., Mar. 24, 2014), the Fifth Circuit identified what it believed to be the correct legal standard in FHA disparate impact cases. The facts involve a challenge to the formula under which the Texas Department of Housing and Community Affairs allocates low-income housing tax credits and if that formula violates the FHA (as well as the Constitution and another federal statute). The facts of the case revolve around if the Texas agency disproportionately approved tax credits in largely minority neighborhoods and rejected tax credits in predominantly white communities. The claim, essentially, was that the this formula skewed the process and resulted in almost no low-income housing tax credit units in nonminority areas.
Following a bench trial, the district court concluded that there was a “disparate impact” claim under the FHA. During appellate review, after acknowledging that it has previously recognized the “disparate impact” theory under the FHA in 1996 and again in 2009, Fifth Circuit panel declined to revisit the issue that had twice been to the Supreme Court (but which the court ultimately did not decide). In an effort to get this issue decided once and for all, the Texas agency requested that the U.S. Supreme Court directly address the viability of “disparate impact” under the FHA. And the court agreed to hear the appeal.
Although there have been two prior false starts over the past couple of years, by granting the request to take the case, the Supreme Court has signaled its determination to resolve this question. One side will contend that “disparate impact” has been a recognized part of our FHA (and civil rights) jurisprudence for more than 40 years. The other side will claim that “disparate impact” is nowhere in the text of the FHA and it is up to Congress to amend the law if those claim are to survive. I suspect we will get a decision this time.
Just A Thought.