As apartment management company employees review and evaluate reasonable accommodation and reasonable modification requests, there are many times in which the leasing office believes it needs supplemental information in order to confirm that a resident’s request is indeed reasonable and comports with the law. In seeking additional information (such as in a circumstance in which a resident has provided a medical verification for an emotional support animal which appears to have been purchased over the internet), however, there are a number of questions management cannot ask. Remember, we are not seeking detailed medical records or confidential health care information.  Indeed, I was involved in one situation in which a treating physician’s office sent over patient medical records.  I had the records sent back with a short note.

Examples of questions that should not be asked (and this list is not exhaustive) include:

*You don’t look like you need an assistance animal. Why do you have one?

*Why do you receive social security disability benefits?

*What medication do you take to treat your disability?

*Can you walk up and down the stairs on your own?  What health care records do you have to back that up?

When we receive a request, the leasing office simply seeks legitimate information which confirms a disability (if the disability is not apparent) and provides a nexus (legalese for a link) between the disability and the requested accommodation or modification. Also, remember that while we will work to approve service and emotional support animal requests, an assistance animal can be excluded from an apartment community when that animal’s behavior constitutes a “direct threat” to other residents, the property, or to leasing office employees and the resident takes no effective action to control the animal’s behavior such that the direct threat is eliminated or at least mitigated.

Just A Thought.

 

Although it comes up most frequently when I review emotional support animal reasonable accommodation requests under the Fair Housing Act (FHA), the issue of just who is “disabled” is one for all of us in the professional apartment management field to understand. Under the law, a person is considered as “disabled” when there is a physical or mental impairment which substantially limits one of more major life activities, there exists a record of such an impairment, or if the person is regarded as having such an impairment. A major life activity is typically thought of as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and/or working. This is, of course, not an exclusive list and management must be prepared to evaluate each request based on the needs of any resident who reaches out.

Not all conditions rise to the level of a disability. For example, just because someone is diagnosed with anxiety – it does not necessarily follow that the person is disabled. It is absolutely true that some forms of anxiety are disabling such that the person is considered disabled under the law. Just not that every case of anxiety (or another condition) rises to the level where a reasonable accommodation or reasonable modification request is appropriate. Now, before anyone fires off an angry email, read this paragraph again. In short, there are many conditions (such as chronic mental illness, hearing loss, mobility impairments, visual needs, cancer, HIV, past drug use) which can be a covered disability and that my clients and I will engage in the interactive process with you to resolve. My point is simply that not every condition (particularly a condition that is not obvious or known to the leasing office) rises to the level of a legitimate disability. That is why, of course, management seeks medical verifications for certain accommodation or modification requests.

Also, there are two groups of people who are excluded from coverage under the FHA: (1) current illegal drug users and (2) anyone who poses a direct threat to the health and safety of others or to the property itself. If someone is perceived as a direct threat, management will need evidence as to the nature of the threat and instances of specific conduct. Raw speculation will not suffice. Also, it is a good practice to undertake a review to determine if there is an accommodation that would mitigate the direct threat before moving forward against a resident.

Just A Thought.

December will be here very soon. With the change in the calendar comes Christmas, Hanukkah, and other holidays. Always a great time for kids and families. Santa Claus. Christmas trees. Menorahs. Decorations. For professional apartment management, however, the question of what to do (or not do) with respect to holiday displays and decorations comes up each year at this time. Leasing office staff members are required to balance the religious and holiday requests of all, while showing a preference to none. What some might see as benign can be perceived as offensive to others. HUD’s guidance on this point notes that while our Fair Housing Act (“FHA”) does not prohibit religious expression, all residents must be treated equally and without regard to their particular religion.

The FHA makes clear that management cannot publish any notice, statement, or advertisement which indicates a preference, limitation, or any type of discrimination based on religion. Furthermore, the applicable regulations prohibit management from engaging in “inherently religious activities” when participating in any activities funded by HUD. “Inherently religious activities” include worship, religious instruction, or proselytism. To be sure, this prohibition is tempered by the qualification that these types of “inherently religious activities” may be offered separately “in time or location” from the programs, activities, or services supported by HUD funds and that participation in these programs must be voluntary. As such, management is tasked to protect the rights of those residents who wish to participate in certain activities as well as the rights of those residents who are of a different faith (or those who have no religion). If you have a community room, for example, any resident can sign up and use it. While management should not get in the business of promoting a specific religious practice or activity, the question about decorations remain.

So, what to do? Well, the easy choice is to simply ban all holiday displays. But many residents are correctly unhappy because it seems like overkill. Yet others may complain that their specific religion is omitted or another display is perceived to receive preferential treatment. What are management’s options? I have recommended that communities have a designated area in which holiday items from various faiths are displayed. Invite residents to participate. Additionally, there is guidance that confirm references to Santa, Christmas trees and the North Pole are far enough away from religion so as to lose any prohibited inference. Another option is to remind residents that they can absolutely decorate the interior of their apartments, their doors, (and if appropriate at your specific community) alcoves or areas next to their doors with more overtly religious displays.

As management, we are looking for a policy which appropriately balances the beliefs of all while ensuring we are not perceived to favor one religion over another. And whatever decision you make, just know that someone may not be happy about it. Which may require you to speak with a lawyer like me.

Just A Thought.

 

First, let me go off topic for a minute to wish everyone a happy and healthy Thanksgiving holiday. As I do once a year, I want to give a special shout out to my wife (Hi Sweetie!) to see if she actually reads these posts.

Assistance animal questions continue to dominate reader comments here at the Fair Housing Defense blog. As such, let me highlight a handful of points that regularly come up:

  1. Breed, size, and weight limitations may not be applied to an assistance animal (as they can be for pets).
  2. A determination that an assistance animal poses a direct threat of harm to others or would cause substantial physical damage to the property must be based on an individualized assessment that relies on objective evidence about the specific animal’s actual conduct — not on mere speculation or fear about the types of harm or damage an animal may cause and not on evidence about harm or damage that other animals have caused.
  3. Housing providers may ask individuals with disabilities that are not readily apparent to submit reliable documentation of the disability and the disability-related need for an assistance animal.
  4. Additionally, if a disability is not readily apparent, the leasing office may confirm that the need for the assistance animal continues. I do not suggest management check every three months, but around the time of an annual lease renewal could make sense.
  5. While the typical request is for one assistance animal, the law recognizes there may be circumstances in which an individual requires more than one animal. In such a circumstance, the nexus for each animal can be verified.
  6. Conditions and restrictions that housing providers apply to pets may not be applied to assistance animals. For example, while housing providers may require applicants or residents to pay a pet deposit and pet rent, they may not require applicants or residents to pay a deposit for an assistance animal.
  7. Animal owners must, however, ensure their animals stay under control at all times and clean up after the animals.

Hope that helps.  Enjoy time with family and friends this long weekend.

Just A Thought.

 

A Fair Housing Defense blog reader sent me a question about live-in aides which I thought I would answer with some general guidance in a post.

First, in order to have a live-in aide, a resident would need to meet the definition of “disabled” (or handicapped) in the Fair Housing Act (FHA). Unless the need for the aide is obvious, management may obtain a medical verification confirming the need for the aide. The live in aide is considered a reasonable accommodation under the FHA.

A live in aide qualifies for residency for as long as the disabled resident requires the services of the aide and remains a resident.   In other words, if the resident leaves the community, the live in aide does not automatically convert to a resident with rights to the apartment home. I typically recommend that a lease addendum be used to confirm that the aide acknowledges he or she has no rights to the unit without the resident he or she is assisting. The addendum should also give management the right to evict the live in aide if he or she violates any house rule (as is the case with every resident).

Next, I always recommend that a live in aide be required to meet your property’s screening criteria – other than credit (as the aide is not responsible for rent).  In my view, the aide should be screened based on the same criminal screening procedures that management has for reviewing applicants. Also, while a live in aide is counted for the purpose of determining the appropriate unit size (such that the aide can be entitled to their own bedroom), if a unit with a separate bedroom for the aide is not available, as a general rule, the resident should not be denied his or her aide, even in a smaller apartment. If a larger unit becomes available and the resident requests a transfer to the larger apartment, management should consider such a request as a reasonable accommodation. As a part of evaluating the request, however, management is entitled to charge what is likely to be higher rent for a bigger apartment home.

Hope that helps.

Just A Thought.

 

The Department of Justice (DOJ) recently announced that it has settled a handful of cases in which plaintiffs made allegations of sexual misconduct under the Fair Housing Act (FHA) and resulting discrimination. In one case, DOJ resolved a complaint filed against a Housing Authority in Indiana in which the allegations concerned sexual misconduct and discrimination based on disabilities. Another case, this one from Michigan, also involved allegations of sexual discrimination. Shortly after announcing a resolution of these cases (as well as another from Kansas), the DOJ announced an initiative to combat sexual harassment in housing.

The Michigan action resulted in the owner of rental properties agreeing to pay $150,000 to settle allegations that he sexually harassed multiple women who lived in or inquired about his rental offerings. Under the terms of an agreement, the defendant promised to pay $140,000 to ten victims of discrimination as well as a $10,000 penalty to the United States. The complaint asserted that the defendant made unwelcome sexual comments and advances, engaged in unwanted touching, offered housing benefits in exchange for sexual acts, and threatened to take adverse housing action against women who refused his harassment.

The Indiana case was filed after an investigation demonstrated that employees of a local Housing Authority subjected female residents to unlawful sexual harassment and discriminated against residents with disabilities. The complaint asserted women were subjected to unwanted sexual conduct, questions, making explicit comments, and showing inappropriate pictures and videos. The claims also included denying reasonable accommodation requests (including efforts to be transferred to first floor units and efforts to obtain designated accessible parking spots). To resolve the matter, the Housing Authority agreed to pay $70,000 to compensate seven victims of discrimination.

The initiative – which will be piloted in Washington, D.C. and in western Virginia – will work to identify barriers to reporting sexual harassment and search for new ways to cooperate and collaborate between local law enforcement, legal service providers, and public housing authorities to leverage their respective expertise. In announcing the initiative, DOJ noted that it has recovered over $1 million for victims of sexual harassment in housing in 2017.

Given the increased media attention and coverage of allegations of sexual harassment of women in various walks of life, I believe this is a good time for professional apartment management to take a look at our policies in place to prevent sexual harassment and perhaps even to schedule some refresher training. Indeed, one client contacted me last week to schedule a session.

Just A Thought.

A real world example of developing a community without knowledge of or procedures to comply with the Fair Housing Act (FHA) is on display in Maryland right now. A developer started work on a community (with just under 60 homes) overlooking a river north of Baltimore. A number of homes were built and some people bought the first group of houses. All good, right? Not so fast.

When the developer ran into financial troubles, he stopped working on the partially completed project. Last year, an immigrant from Pakistan joined forces with another developer to restart the project. Their goal was to build a retirement community for a certain Muslim sect. The stated plan was to build a “peace village” for Muslims age 55 and over with a mosque. 22 of the homes were sold. Construction was restarted.

At that point, various officials and other residents complained, asserting that the developer was violating the fair housing laws because the homes were now being marketed toward only Muslims. Indeed, one local real estate agent filed an administrative complaint with HUD asserting she could not get information about the community to market to her non-Muslim clients. Certain language on a website was deleted. Complicating matters further is another lawsuit, filed in U.S. District Court, claiming that the county  stopped issuing the necessary building permits because it was “motivated by racial and religious animus to keep members of the Islamic faith from purchasing lots and exercising their religious freedoms.”

So, is this religious intolerance? Is it steering (directing certain people to certain homes)? Would anyone have cared if the developer was catering to a different religion? But doesn’t fair housing mean that people of any faith (or no faith) should be able to buy available homes? On the one hand, religion is a protected class. On the other hand, isn’t it wrong to limit buyers to those of a specific faith? Is the county slowing down permits because of the specific religion involved? What about the daughter of one of the original buyers (who has since passed away) and now wants to sell. Is she limited to only being able to sell to Muslims?  Should “equal housing opportunity” support such a result?  Will prices be artificially depressed if it is perceived the community is segregated?

HUD and the courts will have to sort this all out. In the interim, I suspect there will be more meetings with the county, the developer, and the residents in an effort to find a solution.

Just A Thought.

 

I have written in this space (and elsewhere) about the difficulties encountered by professional apartment management companies in the face of emotional support animal medical verifications from residents that are purchased over the internet for the low, low price of $69.99 (or $125 if you need the letter overnight). In an effort to meet the test in the Fair Housing Act (FHA), these form letters note a “disability” or “impairment” which “substantially limits a major life activity” and recommend an emotional support animal. Management is given no other confirmation the resident ever met with the health care professional or is actually a patient with legitimate mental health needs.

In an important decision concerning medical verifications and emotional support animals, a U.S. District Court judge last week issued an opinion confirming that letters which only provide that a resident has a “mental illness” or has “certain limitations” are insufficient.  The judge was unmoved by such rote language and noted that the resident presented “no medical facts to support her claim she was disabled.” The court also noted the resident identified “no activity, no less a ‘major life activity’ that she claims was impaired by her ‘mental illness’”. The judge then concluded “the diagnosis may be accurate, but it fails to set forth any facts regarding if or how any of [the resident’s] conditions ‘substantially limits’ a major life activity.”

I have a number of clients who are now appropriately raising questions when these internet assistance animal letters are provided as a purported medical verification.  Now, let me make clear – all of my clients will approve legitimate service and emotional support animals for our residents. We absolutely want to comply with the law. But we are seeing an ever-increasing number of residents and applicants turning on their computers and with just a few quick clicks (and a credit card) are buying letters from someone they have never met or otherwise never had any type of real health care professional relationship.

What did the court do? It dismissed with prejudice a complaint alleging management violated the FHA by seeking supplemental information to confirm that an emotional support animal reasonable accommodation request was legitimate.

How did I learn about the case? My Fair Housing Defense group wrote the briefs.

Just A Thought.

 

Pursuant to an agreement announced last week, the U.S. Department of Housing and Urban Development (HUD) announced that it resolved a discrimination complaint filed by local housing advocacy groups against Maryland’s Department of Housing and Community Development (DHCD). The complaint challenged the fairness of Maryland’s Low-Income Housing Tax Credit (LIHTC) program.  As detailed by HUD, the resolution puts forward policies, incentives, and more flexible program rules that are designed to streamline the designation/construction of affordable housing in various neighborhoods in and around Baltimore.

With respect to housing, the deal as crafted is hoped to develop up to 1,500 new affordable units. Of those 1,500 units, more than 1,000 are slated to be new construction. In a change to state policy, developers of affordable housing will no longer have to satisfy certain local scoring or approval criteria before applying for state-allocated tax credits.

The resolution ends six years of litigation that was filed by a group of housing and civil rights organizations. The plaintiffs argued that Maryland’s policy of requiring local jurisdictions to approve proposed affordable housing projects prior to the allocation of tax credits to fund construction essentially stopped affordable housing from being developed in predominately White areas. As such, according to the complaint, housing opportunities for African American and Hispanic families were wrongfully limited in and around Baltimore.

Pursuant to the settlement, the DHCD will: end the requirement of local approvals; mandate that at least 1,500 units of affordable family housing are developed certain areas in and around Baltimore region; amend plans to now award points to any proposal to develop family housing in a community of opportunity (including providing more of an incentive for homes with two or more bedrooms); expand affirmative fair housing marketing activities; and pay $225,000 to promote the mission of the local fair housing groups.

Just A Thought.

 

In a case involving the Americans With Disabilities Act (ADA), the U.S. Court of Appeals for the Seventh Circuit issued a new opinion which details the elements of a retaliation cause of action under the Fair Housing Act (FHA). The facts involved a special education teacher who was laid off as a result of an unsatisfactory performance review. The teacher challenged her review by defending her teaching methods, not by asserting she was advocating on behalf of any students or that she was exercising rights under the ADA.

After confirming that the interference provision of the ADA was modeled after the retaliation language contained in the FHA, the court made clear the following elements that would be needed to prove a retaliation claim under the FHA: (a) that the plaintiff engaged in activity protected by the FHA; (b) that the plaintiff was engaged in, aided (or encouraged others) to exercise or otherwise enjoy their FHA-protected rights; (3) the defendant coerced, threatened, intimidated, or interfered on behalf of the statutorily protected activities; and (d) the defendant was motivated by an intent to discriminate. Applying this test to the evidence in the ADA case, the Seventh Circuit concluded the plaintiff’s facts were insufficient and affirmed the trial court’s summary judgment decision in favor of the defendant. The appellate court concluded a dispute of teaching methodology did not rise to the level of asserting rights under the ADA on behalf of disabled students.

The takeaway for professional apartment management companies and employees? Under the FHA, while retaliation claims absolutely exist, it is clear that a plaintiff must be able to demonstrate a specific protected activity that he or she was attempting to assert and either an intent to discriminate or at least a causal connection between the protected activity and the challenged action.

Just A Thought.