Investigating and Pleading Reasonable Modification 42 U.S.C. § 3604 (f)(3)(A) & Reasonable Accomodation 42 U.S.C. § 3604 (f)(3)(B) Cases as Violations of 42 U.S.C. §3604 (f)(1) of the Fair Housing Amendments Act
Prima Facie Elements. Disabled within the meaning of the Act. Housing provider knew or should have known of the disability. See, Jankowski Lee & Assoc. v. Cisneros, 91 F.3d 891, 19 A.D.D. 619 (7 th Cir. 1996). Requested a reasonable accommodation or modification. Accommodation or modification was reasonable and necessary to offer disabled person equal opportunity to use and enjoy the dwelling. Dadian v. Village of Wilmette, 269 F.3d 831, 12 A.D. Cas. (BNA) 609 (7 th Cir. 2001). Accommodation or Modification denied or so delayed as to equate to denial.
Direct Discrimination Where the policy, rule or declaration is discriminatory on its face against individuals with disabilities, do NOT need to engage in a prima facie analysis or request reasonable accommodation of that policy. See, U.S. v. Rathbone Retirement Comm., et al., 3:08-cv-00174 (N.D. Ind. 2009).
Independent Theory of Discrimination Disparate Impact. Wisconsin Comm. Servs. v. City of Milwaukee, 413 F.3d 642, vacated, rehearing en banc granted, reversed and remanded, 465 F.3d 737 (7 th Cir. 2006). The facially neutral policy of prohibiting medical clinics applied to group home for mental health/drug abuse. Appellate court held that Plaintiff had to show disparate impact vs. disabled, NOT plead a reasonable accommodation. REVERSED, EN BANC –remanded based on intentional discrimination and disparate impact.
CRITICAL ELEMENTS OF THE CLAIM: Interactive Process See, Jankowski Lee & Assoc. v. Cisneros, 91 F.3d 891, 19 A.D.D. 619 (7 th Cir. 1996).* (some circuits) Necessity and Burden Shifting Bronk v. Ineichen- 54 F.3d 425 (7 th Cir. 1995) necessity-must ameliorate in some way the effects of the disability.
ANOTHER CRITICAL ELEMENT: Reasonableness burden of proof that there is a nexus between the requested accommodation and the disability. See argument in, Giovani v. Housing Authority of Lake County (N.D. IL 2009), and Giebeler v. M & B Assocs., 343 F.3d 1143 (9 th Cir. 2003). Contrast to economic accommodations rejected in Salute v. Stratford Greens Garden Apts., 136 F.3d 293 (2 nd Cir. 1998), Hemisphere v. Village of Richton Park, 171 F.3d 437, 440 (7 th Cir. 1999).
EVIDENCE In Accommodation & Modification Cases Gathering it Using it Protecting it
Evidence of Disability Inquiry is permitted to the extent that it is needed to evaluate the reasonable accommodation or modification request Balance the need to evaluate reasonable accommodation requests of tenants who refuse to disclose the nature of their disabilities with legitimate privacy issues.
At the Investigation Stage: Get as much information as possible. Go beyond the reasonable cause standard.
RELEASES Get a release of information for medical records or to interview medical professionals. Get several releases. There may be multiple professionals. Limit the release based on level of access required to investigate the case or as permitted by the complainant. Protect your release. No reason to release to Respondents. Place in deliberative section of the file so that it may be protected from FOIA or limited for use in later litigation. Releases need expiration dates.
EXPERTS If you need one, get one. Maybe you just need a treating professional. Be prepared to pay your medical professional for his/her time. Protect the information from your treating professional or expert. Remember to get damages evidence from your witness.
DAMAGES You must establish damages during the investigation, before witnesses and documents disappear and emotions fade.
Litigation Use protective orders. Don’t release medical information or interviews of treating professionals without protective orders. Only produce medical records that are relevant to the claim. Redact the rest and note in the privilege log. Don’t attempt to use reticent doctors; get the records and an expert. Use a range of treating professionals. Doctor’s orders or testimony should be descriptive. If addressing direct threat with medical evidence use expert to establish (1) nature of the risk; (2) duration of the risk; (3) severity of the risk. School Board of Nassau County v. Arline, 480 U.S. 273, 107 S. Ct. 1123 (1987).
Defenses Undue fiscal & administrative burden. Fundamental Alteration of the Program. Health & Safety-Direct threat- Housing provider is not required to permit accommodations or modifications that would present a direct threat to the health and safety of others.
DIRECT THREAT A dwelling need not be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others. 42 U.S.C. 3604(f)(9) Can’t be based on stereotypes, fears or prejudices. Must relate to the particular abilities of the disabled individual. Must be established by objective evidence. Fair Housing; Implementation of the Fair Housing Amendments Act of 1988, 53 Fed. Reg. 44992, 45002 (1988) Defense is only available where the threat cannot be ameliorated by a reasonable accommodation. Sometimes there’s an affirmative obligation to accommodate. Some cases have held that a housing provider must attempt to accommodate a direct threat before evicting. Groner v. Golden Gate Gardens Apts., 250 F.3d 1039, 2001 FED App. 0174P (6 th Cir. 2001); Roe v. Sugar River Mills Assoc. 820 F. Supp. 636 (D.N.H., 1993), Roe v. Housing Authority of the City of Boulder, 909 F. Supp. 814 (D. Colo., 1995).
Alphabet Soup Cautionary Notes. Upcoming Reasonable Accommodation Reasonable Modification problems based on new housing types.
The plan for transformation has resulted in a number of different housing types that didn’t exist previously. Many people with disabilities were vouchered out of their housing and now live in the community, rather than in traditional public housing units. that can be accessed by people with disablities who lose this benefit upon moving. Affirmatively Furthering Fair Housing. Many communities are seeking to reduce or eliminate the number of traditional public housing units and project based units in their communities, primarily using funds for vouchers. Tax Credits. Many communities are leveraging their financing through state programs and tax credits. Tax credits are not considered federal financial assistance for purposes of triggering Section 504 of the Rehab Act. New HUD initiative to bring HUD funding under one process