Presentation on theme: "Fair Housing and Reasonable Accommodations/Modifications October 3, 2013 Lisa W. Wannamaker, Esq. Coleman Talley LLP."— Presentation transcript:
1Fair Housing and Reasonable Accommodations/Modifications October 3, Lisa W. Wannamaker, Esq. Coleman Talley LLP
2OVERVIEW What is Fair Housing What is protected Under Fair Housing and Equal Housing Opportunity LawsWhat is a Disability and when is a request for an accommodation or modification reasonable?Making Accommodations and ModificationsThe Complaint ProcessScenarios, Questions and Answers
3Fair Housing Quiz Federal Fair Housing laws apply to: A) Only Sales of single family homes.B) Only Rentals of homes or apartments.C) Rental or sales of 1 to 4 unit dwellings.D) Rental or sales of any dwellings.
4Fair Housing QuizAnswer: D) Rental or sales of any dwellings.
5Fair Housing QuizOwners of property must permit disabled tenants and applicants to make reasonable modifications to their residences.A) TrueB) False
6Fair Housing QuizAnswer: B) True. Owners must allow applicants and tenants to make reasonable modifications (e.g. bathtub grab bars, low counters) but Owners may make the Tenants pay for the changes and then may require them to pay to return the property to its original condition upon their move-out, unless the Owner is covered by Section 504 of the Rehabilitation Act.
7Fair Housing QuizResident with personality disorder requests a modification to your pet policy which prohibits pets over 25 pounds policy so that she can have a pit bull as an emotional support animal. Must you allow this?
9What is Fair Housing and Equal Housing Opportunity?
10Why was the Act Established Why was the Act Established? To prevent housing discrimination due to an individual’s race, color, national origin, religion, familial status, gender, or disability. The Fair Housing Act ensures that all persons receive equal housing opportunity in the purchase, sale, rental, leasing, financing, insuring and advertising of housing.June 2011Fair Housing and Equal Opportunity
11It is illegal under the Fair Housing Act for landlords to harass, intimidate, threaten, interfere with, or evict a tenant because of his or her race, color, national origin, religion, familial status, gender, or disability. The same law prohibits the landlord from attempting to evict a tenant for filing a complaint or lawsuit charging the landlord with discrimination.June 2011Fair Housing and Equal Opportunity
12All of the states and many cities have enacted fair housing laws as well. Some of these laws are not as strict as the federal law, but some are stricter because they protect additional classes of persons.June 2011Fair Housing and Equal Opportunity
13WHO IS SUBJECT TO FAIR HOUSING AND EQUAL OPPORTUNITY LAWS? Real Estate operators, brokers and agentsSavings and Loan associations, mortgage lenders, banks, or other financial institutionsProperty managersBuilders, contractors and developersOwners of building lotsAdvertising mediaHomeowners advertising and selling their own homeMultiple listing services and/or real estate related organizationsInsurers and agents
14What is Protected Under Fair Housing and Equal Housing Opportunity?
15Protected ClassesDiscrimination based on the following factors is prohibited:*Race*Color*National Origin*Religion*Sex*Disability*Familial Status
16Disability“Disability” means a person who has a physical or mental impairment that substantially limits one or more major life activities.One can have either a history of the impairment or can be viewed by others as having an impairment.
17What is an “impairment?” Impairment means diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, diabetes, Human Immunodeficiency Virus infection, drug addiction (other than addiction caused by current, illegal use of a controlled substance) and alcoholismNot just physical disabilities—also includes mental disabilities as well as conditions such as cancer, heart disease, diabetes, high blood pressure, mental retardation, emotional illness, etc. which may not be readily apparent to observer
18What does “substantially limits a major life activity” mean? HUD and the DOJ say:The term “substantially limits” suggests that the limitation is “significant” or “to a large degree.”
19What is a “major life activity?” MAJOR LIFE ACTIVITIES INCLUDE:*walking *seeing*hearing *speaking*breathing *learning*working *caring for your daily needs
20Protections based on disability. Newly constructed multifamily dwellings (apartment complexes) with 4 or more units first occupied after March 13, 1991, must provide the following basic accessibility to persons with disabilities:one entrance to the building on an accessible route;accessibility to public areas (i.e., lobby or swimming pool);a door wide enough to accommodate wheelchairs;accessibility to each unit;sufficient reinforcement in bathroom walls to install grab bars;controls low enough for use by a person in a wheelchair; andkitchens and bathrooms designed for wheelchair access.
21 Department of Justice Office of Public Affairs FOR IMMEDIATE RELEASE - Monday, December 27, 2010Justice Department Settles Disability Discrimination Case Against Property Management Company for $1.25 MillionWASHINGTON – The Justice Department today announced a $1.25 million agreement with management company Warren Properties Inc., Warren Village (Mobile) Limited Partnership and Frank R. Warren to settle allegations that the defendants violated the Fair Housing Act by refusing to grant a tenant’s requests for a reasonable accommodation. What is case?June 2011Fair Housing and Equal Opportunity
22Shantae Goodloe Monday (202) 708-0685 May 13, 2013 HUD No FOR RELEASEShantae Goodloe Monday(202) May 13, 2013HUD CHARGES PENNSYLVANIA HOMELESS SHELTER WITH DISCRIMINATINGAGAINST INDIVIDUAL WITH DISABILITIESCity Rescue Mission of New Castle refused to admit blind individual with guide dogWASHINGTON – The U.S. Department of Housing and Urban Development (HUD) announced today that it is charging City Rescue Mission of New Castle (CRM) and one of its employees with refusing to accept a blind man and his guide dog at a homeless shelter in New Castle, PA. HUD’s investigation found that CRM denied a reasonable accommodation request to allow the man to keep his dog in the shelter, in violation of the Fair Housing Act.According to HUD’s charge, a blind, homeless individual contacted CRM in order to seek shelter. HUD’s charge alleges that a CRM employee informed the man that he could not move into the shelter with his guide dog even after the man said that he could not be without his service animal. When a caseworker from Lawrence County Community Action, an organization that assists low-income people, contacted the shelter and explained that the man needed the guide dog because of his disability, the CRM employee again refused, saying that the dog would have to go elsewhere.###
23HUD No FOR RELEASEPatricia Campbell/Scott Hudman Tuesday/ December 4, 2012HUD, HOUSTON HOUSING AUTHORITY SETTLE DISCRIMINATION COMPLAINT INVOLVING DEAF RESIDENTFORT WORTH - The U.S. Department of Housing and Urban Development (HUD) announced today that it has reached an agreement with the Houston Housing Authority. The agreement settles allegations that the housing authority initially refused a deaf resident’s requests to have a sign language interpreter present at a hearing to determine her eligibility to remain in HUD’s Housing Choice Voucher (HCV) program.The resident alleged that when the housing authority refused to provide an interpreter, she was forced to use her daughter, who is a minor and is not fluent in American Sign Language, to interpret for her. Additionally, the resident alleged that the housing authority’s refusal to provide an interpreter caused her to lose her HCV program eligibility. In her complaint, the resident alleged that she twice asked the housing authority to provide a translator for the hearing, but none was provided, and that the complex nature of her HCV eligibility hearing prevented her daughter from effectively interpreting for her. The outcome of the hearing was that the resident’s housing assistance was terminated. After the resident filed a complaint with HUD, the housing authority held a second hearing, during which an interpreter was provided. Following the second hearing, the resident’s housing assistance was reinstated.
24Under the agreement, the Houston Housing Authority paid $4,251 in rental assistance payments that were owed to the resident's landlord for the period her rental assistance was terminated. The housing authority also notified its employees of its intent to provide sign language interpreters for individuals who are Deaf or hard of hearing, agreed to inform new HCV program participants of their right to request reasonable accommodations, including interpreters, and agreed not to retaliate against the resident or her children in any way.
25HUD Region V No. 12-078A Contact: Laura J. Feldman (312) 913-8332 HUD Region V No A Contact: Laura J. Feldman (312) FOR RELEASE Tuesday, September 25, 2012HUD CHARGES MINNESOTA PROPERTY OWNER WITH DISCRIMINATING AGAINST TENANT WITH DISABILITIES Woman with disabilities denied service animalCHICAGO – The U.S. Department of Housing and Urban Development (HUD) announced today that it has charged the owner of a Grand Rapids, MN, apartment complex with violating the Fair Housing Act by denying a request from a disabled woman to reside in her apartment with a medically-prescribed support animal. The owner operates the property as Jay’s Hilltop Rentals.According to HUD’s charge, the tenant obtained a letter from a medical professional treating her explaining that she was disabled within the meaning of the Fair Housing Act and needed a support animal to alleviate symptoms associated with her disabilities. HUD’s charge further alleges that when the tenant tried to present the letter to the property owner, he refused to read it, threw the note on the floor, and yelled at the tenant to “get rid” of the animal or he would “get rid” of the tenant. The owner later offered to let the tenant keep her support animal if she tripled her security deposit.
26Joseph Phillips (678) FOR RELEASE Thursday, October 4, 2012 HUD REACHES AGREEMENT WITH ATLANTA HOUSING PROVIDERS ON CLAIM THAT MANAGER DISCRIMINATED AGAINST DISABLED TENANT ATLANTA - The U.S. Department of Housing and Urban Development announced today that it has reached a Conciliation Agreement with Brookside Park Limited Partnership and Peabody Properties South, LLC, the owner and management company for Brookside Park Apartments in Atlanta, and a former property manager, settling allegations that they violated the Fair Housing Act by refusing to allow a tenant with disabilities to transfer to a first-floor unit. "Property owners and managers have an obligation to comply with the Fair Housing Act, which includes ensuring that their policies do not discriminate against persons with disabilities," said Carlos Osegueda, HUD's Region IV Director for Fair Housing and Equal Opportunity. The settlement is the result of an investigation HUD conducted after the tenant filed a complaint alleging that the manager of the complex denied her request to move to a ground-floor unit. The resident provided the manager with documentation from her doctor verifying her disability and need to move to a ground-floor unit, but the manager denied her request, even though a ground-floor unit was available. Under the agreement, Brookside Park Limited Partnership and Peabody Properties South, LLC, will pay the resident $10,000 and inform all of their agents and employees, including officers and board members, of the terms of the agreement. In addition, prior to December 31, 2012, all management staff at Brookside Park Apartments must attend Fair Housing training conducted by HUD or another appropriate agency or facility approved by the Department.
27Making Reasonable Accommodations and Modifications
28What is a reasonable accommodation? A reasonable accommodation is a change, exception, or adjustment to a housing provider’s rule, policy, practice, or service. when such accommodations may be necessary to afford persons with disabilities equal opportunity to use and enjoy a dwelling.
29Washington, D.C. May 17, 2004 FAIR HOUSING ACT U.S. DEPARTMENT OF JUSTICE CIVIL RIGHTS DIVISIONU.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENTOFFICE OF FAIR HOUSING AND EQUAL OPPORTUNITYWashington, D.C. May 17, 2004JOINT STATEMENT OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENTAND THE DEPARTMENT OF JUSTICEREASONABLE ACCOMMODATIONS UNDER THEFAIR HOUSING ACT
30In this Statement, HUD and DOJ gave the following examples of Reasonable Accommodation: Example 1: A housing provider has a policy of providing unassigned parking spaces to residents. A resident with a mobility impairment, who is substantially limited in her ability to walk, requests an assigned accessible parking space close to the entrance to her unit as a reasonable accommodation. There are available parking spaces near the entrance to her unit that are accessible, but those spaces are available to all residents on a first come, first served basis. The provider must make an exception to its policy of not providing assigned parking spaces to accommodate this resident.
31Example 2:A housing provider has a policy of requiring tenants to come to the rental office in person to pay their rent. A tenant has a mental disability that makes her afraid to leave her unit. Because of her disability, she requests that she be permitted to have a friend mail her rent payment to the rental office as a reasonable accommodation. The provider must make an exception to its payment policy to accommodate this tenant.
32Example 3A housing provider has a "no pets" policy. A tenant who is deaf requests that the provider allow him to keep a dog in his unit as a reasonable accommodation. The tenant explains that the dog is an assistance animal that will alert him to several sounds, including knocks at the door, sounding of the smoke detector, the telephone ringing, and cars coming into the driveway. The housing provider must make an exception to its “no pets” policy to accommodate this tenant.
33So--what is a reasonable modification and how is it different from a reasonable accommodation?
34U.S. DEPARTMENT OF JUSTICE CIVIL RIGHTS DIVISION Washington, D.C. March 5, 2008JOINT STATEMENT REGARDING REASONABLE MODIFICATIONS UNDER THE FAIR HOUSING ACTU.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENTOFFICE OF FAIR HOUSING AND EQUAL OPPORTUNITY
35What is a reasonable modification under the Fair Housing Act? A reasonable modification is a structural change made to existing premises, occupied or to be occupied by a person with a disability, in order to afford such person full enjoyment of the premises.Reasonable modifications can include structural changes to interiors and exteriors of dwellings and to common and public use areas.
36What are some examples of reasonable modifications? widening doorways to make rooms more accessible for persons in wheelchairsinstalling grab bars in bathroomslowering kitchen cabinets to a height suitable for persons in wheelchairsadding a ramp to make a primary entrance accessible for persons in wheelchairsaltering a walkway to provide access to a public or common use area.
37When can a request for an accommodation or modification be made? At any time, prior or during a tenancy.
38How must a request be made? Under the Act, a resident or applicant makes a request whenever he or she makes it clear to the housing provider that he or she needs an accommodation or a modification because of his or her disability.There is no requirement that the request be made in a particular manner or a particular time.You cannot insist or require that the resident or applicant make the request in writing.The request can be made by a family member or someone else acting on the resident’s behalf.
39How must a request be made? (cont.) The person making the request does NOT have to mention the Fair Housing Act or use the words “reasonable modification” or “reasonable accommodation.”However, the requester must make the request in a manner that a reasonable person would understand to be a request for an accommodation or modification because of a disability.
40So what do you do with an oral request? BEST PRACTICE—ask the requester to permit you to fill out your request form for his or her review.Helps prevent misunderstandings as to the nature of the requestDocuments when the request was made and provides evidence of the requested accommodation or modification.
41The resident has made a request—now what do I do? GENERAL RULE: A housing provider may not ordinarily inquire as to the nature and severity of an individual’s disability.HOWEVER: in response to a request for a reasonable accommodation/modification, a housing provider may request reliable disability-related information that (1) is necessary to verify that the person meets the Act’s definition of disability (i.e., has a physical or mental impairment that substantially limits one or more major life activities), (2) describes the needed modification, and (3) shows the relationship between the person’s disability and the need for the requested accommodation/modification..
42PROVIDING DOCUMENTATION OF DISABILITY Generally, a landlord may NOT ask • “Do you have a disability?” • “How severe is your disability?” • “May I have permission to see your medical records?” • “Have you ever been hospitalized because of a mental disability?” • “Who will pay your rent if you are hospitalized?” • “Have you ever been in a drug rehabilitation program?” • “Do you take medications?” • “Why do you receive SSI?”
43Verification of Disability (cont.) The owner or manager cannot request information about the nature, extent, or severity of a person’s disability.information verifying that the person meets the Act’s definition of disability can usually be provided by the individual herself (e.g., proof that an individual under 65 years of age receives Supplemental Security Income or Social Security Disability Insurance benefits or a credible statement by the individual).Delay in responding to the request may be construed as a failure to provide a reasonable accommodation.
44Confidentiality of Information Remember that all information regarding a resident’s request for an accommodation/modification must be kept confidential and must not be shared with other persons unless they need the information to make or assess a decision to grant or deny a reasonable modification request or unless disclosure is required by law (e.g., a court-issued subpoena requiring disclosure).
45Persons with Known Disabilities If a person’s disability is obvious, or otherwise known to the housing provider, and if the need for the requested accommodation/modification is also readily apparent or known, then the provider may not request any additional information about the requester’s disability or the disability-related need for the accommodation/ modification.If the requester’s disability is known or readily apparent to the provider, but the need for the modification is not readily apparent or known, the provider may request only information that is necessary to evaluate the disability-related need for the modification.
46ExamplesExample 1: An applicant with an obvious mobility impairment who uses a motorized scooter to move around asks the housing provider to permit her to install a ramp at the entrance of the apartment building. Since the physical disability (i.e., difficulty walking) and the disability-related need for the requested modification are both readily apparent, the provider may not require the applicant to provide any additional information about her disability or the need for the requested modification.
47Examples (cont.)Example 2: A deaf tenant asks his housing provider to allow him to install extra electrical lines and a cable line so the tenant can use computer equipment that helps him communicate with others. If the tenant’s disability is known, the housing provider may not require him to document his disability; however, since the need for the electrical and cable lines may not be apparent, the housing provider may request information that is necessary to support the disability-related need for the requested modification.
48What can you ask?You may ask for verification of the disability, but cannot require that the verification be from a medical doctor.You can request that the professional verifying the disability state that the accommodation requested relates to the disability.You cannot ask for medical records or the identification of the disability.
49What burden is on the resident or applicant ? The resident must have a verifiable disability.There must be an identifiable relationship, or nexus, between the requested accommodation or modification and the individual’s disability. Further, the modification must be “reasonable.”
50Examples of “nexus” between requested accommodation/modification and disability A tenant, whose arthritis impairs the use of her hands and causes her substantial difficulty in using the doorknobs in her apartment, wishes to replace the doorknobs with levers. Since there is a relationship between the tenant’s disability and the requested modification and the modification is reasonable, the housing provider must allow her to make the modification at the tenant’s expense.
51Examples of “nexus” between requested accommodation/modification and disability Example 2: A resident with a mobility disability asks the owner to permit him to change his roofing from shaker shingles to clay tiles and fiberglass shingles because he alleges that the shingles are less fireproof and put him at greater risk during a fire.There is no evidence that the shingles permitted by the homeowner’s association provide inadequate fire protection and the person with the disability has not identified a nexus between his disability and the need for clay tiles and fiberglass shingles, so the request may be denied.
52Examples of “nexus” between requested accommodation/modification and disability A resident who has diabetes asks for an accommodation that her security deposit be waived.The request can be denied, because there is no nexus between having diabetes and not paying a security deposit.
53Who is responsible for expense of making a reasonable modification? The Fair Housing Act provides that while the housing provider must permit the modification, the tenant is responsible for paying the cost of the modification.HOWEVER, Housing providers that receive federal financial assistance are also subject to the requirements of Section 504 of the Rehabilitation Act of l973, which obligates housing providers to make and pay for structural changes to facilities, if needed as a reasonable accommodation for applicants and tenants with disabilities, unless doing so poses an undue financial and administrative burden.
54Who is responsible for the expense of a reasonable accommodation? Generally, under the Fair Housing Act, the housing provider is responsible for the costs associated with a reasonable accommodation unless it is an undue financial and administrative burden.
56Is this an instance where a reasonable accommodation should be made? MENTAL DISABILITYTenant suffering from a mental disability receives eviction notice for disturbing other residents and violating community rules. The disabled tenant requests a reasonable accommodation due to her disability by not proceeding with the proposed eviction action and allowing her time to get medical treatment and/or psychological counseling.Is this an instance where areasonable accommodation should be made?
57REASONABLE ACCOMMODATIONS MENTAL DISABILITYYes.The manager must grant the accommodation unless he/she can demonstrate that no reasonable accommodation will eliminate or acceptably minimize any risk the tenant poses to other residents.
58REASONABLE ACCOMMODATIONS LIVE-IN CARE GIVERA tenant needs a live-in aide to help care for him. Thus, the tenant requests that management of the apartment complex reasonably accommodate him by allowing his live-in aid to move in to assist him with his daily activities.Accommodation: If the tenant is disabled and needs the live-in aide to have an equal opportunity to use and enjoy his unit, then management must grant the accommodation.June 2011Fair Housing and Equal Opportunity
59REASONABLE ACCOMMODATIONS NO PETS POLICYApplicant: Blind applicant with seeing eye dog qualifies for one bedroom.Accommodation: The owner or manager of the apartment complex would have to waive the “no pets” policy for a disabled applicant that has a service animal or support animal.Service animal means any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items. A support animal means any animal that provides a therapeutic or psychological aid to a person, due to their disability.
60REASONABLE MODIFICATIONS An applicant for rental housing has a child who uses a wheelchair. The bathroom door in the dwelling unit is too narrow to permit the wheelchair to pass. The applicant asks the landlord for permission to widen the doorway at the applicant's own expense. It is unlawful for the landlord to refuse to permit the applicant to make the modification.The landlord may not, in usual circumstances, condition permission for the modification on the applicant paying for the doorway to be narrowed at the end of the lease because a wider doorway will not interfere with the landlord's or the next tenant's use and enjoyment of the premises
61Cannot insist that a particular contractor perform the work What types of documents and assurances may a housing provider require regarding the modification before granting the reasonable modification?Cannot require that a tenant obtain insurance or increase the tenant’s security depositCannot insist that a particular contractor perform the workCan require that the contractor selected show that it is able to complete the work in a workmanlike manner and obtain all necessary permitsIn limited circumstances, may be able to require that tenant escrow funds in an interest bearing account to ensure that funds are available to restore premises to previous state
62When can you require escrow? Simply because an individual has a disability does not mean that she is less creditworthy than an individual without a disability. The decision to require that money be placed in an escrow account should be based on the following factors: 1) the extent and nature of the proposed modifications; 2) the expected duration of the lease; 3) the credit and tenancy history of the individual tenant; and 4) other information that may bear on the risk to the housing provider that the premises will not be restored.
63Obligation to Restore Premises to Original State The tenant is obligated to restore those portions of the interior of the dwelling to their previous condition only where “it is reasonable to do so” and where the housing provider has requested the restoration.If the modifications do not affect the housing provider’s or subsequent tenant’s use or enjoyment of the premises, the tenant cannot be required to restore the modifications to their prior state. A housing provider may choose to keep the modifications in place at the end of the tenancy.
64Examples:Example 1: Because the tenant uses a wheelchair, she obtained permission from her housing provider to remove the base cabinets and lower the kitchen sink to provide for greater accessibility. It is reasonable for the housing provider to ask the tenant to replace the cabinets and raise the sink back to its original height.
65Examples cont.Example 2: Because of a mobility disability, a tenant obtained approval from the housing provider to install grab bars in the bathroom. As part of the installation, the contractor had to construct reinforcements on the underside of the wall. These reinforcements are not visible and do not detract from the use of the apartment. It is reasonable for the housing provider to require the tenant to remove the grab bars, but it is not reasonable for the housing provider to require the tenant to remove the reinforcements.
66Examples cont.Example 3: Because of a mobility disability, a tenant obtained approval from the housing provider to widen doorways to allow him to maneuver in his wheelchair. In usual circumstances, it is not reasonable for the housing provider to require him to restore the doorways to their prior width.
67When can you refuse an accommodation/modification? When it is not related to the person’s disabilityWhen it would fundamentally alter the nature of the provider’s operationsWhen it would impose an undue financial and administrative burdenAn apartment does not have to be made available to a person who is a direct threat to the health or safety of others or who uses illegal drugs.If a person’s threat can be successfully eliminated or significantly reduced by a reasonable accommodation, then they can be protected under the Act.
68Assistance or Support Animals HOT TOPIC!Service Animalsvs.Assistance or Support Animals
69What’s the difference?Service animal-typically a dog specially trained to assist a person with a disabilityExamples: Seeing eye dogsdogs that retrieve items for wheelchair bound individuals
70Service vs. Support Animal Past 5-7 years, increasing requests for assistance or support animalsnot necessarily dogsnot specially trained to assist disabled persons
71One definition of support animal: “An animal that, by its very presence, mitigates the emotional or psychological symptoms associated with its handler’s condition or disorder.” From National Service Animal Registry,
72Examples of Support Animals: Cat which helps resident deal with anxietyIguana which helps resident deal with personality disorder
73Found on NSARCO site:If you have an emotional support animal, but need a letter of prescription from a licensed psychologist, click here to get one.
74Significant change in 2011In 2011, the Department of Justice published final regulations under the Americans with Disability Act which stated:Only dogs are recognized as service animals under Titles II and III of the ADABUT—new regulations on miniature horsesA service animal is a dog that is individually trained to do work or perform tasks for a person with a disability.
75Examples of Service Animals under the ADA seeing eye dog for the blinddog that alerts a deaf persondog that alerts and protects a person who is having a seizurecalming a person with PTSD during an attack
76DOJ added the following important note: “Dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA.”
77HUD’s ResponseHUD issued an official notice on April 25, 2013 which states:DOJ’s limitation of “service animals” to include only dogs who are specially trained and to exclude emotional support animals has no effect on Fair Housing obligations of housing providersPersons with disabilities may request a reasonable accommodation for any assistance animal, including an emotional support animal, under the FHA and Section 504.
78HUD’s Response, cont. Two pronged test: (1) is the person seeking the assistance animal disabled?(2) Does this person have a disability-related need for an assistance animal?If answer to either question is no, then the request for an accommodation may be denied
79HUD’s Response, cont.If answer to either question is yes, then accommodation must be granted, unless:(1) the specific assistance animal poses a direct threat to health or safety of others that can’t be reduced or eliminated by another reasonable accommodation;(2) the specific assistance animal would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.
80HUD Response, cont.Breed, size and weight limitations may not be applied to an assistance animal.A determination that an assistance animal poses a direct threat of harm to others or substantial physical damage to the property must be based on individualized assessment that relies on objective evidence about the specific animal’s actual conduct, and not on mere speculation or evidence of harm that other animals have caused.
81WAIT! Is there a limit to the number of service/support animals one resident can have? Service/support animals may provide different assistance (a seeing eye dog, a dog that alerts a resident to seizures)Must go through same analysis and any request for an accommodationVerifiable disabilityRequest is reasonably related to the disabilityDoesn’t create undue burden or hardship on housing provider
82What you can do to ensure compliance with your company’s accommodation/modification policy Read the policy and keep it handy for easy reference.Be a good listener when residents and applicants are talking to you—they may be requesting an accommodation or modification.Reduce oral requests to writing. If disability is not apparent or it is unclear if request is related to disability, ask for verification of the disability and the need for the accommodation/modification from a medical professional.Send any requests promptly to your Coordinator. Keep a list of requests and follow up as necessary.
83What you can do to ensure compliance with your company’s policy Keep all requests and medical information confidential.Don’t assume that every accommodation or modification will be at the owner’s expense.Avoid making promises to residents about if, when and how the accommodation/modification will be made. Refer to the time guidelines in the Policy.
85Juvenile Delinquents, Sex Offenders, Drug Users and the Mentally Ill juvenile offenders and sex offenders, by virtue of that status, are not persons with disabilities protected by the Actpersons who are currently engaging in the current illegal use of controlled substances are not persons with disabilities protected by the Actan individual with a disability whose tenancy would constitute a "direct threat" to the health or safety of other individuals or result in substantial physical damage to the property of others unless the threat can be eliminated or significantly reduced by reasonable accommodation
86How can you determine if someone with a mental illness is a “direct threat?” You cannot exclude an individual from housing based on fear, speculation, or stereotypeA determination that an individual poses a direct threat must rely on an individualized assessment that is based on reliable objective evidence (e.g., current conduct, or a recent history of overt acts).The assessment must consider: (1) the nature, duration, and severity of the risk of injury; (2) the probability that injury will actually occur; and (3) whether there are any reasonable accommodations that will eliminate the direct threat.
87“Direct Threat” (cont.) In evaluating a recent history of overt acts, a provider must take into account whether the individual has received intervening treatment or medication that has eliminated the direct threat (i.e., a significant risk of substantial harm)May request that the individual document how the circumstances have changed so that he no longer poses a direct threatMust have reliable, objective evidence that a person with a disability poses a direct threat before excluding him from housing on that basis
88Case Study— “Direct Threat” Applicant had been institutionalized since late childhood; no surviving family membersMental institution was closing, State-appointed guardian applied applicant for residencyNo credit history, no prior rental history; guardian of applicant asked for accommodation to waive company’s credit and rental history policyWhat do you do?
89Case Study – Wheelchair Bound Applicant Requests 6th floor apartment in highrise apartment.What do you do?
90Do Health and Safety Concerns for Resident requesting Accommodation and other Residents trump Fair Housing Act?
91What if a more reasonable accommodation or modification would work? Resident requests handicapped toilet. Provide raised seat instead of entirely new toilet. Resident requests roll-in bathtub for wheelchair. Provide roll-in shower instead.
93HUD's Title VIII Fair Housing Complaint Process STEP 1 - INTAKESTEP 2 – FILINGSTEP 3 - INVESTIGATIONSTEP 4 - CONCILIATIONSTEP 5 – NO CAUSE DETERMINATIONSTEP 6 – CAUSE DETERMINATION AND CHARGESTEP 7 – HEARING IN A U.S. DISTRICT COURTSTEP 8 – HEARING BEFORE A HUD ADMINISTRATIVE LAW JUDGE (ALJ)June 2011Fair Housing and Equal Opportunity
94HUD's Title VIII Fair Housing Complaint Process STEP 1 - INTAKEAnyone can file a complaint with HUD at no cost.Initial interviews may be conducted by telephone.If HUD has the authority to investigate, it will file the complaint.If HUD has no authority to investigate, HUD cannot accept the complaint and the case must be closed.If the alleged discrimination occurs within a state or locality in HUD’s Fair Housing Assistance Program, HUD will refer the complaint to that agency.
95HUD's Title VIII Fair Housing Complaint Process STEP 2 - FILINGOnce the complaint is accepted, a HUD investigator will draft a formal complaint for signing by the complainant.Within 10 days after receipt of the signed complaint, HUD will send notification of the filing of a complaint to the respondent.Respondent must submit an answer to the complaint to HUD within 10 days of receiving the notice.
96HUD's Title VIII Fair Housing Complaint Process STEP 3 - INVESTIGATIONHUD will interview the complainant, the respondent, and pertinent witnesses.The HUD investigator may collect relevant documents or conduct onsite visits.The HUD investigator may take depositions, issue subpoenas and interrogatories, and compel testimony or documents.
97HUD's Title VIII Fair Housing Complaint Process STEP 4 - CONCILIATIONThe Fair Housing Act requires HUD to bring the parties together to attempt conciliation in every fair housing complaint.The choice to conciliate the complaint is completely voluntary on the part of both parties.If the parties sign a conciliation agreement, HUD will end its investigation and close the case.If the agreement is breached HUD can recommend that the U.S. Department of Justice (DOJ) file suit to enforce the agreement.
98HUD's Title VIII Fair Housing Complaint Process STEP 5 – NO CAUSE DETERMINATIONIf after a thorough investigation HUD believes no discrimination occurred, HUD will issue a determination of "no reasonable cause" and close the case.Upon receipt of a request for reconsideration by the Complainant, HUD will invite all parties to submit additional evidence pertinent to the investigation for review.HUD can decide to affirm the previous decision, re-open the case.If the complainant disagrees with HUD's determination, a civil court action can be filed in the appropriate U.S. district court.
99HUD's Title VIII Fair Housing Complaint Process STEP 6 –CAUSE DETERMINATION and CHARGEIf the investigation produces reasonable cause to believe that discrimination has occurred or is about to occur, HUD will issue a determination of "reasonable cause" and charge the respondent with violating the law. HUD will send a copy of the charge to the parties in the case.After HUD issues a charge, an ALJ will hear the case unless either party elects to have the case heard in federal civil court.June 2011Fair Housing and Equal Opportunity
100HUD's Title VIII Fair Housing Complaint Process STEP 7 – HEARING IN A U.S. DISTRICT COURTWithin 30 days after either party elects to go to federal court, DOJ will commence a civil action on behalf of the aggrieved person in U.S. district court.If the court finds that a discriminatory housing practice has or is about to occur, the court can award actual and punitive damages as well as attorneys fees.June 2011Fair Housing and Equal Opportunity
101Contact Information:Lisa W. Wannamaker, Esq.Partner, Coleman Talley LLP7000 Central Parkway NE, Suite 1150Atlanta, GA 30328Ph. (678)Fax (770)Lisa Wannamaker is a partner in the Atlanta office of Coleman Talley LLP. Prior to joining Coleman Talley, Lisa was Vice President and General Counsel for Jacada Ltd., a software company traded on the NASDAQ, and the head of the technology law team at Long Aldridge & Norman (now McKenna Long & Aldridge) in Atlanta, Georgia. She began her legal career in 1985 at Hicks, Maloof & Campbell, also in Atlanta.Lisa serves as outside general counsel for residential property management companies, advising them on corporate and employment law issues, as well as landlord tenant and fair housing matters. She also provides training and seminars to clients on employment, landlord tenant, and fair housing topics and has served as a panelist and speaker at industry meetings. In her employment law practice, Lisa regularly counsels clients regarding employment contracts, confidentiality agreements, restrictive covenants, independent contractor agreements, employee handbooks and other contractual matters. In addition, she assists clients in defending charges of discrimination under Title VII of the Civil Rights Act, the Equal Pay Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. Her practice also includes preventative counseling on diverse areas of employment law, such as compliance with the Fair Labor Standards Act and Equal Employment Opportunity.Lisa received her Bachelor's Degree in English from Emory University in 1982 and Juris Doctor (JD) degree from Emory University in 1985.