Year: 2015

Following the U.S. Supreme Court’s recent decision in Texas Department of Housing and Community Affairs v. Inclusive Community Projects, Inc. , it’s pretty clear that disparate impact claims are valid under the Fair Housing Act.  But the question remains:  how exactly does a disparate impact claim work?  And is it as draconian for landlords and property management companies as it seems?  The short answer is that while the threat of a disparate impact claim may give management a bit of heartburn, there are safeguards in place to protect legitimate, nondiscriminatory policies and practices.

As I’ve written about before (The U.S. Supreme Court Upholds “Disparate Impact” Claims Under The Fair Housing Act), a disparate impact claim allows a plaintiff to attack a housing policy that may seem nondiscriminatory on its face, but which has a disparate impact on certain protected classes.  As upheld by the Supreme Court in Texas Department of Housing and Community Affairs, and as originally promulgated by the U.S. Department of Housing and Urban Development, a disparate impact claim encompasses a burden shifting framework.  So what does that mean in plain English?  Well, under the Supreme Court’s guidance, a disparate impact claim works as follows.  First, the plaintiff must make a threshold showing of disparate impact, meaning that the plaintiff must show that a challenged practice or policy has caused, or will cause, a discriminatory effect.  Importantly, pursuant to the Supreme Court’s guidance, there must be a causal relationship between the defendant’s practice or policy and the discriminatory effect—if there is not, then the plaintiff cannot make its required initial showing, and the case is dismissed.  If the plaintiff does make this initial showing, then the burden shifts to the defendant to show that the practice or policy is necessary to achieve one or more substantial, legitimate, non-discriminatory interests.  Presuming that the defendant makes this showing, then the burden shifts back to the plaintiff to prove that the interests offered by the defendant in support of the practice or policy could be achieved by another practice or policy with a less discriminatory effect.

While the above framework may seem complex, the key takeaway is that management is still able to articulate and rely on a valid interest served by the challenged practice or policy as a defense to a disparate impact claim.  Moreover, the causal requirement set out by the Supreme Court—which the Court itself described as needing to be “robust”—is designed to ensure that defendants will not be held liable for disparities that they did not create.  In fact, the Supreme Court has specifically cautioned that courts should examine with care whether a plaintiff has met the threshold requirements to make a disparate impact claim, and that courts should promptly dismiss those cases where the plaintiff’s initial showing is insufficient.

While the above safeguards should provide management with a little peace of mind, it is still instrumental for management to analyze all practices and policies to determine if they might have a discriminatory impact on any protected classes and, if so, to consider whether there are any less discriminatory means that might equally achieve the intended goals of the practice or procedures.

As I have discussed in a previous post (The Differences Between Accommodations and Modifications Under the Fair Housing Act), the general rule under the federal Fair Housing Act is that the requesting tenant is responsible for the costs associated with a reasonable modification (meaning a structural change) to the property.  But what happens when a tenant requests a modification that should have already been part of the property under the Fair Housing Act’s Design and Construction Guidelines?  In this event, landlords may need to make the modification at their expense—and they may need to keep their fingers crossed that the tenant doesn’t make a claim for discrimination!

The Fair Housing Act’s Design and Construction Guidelines require that covered multifamily dwellings built for first occupancy after March 13, 1991 meet certain minimum accessibility and adaptability standards.  The Department of Housing and Urban Development (HUD) has provided guidance stating that if a tenant makes a reasonable modification request for a structural change to the property that should have been included in the unit or common use area when the property was constructed, then the owner may be responsible for providing and paying for the requested structural changes.  This is an exception to the general rule under the Fair Housing Act that the requesting tenant is responsible for the costs associated with a reasonable modification request.

Moreover, and perhaps even more concerning to landlords, under the Act any person or entity involved with the design and construction process of the noncompliant property may be sued for discrimination.  So landlords who have a noncompliant property built may find themselves facing a discrimination claim from a disabled tenant.  Given this, if a landlord receives a reasonable modification request for a change to the property that should have already existed under the Design and Construction Guidelines, it may behoove that landlord to make that modification as quickly as possible, and at their expense!

Under the Fair Housing Act, property owners and management companies are required to ensure that all tenants have an equal opportunity to use and enjoy a property.  Generally, this means that management must grant reasonable accommodation and modification requests where necessary to afford a tenant the full use of the property.  But what is the difference between a reasonable accommodation and a reasonable modification under the Fair Housing Act?  Well, in a word—cost!

First things first though.  A reasonable accommodation is a change, exception, or adjustment to a property rule, policy, practice, or service.  A reasonable modification is a structural change made to the premises.  So, for example, a request by a tenant in a wheelchair for a guide dog in an apartment community with a “no pets” policy is a reasonable accommodation request; a request by a tenant in a wheelchair to install grab bars in the bathroom is a reasonable modification request.

In my experience, however, I have found that property owners and management companies are more interested in the cost aspect of reasonable accommodations and modifications.  Generally speaking, under the federal Fair Housing Act, management is responsible for the costs associated with a reasonable accommodation, while the tenant is responsible for the costs associated with a reasonable modification.  There are a few exceptions to the general rule regarding cost (which I will explore in a subsequent blog post), such as where the requested modification is one that should have been included in the unit or common use area when the property was constructed pursuant to the Fair Housing Act’s Design and Construction Guidelines, or where the property receives federal funding.

In closing, here are a few additional caveats regarding cost.  First, you may request that a tenant restore the modified portions of the interior of the unit to the previous condition only where “it is reasonable to do so.”  Contrast this from modifications to common areas of the property or the exterior of the unit, which the tenant is not required to restore to the original condition at the end of his or her tenancy.  And, while the tenant is generally required to pay for reasonable modifications made to common areas of the property, if the modification is made to a common area that is normally maintained by management, then management is responsible for the upkeep and maintenance of the modification as well.

Reasonable accommodation and modification requests can be tricky, and I would encourage property owners and management companies to consult with a local, experienced attorney regarding these requests—particularly given that other jurisdictions (such as Massachusetts) have enacted statutes placing the burden of the cost of a reasonable modification on the landlord.

One common question from landlords and property managers is whether they are permitted to request supporting information from tenants who have made an accommodation request under the federal Fair Housing Act.  The stakes for owners and property managers here are high—a single misstep can lead to a costly discrimination claim.

Thankfully, HUD—the Department of Housing and Urban Development —has given some pretty clear guidance on this issue.  Generally speaking, the inquiries that you may make—and the verifying information that you may require—depends on the degree to which the requester’s disability or the disability-related need for the accommodation is either obvious or known.  The following is an overview of the guidance that HUD has provided regarding responding to a reasonable accommodation request:

• If the requester’s disability is obvious, or known to you, and the need for the accommodation is also readily apparent or known, then you may not request any additional information about the disability or the disability-related need for the accommodation.  Example:  An applicant with an obvious vision impairment requests an accommodation to a property’s “no pets” policy to allow the applicant’s seeing eye dog in his unit. Here, you may not require the applicant to provide any additional information about the disability or the disability-related need for the accommodation.   

• If the requester’s disability is known or readily apparent, but the need for the accommodation is not readily apparent or known, then you may request only information that is necessary to evaluate the disability-related need for the accommodation.  Example: An applicant who uses a wheelchair makes a reasonable accommodation request to allow an assistance dog in her unit even though the property has a “no pets” policy.  Here, even though the applicant’s disability is readily apparent, the need for the accommodation is not obvious—thus, you may ask the applicant to provide information about the disability-related need for the dog. 

• If the requester’s disability is not obvious, then you may request reliable disability-related information that: 1) is necessary to verify that the requester has a disability within the meaning of the Fair Housing Act; 2) describes the needed accommodation; and 3) shows the relationship between the requester’s disability and the need for the requested accommodation.  This information can usually be obtained directly from the requester, or from a medical professional, peer support group, non-medical service agency, or other reliable third party.  Under most circumstances, an individual’s medical records or detailed information about the nature of a person’s disabilities will not be necessary.

Landlords and property managers often wonder whether they can deny a resident’s fair housing accommodation request for an assistance animal because the animal is on a “restricted breeds” list.  The short answer is “no.”  Or, perhaps more accurately, “probably not.”

The federal Fair Housing Act, 42 U.S.C. §§ 3601 et seq., requires that properties make reasonable accommodations in rules, policies, practices, or services when those accommodations are necessary to afford people with disabilities the equal opportunity to use and enjoy an apartment community.  Consequently, a property with a “no pets” policy must make an exception to that policy and grant a reasonable accommodation request to allow an assistance animal at the property when: 1) the resident making the request has a disability within the meaning of the Fair Housing Act; and 2) the resident making the request has a disability-related need for the assistance animal.

But wait, you say!  What if a resident is requesting an emotional support pit bull, and my community has a restricted breeds policy that prohibits dangerous breeds, such as pit bulls?  May the request be denied as “unreasonable”?  Put simply, probably not.  HUD (the U.S. Department of Housing and Urban Development, the agency charged with enforcing the Fair Housing Act) has made clear that “[b]reed, size, and weight limitations may not be applied to an assistance animal.”

But what about the threat that a dangerous breed, such as a pit bull, might pose?  According to HUD, any determination that an assistance animal poses a direct threat to the safety of the community (or would cause substantial physical damage to property) must be based on an individualized assessment of the specific animal at issue.  In other words, housing providers are not allowed to deny an assistance animal request simply because they believe that particular breeds—such as pit bulls—are dangerous.  Instead, the denial must be based on objective evidence about the specific animal’s actual conduct.  Therefore, consider requiring a certification stating that the animal does not have any aggressive, dangerous, or vicious propensities.