Reasonable Accommodations. What They Are; Recent Cases

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1 Reasonable Accommodations What They Are; Recent Cases

2 WHO AM I? Tony Baize Former Executive Director of the Kentucky Fair Housing Council Former Board Member of the National Fair Housing Alliance Current Board Member of the Lexington Fair Housing Council Trainer with more than 100 fair housing trainings for government agencies, real estate groups, elected officials and civil rights advocates

3 WHAT IS A "REASONABLE ACCOMMODATION?" A reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces. Since rules, policies, practices, and services may have a different effect on persons with disabilities than on other persons, treating persons with disabilities exactly the same as others will sometimes deny them an equal opportunity to use and enjoy a dwelling. The Act makes it unlawful to refuse to make reasonable accommodations to rules, policies, practices, or services when such accommodations may be necessary to afford persons with disabilities an equal opportunity to use and enjoy a dwelling. To show that a requested accommodation may be necessary, there must be an identifiable relationship, or nexus, between the requested accommodation and the individual s disability.

4 WHAT IS A NEXUS?" Examples: A person s visual impairment necessitates her need for a guide dog A person s mobility impairment necessitates his need for a parking space closer to his front door A child s diagnosis of autism necessitates her need for specialized outdoor climbing/therapy equipment or fence A person s mental disability necessitates his need for a therapeutic companion animal A person s visual impairment necessitates her need to receive notices from apartment management orally or in Braille A person s receipt of disability benefits on the 5 th of the month necessitates his need to pay rent on the 5 th rather than the 1 st A person in a third-floor apartment with no elevator who becomes paralyzed during her tenancy has a need to transfer to a first-floor unit

5 SO, WHAT S A REASONABLE MODIFICATION? Under the Fair Housing Act, a reasonable modification is a structural change made to the premises whereas a reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service. A person with a disability may need either a reasonable accommodation or a reasonable modification, or both, in order to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces. 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, while the tenant or someone acting on the tenant s behalf, is responsible for costs associated with a reasonable modification.

6 THERE S ALSO The Americans with Disabilities Act ( ADA ), enacted in 1990, which prohibits discrimination on the basis of disability in government-funded programs, including housing programs (Title II), as well as public accommodations (Title III) which means that rental offices, homeless shelters, and other on-site business locations used by the public must be accessible to persons with disabilities. Section 504 of the Rehabilitation Act of 1973 ( Section 504 ), which prohibits discrimination in federally funded housing programs.

7 WHO CHAMPIONED THIS IDEA AT THE FEDERAL LEVEL? Next week we'll be taking a new initiative to keep a pledge I made in my State of the Union address the pledge to strengthen enforcement of fair housing laws for all Americans. We believe in the bold promise that no person in the United States should be denied full freedom of choice in the selection of housing because of race, color, religion, sex, or national origin. We're proposing a series of amendments that will put real teeth into the Fair Housing Act. We're proposing to extend the current law to prohibit discrimination on the basis of handicap or size of family. We believe this is an important step for civil rights. For a family deprived of its freedom of choice in choosing a home, our proposal will mean swift action and strong civil penalties to prevent discrimination in the first place. AsIsaid,we'recommittedtofairnessandwe'recommittedtousethefull power of the Federal Government whenever and wherever even one person's constitutional rights are being unjustly denied.

WHO SAID THAT? http://www.presidency.ucsb.edu/ws/?pid=41563 California added disability protections to its Fair Employment and Housing Act in 1974, when Reagan was governor.

8 WHO SAID THAT? California added disability protections to its Fair Employment and Housing Act in 1974, when Reagan was governor. It would take Reagan and Congress until 1988 to pass the amendments to the Fair Housing Act. The amendments were endorsed by the National Association of Home Builders and the National Association of Realtors.

9 WHAT S THE PROCESS? The North Carolina Housing Finance Agency. Fair Housing for Tenants with Disabilities: Understanding Reasonable Accommodations and Reasonable Modifications

10 WHAT S THE PROCESS? Please keep in mind that the reasonable accommodation process should be an interactive process. If a landlord or manager finds a request unreasonable, s/he and the tenant should work to find a compromise solution. The provider need not honor the accommodation if an alternative, less obtrusive accommodation is available. Loren v. Sasser, 309 F.3d 1296, 1303 (11th Cir. 2002); HUD v. Riverbay Corporation (HUDALJ 11-F-052-FH ). That being said, a landlord or manager should be extremely cautious and should consider consulting with legal counsel before denying a particular request.

11 WHO CAN REQUEST A REASONABLE ACCOMMODATION? Persons who: Have a physical or mental impairment substantially limiting one or more major life activities, including caring for one s self, walking, seeing, hearing, speaking, breathing, working, performing manual tasks, and learning; Have a history of a physical or mental impairment substantially limiting one or more major life activities; or Are regarded as having a physical or mental impairment substantially limiting one or more major life activities.

12 WHO CANNOT REQUEST A REASONABLE ACCOMMODATION? Persons who: Are currently engaging in the illegal use of a controlled substance; Constitute a direct threat to the health or safety of other individuals or whose tenancy would cause substantial physical damage to the property of others; Have been convicted of illegal manufacture or distribution of a controlled substance; or Are juvenile offenders or sex offenders, by virtue of that status.

13 WHEN CAN A REASONABLE ACCOMMODATION REQUEST BE DENIED? Landlords are not required to provide an accommodation if it would impose an undue burden or result in a fundamental alteration of the nature of the housing program. An undue burden is an unreasonable financial or administrative cost, which is demonstrated by comparing the administrative and financial costs of regular operation, the overall financial resources available to the landlord, and the costs of making the accommodation. A fundamental alteration is an accommodation that would change the basic operation or nature of services provided by significantly modifying, eliminating, or adding to the services that a landlord provides The North Carolina Housing Finance Agency. Fair Housing for Tenants with Disabilities: Understanding Reasonable Accommodations and Reasonable Modifications

14 WHAT S AN UNDUE BURDEN? An undue burden is an unreasonable financial or administrative cost, which is demonstrated by comparing the administrative and financial costs of regular operation, the overall financial resources available to the landlord, and the costs of making the accommodation. Determining whether an accommodation is reasonable is fact-specific and requires a case-by-case analysis. Groner v. Golden Gate Gardens Apartments, 250 F.3d 1039, 1044 (6 th Cir. 2001)

15 WHAT S AN UNDUE BURDEN? Examples: 1. In Rodriguez v. 551 West 157th St. Owners Corp., a federal judge ruled that one of the reasons a landlord was correct to reject a tenant s accommodation request was that the cost would be between $25,000 and $75,000 and the building was operating at a loss for more than three years. (United States District Court, S.D. New York ) 2. As a result of a disability, a tenant is physically unable to open the dumpster placed in the parking lot by his housing provider for trash collection. The tenant requests that the housing provider send a maintenance staff person to his apartment on a daily basis to collect his trash and take it to the dumpster. Because the housing development is a small operation with limited financial resources and the maintenance staff are on site only twice per week, it may be an undue financial and administrative burden for the housing provider to grant the requested daily trash pick-up service. (Joint Statement Of The Department Of Housing And Urban Development And The Department Of Justice Reasonable Accommodations Under The Fair Housing Act )

16 WHAT S A FUNDAMENTAL ALTERATION? A fundamental alteration is an accommodation that would change the basic operation or nature of services provided by significantly modifying, eliminating, or adding to the services that a landlord provides. A tenant has a severe mobility impairment that substantially limits his ability to walk. He asks his housing provider to transport him to the grocery store and assist him with his grocery shopping as a reasonable accommodation to his disability. The provider does not provide any transportation or shopping services for its tenants, so granting this request would require a fundamental alteration in the nature of the provider's operations. (Joint Statement Of The Department Of Housing And Urban Development And The Department Of Justice Reasonable Accommodations Under The Fair Housing Act )

17 DOES A REASONABLE ACCOMMODATION REQUEST NEED TO BE COST-FREE? No. Courts have acknowledged that housing providers may incur some costs when granting reasonable accommodations. For example, courts have treated requests for parking spaces as requests for a reasonable accommodation and have placed the responsibility for providing the parking space on the housing provider, even if provision of an accessible or assigned parking space results in some cost to the provider. Courts have required a housing provider to provide an assigned space even though the housing provider had a policy of not assigning parking spaces or had a waiting list for available parking. However, housing providers may not require persons with disabilities to pay extra fees as a condition of receiving accessible parking spaces. Providing a parking accommodation could include creating signage, repainting markings, redistributing spaces, or creating curb cuts. (Joint Statement Of The Department Of Housing And Urban Development And The Department Of Justice: Reasonable Modifications Under The Fair Housing Act )

18 CAN A LANDLORD CHARGE ANY EXTRA FEES FOR AN ACCOMMODATION? No. Housing providers may not require persons with disabilities to pay extra fees or deposits as a condition of receiving a reasonable accommodation.

19 CAN A LANDLORD CHARGE ANY EXTRA FEES FOR AN ACCOMMODATION? Example 1: A man who is substantially limited in his ability to walk uses a motorized scooter for mobility purposes. He applies to live in an assisted living facility that has a policy prohibiting the use of motorized vehicles in buildings and elsewhere on the premises. It would be a reasonable accommodation for the facility to make an exception to this policy to permit the man to use his motorized scooter on the premises for mobility purposes. Since allowing the man to use his scooter in the buildings and elsewhere on the premises is a reasonable accommodation, the facility may not condition his use of the scooter on payment of a fee or deposit or on a requirement that he obtain liability insurance relating to the use of the scooter. Example 2: Because of his disability, an applicant with a hearing impairment needs to keep an assistance animal in his unit as a reasonable accommodation. The housing provider may not require the applicant to pay a fee or a security deposit as a condition of allowing the applicant to keep the assistance animal. (Joint Statement Of The Department Of Housing And Urban Development And The Department Of Justice Reasonable Accommodations Under The Fair Housing Act )

20 ANY QUESTIONS BEFORE WE MOVE ON?

21 AVOID CONFUSION The Fair Housing Act is not the ADA. All service animal laws and policies are not created equal. Your home is not the same as your job or a post office. And, businesses (like airlines and hotels) can choose to go beyond what the law states.

22 RECENT CASES March 2013: Massachusetts settlement over broken elevators Massachusetts v. Federal Square Condominium Trust Suffolk Superior Court (state court)

23 RECENT CASES March 2013: New Mexico landlord agrees to pay $200,000 to settle reasonable modification and retaliation case Source: U.S. Department of Justice Press Release

24 RECENT CASES March 2013: Maryland ruling over key access instead of a basement elevator entrance. $40,000 to settle Board Of Directors Of Cameron Grove Condominium, Ii, Et Al. V. State Of Maryland Commission On Human Relations Court Of Appeals Of Maryland No. 47 Decided: March 28, 2013

25 RECENT CASES June 2013: Minnesota company agrees to pay $740 for denying woman s service animal. $740!!!!

26 August 2013: Missouri city agrees to pay $80,000 for enacting a 2,500-foot spacing requirement for group care homes for persons with disabilities RECENT CASES

27 September 2013: HUD charges Minn. Landlord with discrimination over service dog. RECENT CASES

28 October 2013: Mass. Real estate company to pay $3,700 for failing to engage in interactive process and enforce it s nosmoking policy. RECENT CASES

29 October 2013: Nevada defendants agree to pay $40,000 for segregating persons with assistance animals into certain buildings, denying requests for emotional support animals, and requiring excessive documentation for service animals. RECENT CASES

30 December 2013: Iraq War vet sues Texas real estate company over denial of a service dog that looks like a German Shepherd. RECENT CASES

31 December 2013: Federal judge in Pennsylvania denies motion to dismiss in a service animal case involving a homeless shelter. Judge rejects undue burden arguments from shelter. RECENT CASES

32 RECENT CASES February 2014: University settles with disabled student over service animal Leland v. Portland State University U.S. District Court. (D. Ore.) Case # 3:12-cv SI Filed: April 20, 2012

33 RECENT CASES March 2014: Diabetes service dog settlement in Oregon Oregon Bureau of Labor and Industries v. Housing Authority of Douglas County et al Oregon District Court (state court) Case # 6:13-cv Filed: Jul 18, 2013

ANY QUESTIONS BEFORE WE LEAVE? tonybaize@gmail.

34 ANY QUESTIONS BEFORE WE LEAVE? Flipboard: Civil Rights in America

35 THANK YOU!

Housing Law Group November 19, Reasonable Accommodations for Tenants with Disabilities

Housing Law Group November 19, 2013 Reasonable Accommodations for Tenants with Disabilities FAIR HOUSING LAWS Fair Housing Act 42 U.S.C. 3601 et seq. Section 504 of the Rehabilitation Act of 1973 29 U.S.C.