Posted on December 29, 2010 by Scott M. Badami

Where Can Plaintiffs File Discrmination Complaints? Of Course, it Depends on the Claim.

As a lawyer who defends discrimination cases, I get questions about some of the differences between housing discrimation and employment discrimination.  While there are a number of similarities -- there are some important differences to take into account.  The first of which is that an employment discrimination case must be initially filed with the federal EEOC (Equal Employment Opportunity Commission) or similar state agency.  The statute of limitations (how long a plaintiff has to file the claim) is relatively short.  You must receive what is called a "right to sue" letter before filing your case in court.  If a plaintiff files in court before receiving the "right to sue" letter, the case will most likely be dismissed for what is known as "failure to exhaust administrative remedies" -- which is legalese for you did not file in the right place.
 
Housing discrimination is different.  A plaintiff can start his or her discrimination case by filing a complaint with HUD, a state, city, or county agency or a plaintiff can go right to court.  The statute of limitations is also different depending on where the complaint is filed.  Indeed, there are also times when a plaintiff starts a case with HUD and the federal department will refer the case to a state, city, or county agency because HUD has concluded the state law and procedures are similar enough to those in the Fair Housing Act.  The choice of forums is something to evaluate when a case gets started.
 
In most circumstances, management cannot change the forum once a plaintiff has started a case.  But it is important to know the rules of the department, agency, or court in which the case was filed in order to ensure the best possible result for management.
 
Just A Thought.
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Posted on December 22, 2010 by Scott M. Badami

So, Should Management Attend a Fact Finding Conference?

As I have previously written, fair housing investigators (both federal and state) ALWAYS want to work with you to settle a complaint.  They will happily send you a settlement or voluntary compliance agreement ready for management to sign.  To be fair, the Fair Housing Act (as well as the various state anti-discrimination laws) directs that the department or agency attempt to reach an amicable resolution of the action. 
 
As a part of the investigatory process in many states, the agency will unilaterally schedule a fact finding conference.  While each state law can be a little different, the general rule is that there is no requirement that management attend these conferences (although you will not know it from the directive you receive).  Some cases are just so devoid of merit that I find there is nothing that can be gained by spending the time and money to attend.  That being said, there are indeed times when management can indeed put its best foot forward and these conferences can be helpful.  Remember, in the housing discrimination world, there are many cases in which management must prove our innocence.  One of the ways we can do this is to meet the investigator (and sometimes the complainant) face to face and demonstrate a benign reason why we did what we did (or did not do what the complainant said we did). 
 
Another quick point, while the claims in the complaint must set forth more than a generalized allegation of discrimination, remember that the intake official (whether it is federal or state) has the ability to aid the resident in drafting the specific allegations in the complaint.  If you see a complaint that looks like it was drafted by someone other than your resident, the truth is that he or she likely had help.  And you might want help in defending against it.
 
Just A Thought.

 

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Posted on December 8, 2010 by Scott M. Badami

More on Reasonable Accommodations and Reasonable Modifications

My last blog post prompted a couple of questions. So, I thought it was a good idea to provide some additional information about dealing with reasonable accommodation/modification requests.

 

In assessing requests for reasonable accommodations or reasonable modifications, management should consider the factors set forth below.  In appropriate situations, management may request that a resident or applicant provide documentation from a medical professional concerning the applicant’s disability and the relationship of the requested accommodation to that disability.  Leasing office staff should not deny an accommodation request based on a lack of sufficient information without first informing the applicant of its need for additional information and affording the applicant a reasonable opportunity to provide it.

 

A request for an accommodation shall be considered to be “reasonable” as long as it does not create an undue financial hardship and administrative burden or constitute a fundamental alteration to the property’s housing policy. The determination of whether an accommodation constitutes an undue financial and administrative burden shall be made on a case by case basis, taking into account the circumstances and resources available at the time of the decision. If granting the requested accommodation would create an undue financial and administrative burden, management should comply with the request to the extent it can do so without undergoing an undue burden. If granting the requested accommodation would constitute a fundamental alteration its housing policy, management may deny the request.

 

At a conventional property (which receives no government assistance) approved modifications are generally made at the expense of the resident. At an affordable property (which receives government assistance), approved modifications are generally made at the expense of management.

 

An “accommodation” is a change in a rule, policy, or procedure (such as waiving a “no pets” policy for an assistance animal). A “modification” is a structural change (such as grab bars or lowering a mailbox).

 

Make no mistake, if there are a number of different modifications or accommodations that would satisfy the needs of the person with the disability, management can select the option which is most convenient and cost effective, assuming there is no significant detrimental impact on the person requesting the accommodation.

 

Just A Thought.

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Posted on December 7, 2010 by Scott M. Badami

More on Section 504

We spend most of our time on this blog discussing the Fair Housing Act ("FHA") and ensuring that the FHA is complied with.  However, there is more in this arena than just the FHA.  Specifically, housing providers who receive federal financial assistance should be aware of Section 504 of the Rehabilitation Act of 1973 ("Section 504").  Section 504 prohibits discrimination on the basis of disability in any program or activity that receives financial assistance from any federal agency.

This means that persons with disabilities may not be denied housing because of their disability and that management may not impose additional application or qualification criteria that are different than those required of persons who are not disabled.

Section 504 also prohibits housing providers from requiring that persons with disabilities live only on certain floors or to live in one section of the community.  Housing providers may not refuse to make repairs and may not limit or deny someone with a disability access to recreational and other public/common use facilities. 

Now, does this mean that management is required to accept any disabled applicant?  Of course not.  Section 504 simply mandates that a person with a disability be evaluated using the same objective criteria that are applied to persons without disabilities.  Subjective fears, unsubstantiated rumors, speculation and general suspicion do not constitute objective information that can be used to deny an applicant.

Just A Thought.

 

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