Like many other industries, I have recently seen an increase in another type of lawsuit against professional apartment ownership/management: complaints asserting that a company website is not accessible to those with a visual disability. The claims are asserted under the Americans With Disabilities Act (ADA) and/or similar state law. While a traditional ADA claim involves physical barriers that confronted disabled individuals (things such as high curbs, seating that is not accessible, narrow doors, or fixtures too high for use by an individual in a wheelchair), lawsuits are now being filed claiming that websites (and mobile apps) for apartment communities violate the ADA as they are similarly not accessible. The claim is that someone with a vision impairment cannot review the pictures or other graphics from their computer and, as such, the website violates the ADA.

To date, courts are generally split regarding if a website qualifies as a place of “public accommodation” under the ADA. There are various tests and theories concerning how web sites should be evaluated and courts will continue to issue rulings as more of these cases reach some type of judicial resolution.

There is another possible defense in that as the U.S. Department of Justice (DOJ) has failed to issue guidance concerning the appropriate alt text standards required of websites (indeed, DOJ has now specifically reversed course and disclaimed its prior intent to issue guidelines), how can a company be charged with violating a statute when the federal government cannot even decide what the standards are?

There will absolutely be more to come here, but professional apartment management should be on alert as to your website and/or mobile app. You might want to speak with a lawyer like me to run an analysis of your website and to review the possible risks of this type of lawsuit being filed against your company. Think it won’t happen to you? At last count, more than 1,000 of these ADA complaints have been filed nationwide in 2018, a number that is already more than the 800 cases that were filed throughout 2017.

Just A Thought.

As written in this space many times, an important responsibility for professional apartment management is to know the laws where you have properties. While our federal Fair Housing Act (FHA) has seven protected classes (race, national origin, color, religion, sex, disability, and familial status) many states (as well as some cities and counties) have similar fair housing laws with additional protected classes. And in addition to monitoring changes in the law, another caveat is to also be aware if an agency changes how it interprets existing law. Such is the case in Pennsylvania – in which the Pennsylvania Human Relations Commission (PHRC) just expanded the definition of “sex” as a protected class to now include not just sex assigned at birth, but also sexual orientation, gender identity, gender expression, gender transition, and transgender identity.

What does this mean in the real world? The change permits LGBTQ individuals living in Pennsylvania to file a complaint with the PHRC asserting housing, employment, education, or public accommodation discrimination based on their LGBTQ status.

This change did not come without controversy, as the Pennsylvania legislature did not amend the Pennsylvania Human Relations Act. Nevertheless, the PHRC believed it to be in the public interest to expand the definition of “sex” and the Commission went through a comment period before issuing the amended guidance. After releasing its proposed change in 2017, the PHRC received over 8,000 comments on the topic. I am sure this change will be subject to a court challenge in the near future.

As the lawyer for apartment ownership/management, what do I want? Simple. My preference is always to have a clear understanding of the law and that the number of ambiguities get reduced as much as possible. If a legislature (federal, state, or local) is going to change the law, fine – just let me know what it is so I can provide the best advice possible. Here, although the Pennsylvania legislature chose not to change the law, the PHRC disagreed and issued guidance in an effort to do what the legislature would not. I will report back as appropriate.

Just A Thought.

A little inside baseball in housing law and policy today. Last week, a federal judge in Washington, DC dismissed a lawsuit filed against the U.S. Department of Housing & Urban Development (HUD) in which the plaintiffs (various housing advocates) challenged how HUD enforces one type of fair housing law. In the case, the court determined that the plaintiffs were unable to prove they were harmed by a Trump Administration decision to effectively suspend a rule from the Obama Administration which required communities to address certain type of housing discrimination.

In the complaint, various housing advocates asserted that HUD (through Secretary Ben Carson) had dismantled a May 2015 decision which included use of a computer assessment tool that allowed HUD to oversee whether communities complied with what is known as the Affirmatively Furthering Fair Housing Rule. The 2015 Rule, which took six years to develop, was hoped to force communities to comply with a provision in the Fair Housing Act that mandates local governments use federal money to combat segregation in residential housing. The rule did this by requiring more than 1,200 local communities which receive federal funds to draft plans to desegregate residential housing or risk losing the federal money. The computer assessment tool was developed to analyze housing patterns and poverty as well as differences in jobs, school, and transportation. Once these facts were developed, the 2015 Rule required local governments to address the issues.

In dismissing the complaint, the court concluded it could not “micromanage [HUD’s] choices on program implementation” and that HUD was entitled to withdraw the Obama-era Rule. In a statement following dismissal of the case, HUD noted it “remains deeply committed to the Fair Housing Act and will continue to live up to the spirit and letter of the law” and HUD further believed the computer model was “confusing, difficult to use, contained errors and required an unsustainable level of technical assistance.” HUD stated it will “craft a new, fairer rule that creates choices for quality housing across all communities.”

The takeaway: Affordable housing advocates hoped to use the 2015 Rule as a way to force local governments to act in situations where certain low income housing are believed to have substandard health and/or safety concerns for the families forced to reside there. Those efforts will continue, but not with the computer assessment tool.

Just A Thought.

Professional apartment management companies continue to face an ever increasing number of emotional support animal medical verification letters that are purchased over the internet following just a few clicks on a computer and use of a credit card. As leasing offices do our best to ensure the medical verifications are legitimate (and we want to approve assistance animals for those Americans who are truly disabled), I nevertheless wind up defending against any number of housing discrimination complaints asserting that management is required to accept letters purchased over the internet.

In an effort to help with the review and evaluation process of these emotional support animal medical verification letters, here are some of the issues to be on the lookout for:

1.  Emotional Support Animal “Registration” Services. Many of the web sites promise to send you an animal registration card to somehow confer magical rights. The truth is assistance animals are not required to be registered. There is no government agency that “registers” these animals.  There is no legitimate approved list.
2. Instant Approval. A medical verification should come from a licensed or otherwise credentialed health care or medical professional. I find it exceedingly unlikely that any reputable therapist or doctor would instantly approve an emotional support animal based on an online questionnaire and essentially a one-time self-diagnosis.
3. Bargain or Low Cost Verification Letters. The law intended that an assistance animal medical verification letter come from a licensed therapist or doctor who has an established relationship with a patient. Sounds good, right? But go online and you will easily find what I refer to as the exceedingly questionable internet sites that sell emotional support animal medical verifications for $69.99 (or $149 in you want both a housing and an airline letter) charged on a credit card.

While my leasing offices will always engage in the interactive process with a resident or applicant who makes any reasonable accommodation request, more management companies are seeking supplemental information when we see 10 or 20 of essentially the exact same letter from a handful of the same online sources. There are other red/yellow flags, but these three are common.

In addition to getting the complaints dismissed, my other goal is to educate the investigating agency to make certain they know about the fake internet sites.

Just A Thought.

At the end of last month, the U.S. Department of Housing & Urban Development (HUD) issued a formal charge of housing discrimination against the developer, owner, construction company, and architect of a multifamily property in New York, asserting that the parties failed to design and construct a condominium development in Queens, NY in compliance with the accessibility requirements of the Fair Housing Act (FHA).

The FHA, of course, mandates that multifamily housing built after March 1991 contain accessible features for disabled individuals. These requirements include accessible kitchens, bathrooms, common areas, wider doors, and lower controls that can be reached by residents who use wheelchairs. These design and construction features are required to be included in order for multifamily properties to be in compliance with the law.

HUD’s charge of discrimination followed an investigation which was started with the filing of a discrimination complaint back in 2012 by a resident at the property asserting that the Respondents designed and constructed a building with any number of inaccessible features. As a part of its investigation, HUD conducted an on-site inspection and claims it discovered various design and construction problems. Specifically, HUD now asserts the property lacks safe and accessible routes between units and common areas in addition to issues with the property’s main entrance, hallways, shared outdoor terrace, patios, trash rooms, and its parking garage. Finally, HUD’s complaint alleges its investigation revealed multiple violations inside individual units, including inaccessible doors, bathrooms, kitchens, and environmental controls.

The case will now be heard by a HUD Administrative Law Judge, unless one of the parties chooses to send the case to federal court. As regular readers of this space are aware, I always know there are at least two sides to every story and that a complaint simply puts forward one side. The takeaway for defense lawyers like me, however, is that we need to advise our clients to follow the design and construction requirements contained in the law/regulations. Indeed, there are even safe harbors to help prevent complaints like this.

Just A Thought.

As predicted in this space a couple of months ago, on June 20, 2018, the U.S. Department of Housing & Urban Development (HUD) published a notice of proposed rulemaking in the Federal Register entitled “Reconsideration of HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard.”

What’s going on here?  Here is a summary, in English (as opposed to legalese):

“Disparate impact” involves testing a rule or a policy that looks neutral on its face, but which has a discriminatory impact on a protected class. While the phrase “disparate impact” is not contained in the text of the Fair Housing Act (FHA), courts have read the phrase into the law, most recently with a 2015 U.S. Supreme Court decision, which held, by a 5-4 margin, that “disparate impact” can be used in certain circumstances. It was clear to the Obama Administration that a “disparate impact” case was likely to reach the Supreme Court (as two prior FHA cases were accepted by the high court but those matters settled prior to the justices issuing a decision).

In an effort to bolster the use of “disparate impact” in fair housing cases, HUD adopted a Disparate Impact Rule (if I recall correctly, in 2013) discussing how “disparate impact” can and should be used in fair housing matters. Now, the Trump Administration is taking another look at HUD’s 2013 rule to see if indeed it is consistent with the Supreme Court’s 2015 FHA decision.

With its notice, HUD is requesting public comments related to:

1. Are the Disparate Impact Rule’s burdens of proof appropriately assigned?
2. Does the Disparate Impact Rule’s definition of “discriminatory effect” strike the appropriate balance for legitimate claims? In other words, are legitimate claims protected and are unmeritorious claims discarded?
3. Should there be a safe harbor or other defenses to claims of “disparate impact” liability?
4. Should the Disparate Impact Rule be revised to improve clarity, reduce uncertainty, decrease regulatory burdens, or assist the housing community and the public in determining just what is lawful under the FHA?

Comments to HUD are due on or before August 20, 2018. I am not breaking new ground here in predicting the Trump Administration’s view concerning the appropriateness of “disparate impact” in fair housing claims will be different from that of the Obama Administration.

As the lawyer for professional apartment management, my view continues to be that I want clarity in the law. I want to be able to tell my clients the rules of the road. If “disparate impact” is included in the FHA, fine. If it is outside the statute, just let us know. Uncertainty, however, is not helpful as we attempt to provide the best advice we can.

There will be more to come here.

Just A Thought.