Fair Housing Defense : Fair Housing Lawyer & Attorney : Fox Rothschild Law Firm : Federal Fair Housing Act (FHA), Discrimination Complaints

The Fair Housing Act ("FHA") was adopted in 1968 and later amended to add additional protected classes. The original 1968 law was designed to prevent discrimination based on: race, color, religion, and national origin. In 1974, the FHA was amended to prevent discrimination based on sex.  In 1988, the FHA was again amended to add handicap (disability) and familial status as protected classes. 

In addition to federal law, some state laws and local ordinances provide additional protections based on categories including: source of income, marital status, sexual orientation, occupation, age, and criminal history. 

The FHA covers most housing. In some circumstances, the FHA exempts owner-occupied buildings with no more than four units, single family housing sold or rented without the use of a broker, and housing operated by organizations and private clubs that limit occupancy to members.

The FHA protects: 

• residents,
• applicants,
• and prospective applicants.

 Those are easy. The FHA, however, also protects: 

• the guests of your residents,
• fair housing testers,
• and management company employees. 

Under the law, it is illegal to retaliate against an employee who helped a resident, applicant or prospective applicant to exercise his or her rights under the FHA. 

Indeed, from my experience, HUD remains very concerned when they believe any type of retaliation has taken place. If such an allegation comes up, do your best to confront it first. If you do not and a complaint gets filed, I will have to deal with it later.

Just A Thought.

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A "reasonable accommodation" is a change, exception, or adjustment to a rule, policy, practice or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling. To show that a requested accommodation may be necessary, there must be an identifiable relationship – or nexus – between the requested accommodation and the individual’s disability. 

Relatively simple reasonable accommodation requests are those that seek a designated handicapped parking spot or waiver of a "no pets" policy.

The harder decisions come when a request has nothing whatsoever to do with the claimed disability. Additionally, a reasonable accommodation can be denied if providing the accommodation is not reasonable – for example, if it would impose an undue financial or administrative burden on the housing provider or if it would fundamentally alter the nature of the provider’s services.

Also, a housing provider has an obligation to provide prompt responses to a request for a reasonable accommodation. An undue delay in responding to a requested accommodation may be deemed to be a failure to provide that reasonable accommodation.

A reasonable modification is a structural change made to existing premises occupied (or to be occupied) to a person with a disability in order to afford such a person full enjoyment of the premises. Reasonable modifications can include structural changes to interiors and exteriors of communities as well as to common and public use areas. A request for a reasonable modification can be made at any time during a residency.

As with a reasonable accommodation, to show that a requested modification may be necessary, there must be an identifiable relationship – or nexus – between the requested modification and the individual’s disability. Furthermore, the requested modification must be reasonable. Examples of modifications includes grab bars in bathrooms or lowering of kitchen cabinets to a height suitable for persons in a wheelchair.

The general rule concerning costs involving reasonable modifications is that the resident is required to pay for them at conventional communities and that management is required to pay for them at affordable communities. To be sure, there are many times when management at a conventional property will work with a resident and engage in some type of cost sharing in an effort to further attempt to meet the needs of our valued residents.

The bottom line is to work with your residents and engage in the interactive process contemplated under the FHA and its implementing regulations. If management cannot grant the request for an accommodation or modification, is there an alternative accommodation or modification that would effectively address the requester’s disability-related needs? If there is, you should propose it. And you should document in writing your proposed solution.

Just A Thought.

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Not necessarily. The Fair Housing Act provides no remedy for neutral restrictions.

In September 2001, the Shoreline Towers Condominium Association adopted rules prohibiting mats, boots or objects of any sort be left sitting outside owners’ unit entry doors. The rules also banned signs on doors or in hallways. The rules were not initially enforced against religious symbols. When the hallways were repainted in 2004, all religious objects were removed in preparation for the painting. At that time, the association’s board interpreted the rules to prohibit religious (as well as other) items and ordered the maintenance staff to keep the hallways and doors clear.

When the hallway painting was completed, the residents replaced their mezuzah on the doorpost, according to Jewish tradition. The mezuzah was removed by the association because of the rule.

The residents filed suit under §§804 and 817 of the Fair Housing Act, 42 U.S.C. §§3604, 3617, and one of the implementing regulations, 24 C.F.R. §100.400(c)(2). By the time of their lawsuit, the association had adopted a religious exception to the rules, but the residents sought damages for distress they claimed in the interim, plus an injunction to prevent the association from removing religious symbols in the future. The District Court (N.D. Ill.) granted summary judgment to the condominium association. The residents appealed.

The Seventh Circuit noted that the Fair Housing Act addresses discrimination in the sale or rental of a dwelling, not discrimination after the sale. Religiously motivated harassment must be addressed, if at all, under different laws. The Court concluded that religious harassment so severe as to make a dwelling unavailable on religious grounds might be actionable under the Fair Housing Act, but here the rules were religion neutral—they targeted all objects, not just religious objects.

The residents sought a religious exception to the rules, which they described as an accommodation. According to the Court, however, the Fair Housing Act does not provide a remedy for the failure to make accommodations on the basis of a particular religion.

The majority held that deciding whether a religious accommodation must be required and how far the obligation extends is a task for the legislature. The Religious Land Use and Institutionalized Persons Acts stops with land use and prisons.

The Seventh Circuit affirmed the judgment of the District Court. The case is Bloch v. Frischholz, 533 F.3d 562 (7th Cir. 2008).  According to this Court, the Fair Housing Act requires accommodations for disabilities but not for religious beliefs and practices.

As this case proves once again, issues dealing with religion are among the most personal and emotional.  Apartment management companies and their employees must work to ensure that all religions are respected and treated appropriately.

Just A Thought.

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