Posted on January 24, 2011 by Scott M. Badami

What About the Need to Verify a Disability?

I got a question today that merits a blog entry.  What can or should management do concerning the need to verify or otherwise obtain medical documentation regarding the need for a reasonable accommodation or reasonable modification.
 
HUD's guidelines on this point state that if a disability is obvious (which means visable) and the need for the accommodation is obvious, then there is no need to ask for any verification.  An example of this would be permitting a seeing-eye dog at a community that otherwise does not permit pets.  Management would not charge any pet fee as well as waive the no pet policy.
 
The guidelines also note that if a disability is obvious -- but the need for the accommodation does not appear to be related to the disability, then management absolutely is entitled to seek verification for the specific need at issue.  For example, if a resident in a wheelchair requests that she have a cat as a service animal at a community that does not permit pets, management can certainly ask for verification that the accommodation is related to the disability and is necessary because of the person's disability. 
 
A related issue is just who can verify a disability?  The law provides that a verification be done by a "health care provider" -- a term that can mean a medical doctor or anyone in the health care industry.  This can include individuals such as a nurse practitioner, a chiropractor and/or a therapist.  As a general rule, management does not want to get in the medical arena and we do not want to be hiring our own doctors to set up a battle of experts.  A "credible statement" by a health care provider treating the resident should be all management needs.     
 
Just A Thought.
Tags:
Posted on January 18, 2011 by Scott M. Badami

Familial Status Discrimination and Advertisements: People Are Watching What Gets Published

I have reported in the past about avoiding discrimination against families with children.  The Fair Housing Act (FHA) was amended in 1988 to add familial status as a protected class.  Professional apartment owners and managers must welcome children to our communities.  Running ads for housing that say "No Kids" or "Adults Only" can lead to trouble.  It happens time and time again.
 
For example, in November 2010, the U.S. Department of Justice (DOJ) announced the settlement of a lawsuit alleging that Lee Enterprises, Inc. violated the FHA by publishing an advertisement that discriminated on the basis of familial status in the Elko Daily Free Press in Nevada. 
 
As do so many other actions brought by the DOJ, the case started with a complaint filed by a local fair housing testing entity with HUD alleging that a print ad for rental housing which provided that "no kids" (and pets) were permitted.  HUD issued a charge of discrimination and the DOJ filed a complaint in November 2009.
 
Interestingly, this case was filed against the owner of the newspaper that published the offending ad -- and not the owner of the rental housing at issue.  The publisher paid a small financial penalty, agreed to train its employees not to run these types of ads in the future as well as to file reports with the government.  This case reminds us that the FHA applies to all who participate in the housing industry -- including those who publish advertising for rental housing.
 
 
Just A Thought.
Tags:
Posted on January 10, 2011 by Scott M. Badami

What Can Happen When Management Fails to Address a Reasonable Accommodation Request? Plenty.

Faithful readers know I have reported on this issue time and time again.  Professional apartment owners and management companies MUST appropriately respond to requests for reasonable accommodations or reasonable modifications.  Failing to do so can lead to uncomfortable questions and expensive outcomes. 

On December 22, 2010, the U.S. Department of Justice ("DOJ") reached a $1.25 million agreement with Warren Properties, Inc., that concluded litigation filed following a housing discrimination case filed with HUD.  The charge alleged that management refused to transfer a disabled resident following a request for a reasonable accommodation.

To settle the action, the defendants ultimately agreed to pay $1,195,000 to the resident and another $55,000 in fees and costs to the United States.  Furthermore, the defendants must attend fair housing training and hire a reasonable accommodation facilitator to handle requests for reasonable accommodations from more than 11,000 housing units that Warren Properties manages.  

At the time he moved into the property, the applicant was a paraplegic who required the use of crutches and braces to walk.  In 2007, when the plaintiff applied for a unit at Warren Village, he told them that he needed a first floor unit near the front of the building, due to his use of crutches.  Though no units were available, the management assured him one would be available soon, and they would transfer him.  As such, the resident accepted a second floor unit in August 2007. 

HUD’s investigation found that a first floor unit became available two weeks later, but the resident was not transferred. As a result of having to climb the stairs, the resident fell multiple times and developed an abscess which became infected.  These injuries resulted hospitalization and surgery.  While the resident was recovering in the hospital, the first floor available unit was rented.  The resident left the hospital in February 2008 and was confined to a wheelchair.  Completely unable to access his second floor apartment, the resident was forced to move out.

While these facts are unfortunate and severe, the lesson is clear:  always respond to reasonable accommodation and/or reasonable modification requests.  Make sure you follow up on those requests.  Inaction -- even when it is only benign -- can and will make management look worse than bad.

Just A Thought.

Tags:
Posted on January 4, 2011 by Scott M. Badami

Exemptions to the Fair Housing Act? Not Many -- But Here Are Some.

Title VIII of the Civil Rights Act of 1968 is known as the Fair Housing Act ("FHA").   As we have discussed many times on our Fair Housing Defense blog, that law provides that we cannot be discriminated against in most housing transactions because of our race, gender, religion, national origin, or color.  The FHA was amended in 1988 to include familial status (which is the presence of children under the age of 18) and handicap.

As written, the FHA covers most -- but not all -- housing.  Some exemptions to coverage under the FHA include: (a) owner-occupied buildings with no more than four units (which is commonly known as the Mrs. Murphy exemption); (b) single family housing sold or rented without the use of a broker if the private individual owner does not own more than three such single family homes at one time; or (c) housing operated by organizations and private clubs that limit occupancy to members.

I don't want to focus on the exemptions all that often because the vast majority of apartment housing is covered by the FHA and our professional apartment community owners and management companies absolutely are committed to following the law which prohibits housing discrimination.  However, as a defense lawyer, if I see a case and if one of the FHA exemptions applies -- we need to ensure to use it.

Just A Thought.

 

Tags: