Last week, the Department of Justice (DOJ) announced a $110,000 settlement of a fair housing case filed in November 2013 in which the owner/management of a condominium community in Minnesota was accused of discriminating against families with children. The complaint asserted that the defendants unlawfully discriminated against residents with children by issuing and enforcing rules regarding the use of common areas at the property. The resolution includes an agreement from the defendants to establish a new non-discrimination policy in accordance with the Fair Housing Act, undergo fair housing training (which will specifically address issues involving families with children), pay a $10,000 penalty to the United States, and pay $100,000 to six families alleged to have been the victims of the discrimination.
As asserted in documents associated with the case, the defendants allegedly engaged in a pattern of discrimination by creating and enforcing rules in a manner that prevented children from equal enjoyment of common areas and by making statements that indicated a preference against families with children. The complaint alleged that the defendants required children to be supervised at all times when in a common area, prohibited or unreasonably restricted children from using the common areas and selectively enforced the common area rules by issuing warnings and violation notices to residents with children, but not to adult residents engaging in the same activities.
This case is yet another reminder that management must do more than simply allow families with children to live at our communities. We must also give families appropriate access to the common areas and amenities. If you draft your community rules and policies in such a way as to be able to be read in a manner which discourages or otherwise limits access to families, you very well may need to speak with a lawyer like me.
Just A Thought.
A Fair Housing Defense blog reader asked me to further explain the housing discrimination question that was argued before the U.S. Supreme Court back in January. Let me see if I can do it without using too much (if any) legalese. The federal Fair Housing Act (FHA) states it is against the law to discriminate against individuals based on their membership in one (or more) of seven different classifications: race, color, national origin, religion, gender, disability, or familial status. The claim in most cases is that a landlord refused to rent (or charged higher rent or failed to accommodate someone with a disability) because the individual is a member of one of the protected classes. To phrase it another way, the landlord specifically acted against the individual because he or she fit into one (or more) of those categories and the landlord did not want to deal with that person.
In addition to this type of direct discrimination, the bulk of the case law from the last 40 years has also concluded that policies (even those that appear neutral as written) having a “disparate” (read –negative) impact on members of a protected class are also actionable under the FHA. The words “disparate impact,” however, are not contained in the FHA. And that is the legal issue which came to the Supreme Court.
Over the past several years, a certain group of Supreme Court justices have criticized efforts to read more into federal statues than the actual words convey. They invalidated a portion of a law a while back and had previously accepted two cases concerning the FHA “disparate impact” question. Those two cases, however, settled prior to the Supreme Court hearing oral argument. As such, the cases were dropped from the docket and the Court did not issue any guidance on this issue. In an effort to support the “disparate impact” theory, the Administration published new federal regulations in 2013 which attempted to confirm that “disparate impact” claims are indeed a long-standing and important component of the law. And it noted decades of federal court cases approving of the “disparate impact” theory in housing cases. Those challenging the law, however, saw only a transparent effort to prop up a reading of the FHA that does not contain the very words at issue. The challengers also complain that the Administration was involved in settling the two prior FHA cases that had been pending before the Court in an effort to prevent the justices from deciding (read — overturning) the point of law.
I expect the Supreme Court will issue a decision in the FHA case at some point before the end of June. I have a prediction as well as a tally of the vote by the justices in an envelope in my desk. I will report back.
Make sense? Just A Thought.
Some smaller apartment management companies use online services (such as Craigslist) to efficiently (and inexpensively) run ads for their rental apartment units. Which is just fine. However, if you use an online service to promote your vacancy or community, please don’t take short cuts and avoid complying with the Fair Housing Act (FHA). Many Craigslist ads, which are typically short, can be read in such a way as to infer that management is not following the law. To illustrate, phrases such as “perfect for a single” or “has stairs” or “ideal for a student” or “on a busy street” – which may well all be true and which may have absolutely no overt discriminatory intent, can be read as discouraging families with children from applying. Familial status, of course, was added to the FHA back in 1988. And saying that “I did not know the law,” will not make for an effective defense.
Don’t think your electronic ad will be seen by a fair housing tester? Think again. Fair housing testers hire people to view online ads and then pose as applicants in an effort to catch management violating the law. This is what happened to a real estate firm in Massachusetts who just recently settled a familial status housing discrimination claim concerning online ads. The firm ended up paying $17,000 to resolve the claims as well as agreeing to various fair housing training and implementing anti-discrimination policies.
Similarly, I do not recommend a line that says your property is “just down the street from the local Catholic church.” Again, a statement that could well be accurate and could appear neutral. But a fair housing tester will assert that such a statement discourages members of other faiths from seeking your rental unit because you are promoting one religion over another. And religion is a protected class in the FHA. Think I am making this up? I was involved in a situation years ago in which an apartment owner wanted to run a promotion in a church flyer offering rental discounts to members of the congregation. I had to advise it was not a good idea, because such a promotion could be viewed as supporting one religion to the detriment of members of different faiths.
As the recent case from Massachusetts demonstrates, advertising compliance remains an issue we all must work to get right. Or you might need to see a lawyer like me.
Just A Thought.
My previous blog post, dealing with the request from a resident to permit a 30 pound boa constrictor as a companion animal generated a few comments from readers. As the internet can be a raw, unfiltered place from time to time, here at the family-friendly Fair Housing Defense blog I don’t post the comments from readers, although I do review them. Safe to say that some readers were appalled that anyone would consider a 30 pound snake a companion animal (particularly with one toddler at home and another child on the way). Another reader was aghast that I would even question the request as my post obviously shows bias in that I don’t know anything about snakes. (Which, by the way, is true).
Another, more helpful, reader included a link to a reported decision from a federal judge in Washington state from 2006 in which a resident from an apartment community sought a boa constrictor as a companion animal.
The point of the post was to again note the wide range of reasonable accommodation requests received by management. And that while our leasing office team members will absolutely review and evaluate each request, there are some that we just cannot do. I also see (and want to report on) what appear to be some requests from residents simply attempting to avoid pet rent and pet fees by getting their pets classified as service or companion animals. Indeed, one of my clients got another such request this week. I worked to draft a careful response indicating why the medical verification (which rejected the designation that the specific dog should be a companion animal) did not support the request.
Oh, how did the court rule on the request that a boa constrictor be permitted as a companion animal? The judge rejected the request.
Just A Thought.
I had a different Fair Housing Defense blog entry ready for today, but it will wait until next month. I got a call this morning from a lawyer in Michigan who, like me, represents professional apartment management companies. His clients face many of the same issues surrounding reasonable accommodations and reasonable modifications that mine work to resolve. From time to time we share stories and review issues of interest to lawyers working to prevent housing discrimination claims. Today we talked about service animals who assist our disabled residents.
I have written many times in this space that service or companion animals are not limited to dogs, although dogs are by far the most common animal used by our residents. I have seen reasonable accommodation requests seeking approvals for a variety of other animals – but today’s request was one for the books: a resident at an apartment community in Michigan (who is pregnant and who has another young child) submitted a reasonable accommodation request to keep her 32 pound boa constrictor as a companion animal. That is a new one on me.
First, I look forward to the medical verification confirming the nexus between the resident’s disability and the snake. At first glance, I don’t see it. While most management companies do not keep medical professionals on staff, that verification might indeed be one to take a closer look at. Next, while the reasonable accommodation regulations are clear that management cannot reject a companion animal solely because it is a specific breed or based on a generalized fear – I would have a real concern that a 32 pound boa constrictor would indeed cause a direct threat to the other residents (including children) and the leasing office team. I would be willing to bet that if another resident has seen the snake, he or she would be legitimately afraid of it. I know many parents of young children would similarly have a legitimate fear about a boa constrictor living next door.
Again, while management absolutely has the responsibility to engage in the interactive process with every resident who seeks a companion animal, we have the same responsibility to all of our residents to do our best to provide housing that is safe and free from danger. A 32 pound boa constrictor around young kids in an apartment community as a companion animal? Fair to say I am just a bit skeptical. I will report back as I learn more here. In the interim, I now have a new example for my next fair housing training seminar.
Just A Thought.
I wanted to give a shout out to the Institute of Real Estate Management (IREM) and the IREM 2015 Tri-State Conference and Expo held yesterday and today at the Borgata Hotel in Atlantic City, NJ. The good people at IREM were kind enough to invite me to speak at their conference. While my topic was management’s responsibilities when receiving reasonable accommodation and reasonable modification requests – I also promised that I would give conference attendees the “magic” list of all necessary reasonable accommodations and reasonable modifications. Indeed, our group spent almost 90 minutes yesterday afternoon discussing reasonable accommodations and reasonable modifications in general as well as going into specifics concerning recognized disabilities, types and format of requests, how to respond to requests, service animals, companion animals, restricted breeds, size limitations, pet fees and pet rent, direct threats, medical verifications, early lease terminations, changing rental due dates, ramps, thermostats, and parking spaces – just to name some of the topics we went through. It was an extremely useful exercise to get real world questions from property management professionals on the front lines working with our residents and applicants.
Oh, and that “magic” list of accommodations? It does not exist. We also discussed that management must review, evaluate, and respond (in writing) to every request. While we absolutely do not necessarily have to grant every request, we must consider each and every one we receive. And always remember to engage in the interactive process to: (a) comply with the law; and (b) to avoid having to deal with lawyers like me.
Just A Thought.
I got a question from a client concerning use of illegal substances and if use of an illegal substance qualified as a disability under applicable fair housing law. The short answer is that individuals who currently use illegal drugs are specifically excluded from protection pursuant to the Fair Housing Act (FHA), Section 504 of the Rehabilitation Act of 1973 (Section 504), and the Americans with Disabilities Act (ADA). That being said, both federal and state law distinguish between individuals who currently use illegal drugs as contrasted with individuals who are not currently using drugs, but who have a history of addiction.
On a related note, individuals with alcoholism are treated differently under Section 504 as contrasted with the FHA or ADA. HUD’s regulations concerning Section 504 are clear that current alcohol abuse prevents that person from being considered an individual with a disability and prevents those individuals from participating in federally funded housing programs. The analysis is the same with respect to an individual whose current alcohol abuse would constitute a direct threat to the property or to the safety of other residents or members of the leasing office team.
While the FHA’s definition of an individual with a disability can be read to alcoholism as a covered disability, the law also provides for a general exclusion for any individual who residency would pose a direct threat to the safety/health of others or which could damage the property, provided that a reasonable accommodation could not eliminate the threat.
Please remember these comments present general guidelines. Each leasing office must engage in the interactive process with your residents and applicants in an effort to appropriately evaluate the circumstances presented by each individual. Sometimes, you end up speaking with a lawyer like me in an effort to try to get it right.
Just A Thought.
I have written in this space before that there is no complete list of just what can be included as a reasonable accommodation under the Fair Housing Act (FHA). The reason is that every disabled individual can have different needs related to his or her specific disability. Management’s responsibility, of course, is to review and evaluate each request. That being said, there is some guidance I can provide about what makes up a valid reasonable accommodation claim and what is objectively not reasonable.
To establish a failure to accommodate claim, a plaintiff must prove that: (a) he (or she) is disabled within the meaning of the FHA; (b) he (or she) requested a reasonable accommodation; (c) the requested accommodation was necessary to afford him (or her) an equal opportunity to use and enjoy the dwelling; and (d) the defendant refused to make the accommodation.
Some disabilities are obvious. Others require medical confirmation. In seeking confirmation, management is not attempting to unnecessarily pry into the health history of our residents or applicants. We simply are required to confirm that a disability exists and that there is a nexus (link) between the disability and the sought after accommodation. The law requires management to find those accommodations that may be necessary to afford an equal opportunity to use and enjoy a dwelling. An “equal opportunity” means that a disabled person must be afforded the same opportunity to use and enjoy housing as is provided to a non-disabled person. To phrase it another way, preferential treatment is not required. Another defense to these claims is that an accommodation is not reasonable if it imposes an undue financial burden on management.
How does this work in the real world? Well, in one of my cases a federal appeals court just concluded it would be unreasonable as a matter of law to require management to breach a commercial lease entered into prior to the resident moving into our community to afford the resident the specific accommodation he demanded. That court (correctly, in my view) found that the requested accommodation was simply unreasonable as it would impose an undue financial burden on management. While this result was what we believed the court would find, our preference would have been to avoid legal proceedings, engage in the interactive process with the resident, and work together to find a solution that met the needs of all.
Just A Thought.
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.