Posted on January 30, 2012 by Scott M. Badami

More On Criminal Background Screening and Reasonable Accommodation Requests

As I have written before, it goes without saying that management should run a non-discriminatory criminal background and credit screening check on all of our applicants for housing.  Doing so makes good business sense and helps ensure the safety of our residents as well as the management team.
 
What happens if an applicant has a criminal history as well as a disability?  The applicant will state that he or she needs a reasonable accommodation because of that disability.  In support of such an argument, tenant advocates will contend the Fair Housing Act (FHA) has been (or will be violated) if the reasonable accommodation request is denied based on a criminal record if the prior criminal activity was related to a disability. 
 
At least one federal court has held that a landlord did not need to provide an accommodation in the application context where the housing denial was based on a facially neutral policy which rejected the applicant with a criminal record related to violent crime. See Evans v. UDR, Inc., No. 7:07-CV-136-FL, 2009 WL 1026724 (E.D.N.C. Mar. 24, 2009).  The court concluded that the requested accommodation (in this case for a mentally disabled applicant who was denied an apartment) was not an issue in the case as the applicant was denied because of her criminal background. The FHA was found not to provide protection for those with a criminal history and that management had no obligation to make an exception because the applicant was also mentally disabled.  In other words, the court noted that these are separate issues -- and the landlord has the right to have a “no criminal history policy.”  On the other hand, because nothing is ever easy, a different court in Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833 (2009), found that the resident was entitled to a reasonable accommodation after receiving an eviction notice based on a criminal history.
 
My usual advice in this situation is to develop and put in place a reasonable criminal background policy that you feel appropriate.  What is important is to apply it across the board and not make exceptions.  I am defending against a case right now involving these very issues.  I will let you know how it turns out.  
 
Just a Thought.
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Posted on January 12, 2012 by Scott M. Badami

More on the Posting of Allegedly Racially Offensive Signs at a Community Pool

Many of you read the blog post about the Cincinnati, Ohio landlord who claimed an African American girl’s hair product “clouded” an apartment community swimming pool. And that the young lady’s parents filed a fair housing case claiming that the landlord discriminated against the child by posting a “White Only” sign poolside.

Today, the Ohio Civil Rights Commission voted 4-0 against reconsidering its finding from last fall. The Commission previously found probable cause to believe that the landlord, who is white, violated the Ohio Civil Rights Act by posting the sign at the pool where the girl was visiting her parents.

The parents, who have since moved to another home, filed the complaint and indicated that they wanted to “avoid subjecting their family to further humiliating treatment.” A state investigation concluded that the landlord posted the offending sign on the gated entrance to the pool in May 2011 that stated “Public Swimming Pool, White Only.”  It was reported that multiple witnesses confirmed that the sign was posted, and the landlord indicated that she posted it because the girl used chemicals in her hair that would make the pool “cloudy.”

News reports stated the landlord did not attend today’s hearing. What will likely happen next is that the case will be referred to the Ohio attorney general’s office, the office which would represent the state agency’s findings before an administrative law judge. It is also possible for the parties to reach a settlement before further legal proceedings.

Readers of this blog know I always am concerned when only one side of the story is told, and while we cannot and should not rush to judgment without hearing from the landlord – it is safe to say it would be unwise to post a racially offensive sign at a community pool.

Just A Thought.

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Posted on January 9, 2012 by Scott M. Badami

Should Management Draft A Reasonable Accommodation/Reasonable Modification Policy? Yes.

As your Fair Housing Defense editor reviewed the articles our loyal readers sampled the most during 2011 -- it was clear that many of the most read posts had to do with reasonable accommodations and reasonable modifications as well as steps taken to ensure that residents/applicants with disabilities could have their needs met.  I have written previously that in addition to an equal housing opportunity policy, management should draft a reasonable accommodation policy.
 
The purpose of a policy to address reasonable accommodation and reasonable modification requests is to make certain that requests from residents/applicants are appropriately addressed.  Indeed, a number of years ago HUD published a notice mandating that owners of all HUD subsidized housing have a reasonable accommodations policy. I respectfully suggest, however, that it makes good sense for all property owners/managers have a policy to address reasonable accommodation and reasonable modification requests. 

This type of policy will typically have two components. The first is the public statement of the company's priorities and intentions when working with applicants/residents with disabilities. This statement is similar to the fair housing policy statement, although it specifically addresses the needs of people with disabilities. For example:  "Ownership/Management at ABC Apartments welcomes all to our community and we do not discriminate against individuals with disabilities.  We offer an equal housing opportunity and provide accommodations to meet the needs of individuals with disabilities upon request, provided the accommodation/modification request is reasonable and feasible.  Requests for reasonable accommodations or reasonable modifications should be submitted in writing to the community manager.  Depending on the disability, the applicant/resident may need to provide some limited information from a medical/health care provider to verify the disability.  Management will respond to the request in a timely manner."

The second component of a reasonable accommodations policy is a list of steps for management and the applicant/resident to follow in evaluating the accommodation request.  Consistent use of this list will help ensure that each request is handled properly and consistently over time. 
 
My next post will specifically address some of the issues that management may want to consider in developing a reasonable accommodation/reasonable modification policy. 
 
Just A Thought.
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Posted on January 4, 2012 by Scott M. Badami

Top Ten 2011 Fair Housing Defense Blog Posts

With 2011 now in the books, your friendly Fair Housing Defense blogger thought this might be a good time to review the Top Ten most read of the 48 blog posts during the past year.  Interestingly, they involve any number of items related to the Fair Housing Act and how management must comply with the law. 

  1. http://fairhousing.foxrothschild.com/2011/01/articles/fha-basics/exemptions-to-the-fair-housing-act-not-many-but-here-are-some/
  2. http://fairhousing.foxrothschild.com/2011/04/articles/fha-basics/occupancy-standards-and-familial-status-how-do-they-intersect/
  3. http://fairhousing.foxrothschild.com/2010/11/articles/fha-basics/are-punitive-damages-available-in-a-fair-housing-lawsuit-only-in-extreme-cases/
  4. http://fairhousing.foxrothschild.com/2011/07/articles/disability/can-a-request-to-break-a-lease-be-considered-a-reasonable-accommodation-yes-depending-on-the-circumstances/
  5. http://fairhousing.foxrothschild.com/2011/05/articles/disability/this-is-what-can-happen-if-management-fails-to-appropriately-respond-to-an-accommodation-request/
  6. http://fairhousing.foxrothschild.com/2011/05/articles/fha-basics/huds-increased-fair-housing-activity-management-must-get-it-right/
  7. http://fairhousing.foxrothschild.com/2011/08/articles/fha-basics/criminal-background-checks-how-far-back-can-management-look/
  8. http://fairhousing.foxrothschild.com/2011/08/articles/fha-basics/are-business-cards-considered-advertising-subject-to-the-fair-housing-act/
  9. http://fairhousing.foxrothschild.com/2011/04/articles/discrimination/back-to-the-basics-of-reasonable-accommodations-and-reasonable-modifications/
  10. http://fairhousing.foxrothschild.com/2011/09/articles/fha-basics/remember-that-hud-and-fair-housing-testers-are-reviewing-ads-to-confirm-compliance-with-the-fair-housing-act/

If you want to take a look at any of the most read entries, simply click on the above links.   From your editor's perspective, I was caught by the fact that what you read most are my tips and suggestions about what to do (and what not to do) concerning fair housing compliance as opposed to simply reporting on cases.  Let's see what I can do in 2012 to better meet those reader needs.

Just A Thought.

 

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