Posted on November 23, 2011 by Scott M. Badami

Reasonable Accommodation Update: DOJ Files Another Case Concerning Service Animals

The Justice Department filed a lawsuit this week against a university and various university employees in Nebraska alleging violations of the Fair Housing Act (FHA) by discriminating against students with disabilities.

The lawsuit, filed in the U.S. District Court for Nebraska, alleges the university and its employees engaged in a pattern or practice of violating the FHA by denying reasonable accommodation requests by students with psychological or emotional disabilities who sought to live with emotional assistance animals in university housing. The case also alleges that the defendants required students with psychological disabilities to disclose sensitive medical and other information that is unnecessary to evaluate their accommodation requests.  This lawsuit began following a complaint filed with the Department of Housing and Urban Development (HUD) by a student who requested an emotional assistance dog.  

 

As we have reviewed any number of times in the Fair Housing Defense blog, reasonable accommodation and reasonable modification requests must be reviewed/responded to in a timely basis.  The law is clear that management can only request enough medical information to confirm that the disability is recognized and that the accommodation (in this case a service animal) is reasonably related (or has a nexus) to the disability.  DOJ's suit seeks a court order prohibiting future discrimination by the defendants, monetary damages for those harmed, and a civil penalty. 

 

Now remember, I am a defense lawyer.  The complaint is only an allegation of unlawful conduct. There is always another side to the story and I want to hear from the defense before drawing any conclusions.  But management (in this case a university) must always consider and respond to reasonable accommodation/modification requests.  Or you may well face an action like this.

 

Just a thought.

Tags:
Posted on November 22, 2011 by Scott M. Badami

Can Management Restrict Families With Children to the First Floor? No.

The Department of Justice recently filed suit against the owners of three apartment complexes in Massillon, Ohio. The government alleges that the owners of three communities engaged in systematic discrimination on the basis of race and familial status. Regular readers of this blog recognize, of course, that the Fair Housing Act (FHA) explicitly forbids such discrimination. 

In the Complaint, the government alleges that the defendants have (1) denied apartments to African-Americans; (2) misrepresented the availability of units to African-Americans; and (3) treated similarly situated African-American tenants and Caucasian tenants differently. In addition, the owner of the apartment complex has allegedly discriminated against families with children by refusing to rent them upper level apartments and by restricting them to basement-level apartments. The government’s investigation began as a result of numerous complaints from not only residents, but also the owner’s own property managers.

 

More than 40 years after the enactment of the FHA, it should go without saying that apartment owners cannot discriminate against anyone on the basis of the color or national origin. Owners and management representatives I know work to fight against such unlawful discrimination. While I always want to hear the other side of the story, even the filing of a lawsuit can have a severe negative impact on an apartment owner’s reputation, not only within his or her local community, but also on a national level. As a result, it’s imperative that all property owners and management take affirmative steps to ensure that discrimination is not occurring on their properties and to implement policies and procedures to comply with the FHA.

 

This case also poses an interesting question – Can property owners discriminate against prospective tenants with small children by restricting them to lower level apartments? It’s easy to see the lure here. Many property managers have been confronted, oftentimes repeatedly, by the resident of a lower level unit who complains about the noise caused by running and jumping children who live in the apartment above them. And what looks like an easy fix is to simply put children on the lowest floor. While you may sympathize with solution, however, you must remember the obligations imposed on you by the FHA – you cannot treat a tenant with children differently than a tenant without children. That means that you cannot do what the defendant in this case has allegedly done by sequestering families to lower level units. If the downstairs tenant has a problem with noise, you can address problems as they arise and determine the best way to deal with noise issues on a case-by-case, day-by-day basis. 

 

Because if you restrict families with children to first floor units, you might need to speak with a lawyer like me.

 

Just a thought.

 

Article by Christian Moffitt.

Tags:
Posted on November 2, 2011 by Scott M. Badami

Protected Classes: We Must Know the Laws in the Jurisdictions in Which We Operate

As readers of this blog know, the federal Fair Housing Act (FHA) contains seven protected classes:
 
    Race;
    Color;
    Religion;
    National Origin;
    Gender;
    Disability; and
    Familial Status

 While most of these are self-explanatory, "familial status" essentially means a community cannot discriminate against families with children or women who are pregnant.  But these seven classes do not tell the entire story.  Professional apartment owners and managers must also know the laws in the states, cities, and counties in which you have properties.  For example, if you are located in California, state law has added protections for:

      Age
      Ancestry
      Gender Identity 
      Marital Status
      Sexual Orientation 
      Medical Condition
      Source of Income

Furthermore, the California Supreme Court has noted that protections against unlawful discrimination are not necessarily restricted to these classifications.  State law is intended to cover all arbitrary and international acts of discrimination on the basis of personal characteristics.
 
Now, for those of you not in California. your state and/or local laws may have some of these other protected classes.  Here is the bottom line:  it is incumbent on management to follow the laws of our jurisdictions.  Trust me -- saying you were not aware of the law will not be an effective defense should you get sued for housing discrimination.
 
Just a Thought.

 

Tags:
Posted on November 1, 2011 by Scott M. Badami

DOJ Files Yet Another Fair Housing Act Case

From time to time I include in the Fair Housing Defense blog new cases filed by the Department of Justice (DOJ) and/or the Department of Housing and Urban Development (HUD) dealing with the Fair Housing Act (FHA).  Just last month, DOJ filed a lawsuit against the manager and owner of the Geneva Terrace Apartments, a community in La Crosse, Wisconsin, alleging discrimination against African-Americans who were seeking to rent apartments at the complex.

 

The complaint, filed in the U.S. District Court for the Western District of Wisconsin, alleges that the manager and owner of Geneva Terrace told prospective African American renters that apartments were not available when they were, while telling prospective white renters that there were apartments available.

As alleged in the complaint, in 2009 and 2010,  the community manager told an African-American couple who were interested in renting an apartment in Geneva Terrace that there were no apartments available, even though the complex had posted a sign advertising vacancies.  The couple found it suspicious and asked a white friend to contact the complex. It is alleged that the white friend  was told there were available apartments.  The couple then reported their experience to a nonprofit fair housing organization.  That organization conducted fair housing tests, which  it is alleged in the complaint confirmed that  the community manager  was telling African Americans that apartments were not available when they were while showing available apartments to white persons. 

 

The couple also filed a complaint with HUD, which conducted an investigation and, after issuing a charge of discrimination, referred the matter to DOJ.   The lawsuit seeks an order prohibiting the defendants from engaging in future unlawful discrimination.  It also seeks payment of a civil penalty and monetary damages for the persons who were refused the opportunity to rent at Geneva Terrace because of their race. 

As I have written before, as a defense lawyer I always know there are two sides to the story and I always look forward to hearing what the defendants will say.  However, this case provides yet another compelling reason to ensure all of us in the professional apartment ownership and management business continue to follow the law and ensure that our communities and employees do not discriminate.  DOJ and HUD -- along with fair housing testers -- continue to probe and file new cases.  You do not want to be next.   If you are, you may need a lawyer like me.

Just a Thought. 

Tags: