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Alma Hernandez-BlackwellAlma Hernandez-BlackwellAttorney Advisor Attorney Advisor

Dept. of Housing and Urban DevelopmentDept. of Housing and Urban Development

Office of General Counsel for the SouthwestOffice of General Counsel for the Southwest Fair Housing Act:

Reasonable Accommodation

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What Is Prohibited?What Is Prohibited?FHAFHA

In the sale and rental of housing, no one may take In the sale and rental of housing, no one may take any of the following actions based on handicap:any of the following actions based on handicap:–   Refuse to rent or sell housing; Refuse to rent or sell housing;

– Refuse to negotiate for housing; Refuse to negotiate for housing;

– Make housing unavailable; Make housing unavailable;

– Deny a dwelling; Deny a dwelling;

– Set different terms, conditions or privileges for Set different terms, conditions or privileges for

sale or rental of a dwelling;sale or rental of a dwelling;

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What Is Prohibited?What Is Prohibited?FHA FHA (cont.)(cont.)

In the sale and rental of housing, no one may take In the sale and rental of housing, no one may take any of the following actions based on handicap:any of the following actions based on handicap:– Provide different housing services or facilities;Provide different housing services or facilities;

– Falsely deny that housing is available for inspection, Falsely deny that housing is available for inspection, sale or rent;sale or rent;

– For profit, persuade owners to sell or rent For profit, persuade owners to sell or rent (blockbusting); or(blockbusting); or

– Deny anyone access to or membership in a facility or Deny anyone access to or membership in a facility or service (such as a multiple listing service) related to the service (such as a multiple listing service) related to the sale or rental of housing. sale or rental of housing.

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What Is Prohibited?What Is Prohibited?FHA FHA (cont’d)(cont’d)

No one may take any of the following actions based on No one may take any of the following actions based on handicap:handicap:

–   Refuse to make a mortgage loan Refuse to make a mortgage loan

– Refuse to provide information regarding loans Refuse to provide information regarding loans

– Impose different terms or conditions on a loan, such as Impose different terms or conditions on a loan, such as different interest rates, points, or fees different interest rates, points, or fees

– Discriminate in appraising property Discriminate in appraising property

– Refuse to purchase a loan Refuse to purchase a loan

– Set different terms or conditions for purchasing a loanSet different terms or conditions for purchasing a loan Insurance CasesInsurance Cases

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What Is Prohibited?What Is Prohibited?FHA FHA (cont’d)(cont’d)

In addition, it is illegal for anyone to:In addition, it is illegal for anyone to:–    Threaten, coerce, intimidate or interfere with Threaten, coerce, intimidate or interfere with

anyone anyone exercising a fair housing right or exercising a fair housing right or assisting others who assisting others who exercise that right. 42 U.S.C. exercise that right. 42 U.S.C. §3617§3617

– Advertise or make any statement that indicates a Advertise or make any statement that indicates a limitation or preference based on handicap. 42 limitation or preference based on handicap. 42

U.S.C. §3604(c)U.S.C. §3604(c)» This prohibition against discriminatory advertising This prohibition against discriminatory advertising

applies to single-family and owner-occupied applies to single-family and owner-occupied housing that is otherwise exempt from the Fair housing that is otherwise exempt from the Fair Housing Act.Housing Act.

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What Is Prohibited?What Is Prohibited?FHAFHA (cont’d)(cont’d)

A landlord may not:A landlord may not:

» Refuse to let a disabled person make reasonable Refuse to let a disabled person make reasonable modifications to a dwelling or common use areas, modifications to a dwelling or common use areas, at at his/her expensehis/her expense, if necessary for the disabled person , if necessary for the disabled person to use the housing. to use the housing.

» Refuse to make reasonable accommodations in Refuse to make reasonable accommodations in rules, policies, practices or services if those rules, policies, practices or services if those accommodations may be necessary to afford such accommodations may be necessary to afford such person equal opportunity to use and enjoy a person equal opportunity to use and enjoy a dwelling. dwelling.

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What is a Reasonable Accommodation?What is a Reasonable Accommodation?

A change, exception, adjustment to a rule, policy, practice, or A change, exception, adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public an equal opportunity to use and enjoy a dwelling, including public and common use spaces.and common use spaces.

A housing provider need not “do everything humanly possible to A housing provider need not “do everything humanly possible to accommodate a disabled person.” accommodate a disabled person.” Bronk v. Ineichen, 54 F.3d 425 Bronk v. Ineichen, 54 F.3d 425 (7(7thth Cir. 1995). Cir. 1995).

However, a housing provider must make an accommodation unless However, a housing provider must make an accommodation unless it imposes an undue financial or administrative burden on a it imposes an undue financial or administrative burden on a provider or requires a fundamental alteration in the nature of its provider or requires a fundamental alteration in the nature of its program. program.

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Undue BurdenUndue Burden

FACTORS:FACTORS:

The financial resources of the provider,The financial resources of the provider, the cost of the RA, the cost of the RA, the benefits to the requester of the requested the benefits to the requester of the requested

accommodation, accommodation, and the availability of other, less expensive alt. and the availability of other, less expensive alt.

accommodations that would effectively meet the accommodations that would effectively meet the applicant or resident's disability-related needs.applicant or resident's disability-related needs.*Courts have ruled that the Act may require a housing provider to *Courts have ruled that the Act may require a housing provider to grant a reasonable accommodation that involves costs.grant a reasonable accommodation that involves costs.*This is determined on a case by case basis.*This is determined on a case by case basis.

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Examples of Examples of Reasonable AccommodationsReasonable Accommodations

Parking SpacesParking Spaces

Motorized ScootersMotorized Scooters

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Proof Required for R.A.Proof Required for R.A.

1.1. Person has a disability.Person has a disability.

2.2. Respondent knew or should reasonably be Respondent knew or should reasonably be expected to have known of this disability.expected to have known of this disability.

3.3. Accommodation of the disability “may be Accommodation of the disability “may be necessary” to afford Complainant an equal necessary” to afford Complainant an equal opportunity to use and enjoy the housing.opportunity to use and enjoy the housing.

4.4. Respondent refused to make such an Respondent refused to make such an accommodation.accommodation.

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Element OneElement One How Is Disability Defined? How Is Disability Defined?

Any person who has a physical or mental Any person who has a physical or mental impairment that substantially limits one or more impairment that substantially limits one or more major life activities; major life activities;

Or has a record of such an impairment;Or has a record of such an impairment;

Or is regarded as having an impairment.Or is regarded as having an impairment.

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Physical ImpairmentPhysical Impairment

Any physiological disorder or condition, Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss cosmetic disfigurement, or anatomical loss affecting one or more of the following body affecting one or more of the following body systems: Neurological; musculoskeletal; systems: Neurological; musculoskeletal; special sense organs; respiratory; special sense organs; respiratory; cardiovascular; reproductive; digestive; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; genito-urinary; hemic and lymphatic; skin; and endocrine.and endocrine.

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Mental ImpairmentMental Impairment

Any mental or psychological disorder, such Any mental or psychological disorder, such as mental retardation, organic brain as mental retardation, organic brain syndrome, emotional or mental illness, and syndrome, emotional or mental illness, and specific learning disabilities.specific learning disabilities.

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Examples of Impairments Which May Examples of Impairments Which May Result in DisabilityResult in Disability

Visual, speech, & hearing impairmentsVisual, speech, & hearing impairments Cerebral palsyCerebral palsy AutismAutism EpilepsyEpilepsy Muscular dystrophyMuscular dystrophy Multiple sclerosisMultiple sclerosis CancerCancer Heart diseaseHeart disease DiabetesDiabetes HIV infectionHIV infection Drug addiction (other than addiction caused by Drug addiction (other than addiction caused by

current, illegal use of a controlled substance)current, illegal use of a controlled substance) AlcoholismAlcoholism

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Major Life ActivitiesMajor Life Activities

• SeeingSeeing

• HearingHearing

• BreathingBreathing

• WalkingWalking

• Performing manual tasks*Performing manual tasks*

• Caring for one's selfCaring for one's self

• LearningLearning

• SpeakingSpeaking

• Working-broad class of jobsWorking-broad class of jobs

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PermanencePermanence

• The impairment must be long-term, The impairment must be long-term, permanent, or indefinite to be considered a permanent, or indefinite to be considered a disability under the “substantially limits a disability under the “substantially limits a major life activity” prong.major life activity” prong.

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Manual TasksManual Tasks

Toyota Motor Manufacturing, Kentucky, Inc. v. Toyota Motor Manufacturing, Kentucky, Inc. v. WilliamsWilliams, 534 U.S. 184, 534 U.S. 184 (2002) (holding that to be (2002) (holding that to be substantially limited in performing manual tasks, substantially limited in performing manual tasks, an individual must have an impairment that an individual must have an impairment that prevents or severely restricts the individual from prevents or severely restricts the individual from doing activities that are of central importance to doing activities that are of central importance to most people’s daily lives, and not just limited in most people’s daily lives, and not just limited in performing manual tasks associated with a specific performing manual tasks associated with a specific job).job).

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Element TwoElement TwoKnew or Should Have KnownKnew or Should Have Known

Jankowski Lee & Associates v. HUDJankowski Lee & Associates v. HUD, 91 F.3d 891 (7, 91 F.3d 891 (7thth Cir. Cir. 1996)1996)– Court rejected landlord’s defense that the plaintiff’s disability was Court rejected landlord’s defense that the plaintiff’s disability was

not apparent and found that the landlord did not ask for not apparent and found that the landlord did not ask for verification of his disability.verification of his disability.

If a housing provider has doubts as to a complainant’s If a housing provider has doubts as to a complainant’s disability, the landlord should open a dialogue or make an disability, the landlord should open a dialogue or make an inquiry.inquiry.

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Element 3Element 3 Necessity (Think “Nexus”) Necessity (Think “Nexus”)

Requires, at a minimum, the showing that Requires, at a minimum, the showing that the desired accommodation will the desired accommodation will affirmatively ameliorate the effects of the affirmatively ameliorate the effects of the disability.disability.

Example: Example: Deaf tenant who wants a waiver Deaf tenant who wants a waiver to the landlord’s “no pets” policy for an to the landlord’s “no pets” policy for an assistance dog would need to show that the assistance dog would need to show that the dog was trained to assist them in their daily dog was trained to assist them in their daily activities.activities.

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How Should theHow Should the RA be Made? RA be Made?

Can be orally or in writingCan be orally or in writing Only requirement: makes clear to the housing Only requirement: makes clear to the housing

provider that s/he is requesting an exception, provider that s/he is requesting an exception, change, or adjustment to a rule, policy, practice, or change, or adjustment to a rule, policy, practice, or service because of her disabilityservice because of her disability

Doesn’t have to be on a special form or process—Doesn’t have to be on a special form or process—housing provider must still give RA request adequate considerationhousing provider must still give RA request adequate consideration

Doesn’t have to be made personallyDoesn’t have to be made personally Doesn’t need to mention any magic words, like Doesn’t need to mention any magic words, like

“FHA or RA”. “FHA or RA”.

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InquiriesInquiries

A HP is entitled to obtain info that is necessary to A HP is entitled to obtain info that is necessary to evaluate if a requested RA may be necessary because evaluate if a requested RA may be necessary because of a disability. of a disability.

A HP may not ordinarily inquire as to the nature and A HP may not ordinarily inquire as to the nature and severity of an individual's disability. severity of an individual's disability.

However, in response to a request for a RA, a HP may However, in response to a request for a RA, a HP may request reliable disability-related info that:request reliable disability-related info that:1. is necessary to verify that the person meets the Act's 1. is necessary to verify that the person meets the Act's definition of disability,definition of disability,2. describes the needed RA, and 2. describes the needed RA, and

3. shows the relationship b/w the person's disability & the need 3. shows the relationship b/w the person's disability & the need for the RA. for the RA.

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InquiriesInquiries

If disability is If disability is obviousobvious or or knownknown, and if the need , and if the need for the RA is also obvious or known, then no for the RA is also obvious or known, then no request for add’l info about disability or need for request for add’l info about disability or need for the accommodation.the accommodation.

EXAMPLE: EXAMPLE: A tenant w/ an obvious mobility impairment who regularly A tenant w/ an obvious mobility impairment who regularly uses a walker asks her HP to assign her a parking space uses a walker asks her HP to assign her a parking space near the entrance to the building. Since the physical near the entrance to the building. Since the physical disability (disability (i.ei.e., difficulty walking) and the disability-., difficulty walking) and the disability-related need for the RA are both readily apparent, the HP related need for the RA are both readily apparent, the HP may not require the tenant to provide any add’l info about may not require the tenant to provide any add’l info about her disability or the need for the RA.her disability or the need for the RA.

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InquiriesInquiries

If the disability is If the disability is knownknown or or readilyreadily apparent, but apparent, but the need for the RA is unknown, the provider may the need for the RA is unknown, the provider may request only info that is necessary to evaluate the request only info that is necessary to evaluate the disability-related need for the accommodation.disability-related need for the accommodation.

EXAMPLE:EXAMPLE:A rental applicant who uses a wheelchair advises a housing A rental applicant who uses a wheelchair advises a housing provider that he wishes to keep an assistance dog in his provider that he wishes to keep an assistance dog in his unit even though the provider has a "no pets" policy. The unit even though the provider has a "no pets" policy. The applicant's disability is readily apparent, but the need for applicant's disability is readily apparent, but the need for an assistance animal is not obvious to the provider. The an assistance animal is not obvious to the provider. The housing provider may ask the applicant to provide info housing provider may ask the applicant to provide info about the disability-related need for the dog.about the disability-related need for the dog.

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Inquiries-Inquiries-Disability UnknownDisability Unknown

• Information verifying the person’s disability can usually be provided by the Information verifying the person’s disability can usually be provided by the individual himself (individual himself (e.ge.g., proof that an individual under 65 years of age ., proof that an individual under 65 years of age receives Supplemental Security Income or Social Security Disability receives Supplemental Security Income or Social Security Disability Insurance benefitsInsurance benefits or a credible statement by the individual). or a credible statement by the individual).

A doctor or other medical professional, a peer support group, a non-medical A doctor or other medical professional, a peer support group, a non-medical service agency, or a reliable third party who is in a position to know about service agency, or a reliable third party who is in a position to know about the individual's disability may also provide verification of a disability. In the individual's disability may also provide verification of a disability. In most cases, an individual's medical records or detailed info about the nature most cases, an individual's medical records or detailed info about the nature of a person's disability is of a person's disability is not necessarynot necessary for this inquiry. for this inquiry.

Once a housing provider has established that a person meets the Act's Once a housing provider has established that a person meets the Act's definition of disability, the provider's request for documentation should seek definition of disability, the provider's request for documentation should seek only the info that is necessary to evaluate if the RA is needed because of only the info that is necessary to evaluate if the RA is needed because of a disabilitya disability. Such information must be kept confidential and must not be . Such information must be kept confidential and must not be shared with other persons unless they need the information to make or assess shared with other persons unless they need the information to make or assess a decision to grant or deny a RA request or unless disclosure is required by a decision to grant or deny a RA request or unless disclosure is required by law.law.

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Can I deny a request for a RA?Can I deny a request for a RA?

YESYES– if the request is not made by or on behalf of a if the request is not made by or on behalf of a

person with a disabilityperson with a disability– if there is no disability related need for the if there is no disability related need for the

accommodation.accommodation.– if providing the accommodation is not if providing the accommodation is not

reasonable – AN UNDUE FINANCIAL and reasonable – AN UNDUE FINANCIAL and ADMINISTRATIVE BURDENADMINISTRATIVE BURDEN

*If there will be a denial, you should discuss *If there will be a denial, you should discuss alternative accommodations.alternative accommodations.

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Reasonable ModificationReasonable Modification

At disabled person’s expenseAt disabled person’s expense Disabled person must inform the landlord of the Disabled person must inform the landlord of the

intent to modify before the modification is made. intent to modify before the modification is made. For a rental, where For a rental, where reasonablereasonable, landlord may , landlord may

condition permission on renter’s agreement to restore condition permission on renter’s agreement to restore interior of premises to original condition.interior of premises to original condition.

– Reasonable to request removal of grab bars.Reasonable to request removal of grab bars.

– Unreasonable to request narrowing of doorway Unreasonable to request narrowing of doorway b/c it will not interfere with next tenant’s use and b/c it will not interfere with next tenant’s use and enjoyment of the premises.enjoyment of the premises.

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Reasonable ModificationReasonable Modification

Landlord may NOT:Landlord may NOT:– increase the customary security deposit;increase the customary security deposit;– Require restoration of exterior areas, including Require restoration of exterior areas, including

community areas.community areas. Landlord MAY:Landlord MAY:

– negotiate as part of the restoration agreement, that negotiate as part of the restoration agreement, that the tenant pay money into escrow for reasonable the tenant pay money into escrow for reasonable restoration;restoration;

– Request a reasonable description of the proposed Request a reasonable description of the proposed modifications;modifications;

– Request reasonable assurances that the work will be Request reasonable assurances that the work will be done in a workmanlike manner and that any required done in a workmanlike manner and that any required building permits will be obtained.building permits will be obtained.

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Support AnimalsSupport Animals

HUD v. RiverbayHUD v. Riverbay, FH-FL Rptr. , FH-FL Rptr. ¶25,080 (ALJ 1994): ¶25,080 (ALJ 1994): Landlord violated FHA by refusing to allow mentally Landlord violated FHA by refusing to allow mentally disabled tenant to keep her dog, an assistance animal, which disabled tenant to keep her dog, an assistance animal, which was necessary to ease the effects of her recurrent depression.was necessary to ease the effects of her recurrent depression.

Support animal deposit issueSupport animal deposit issue– support animal = auxiliary aidsupport animal = auxiliary aid

There is no required training or certification for an animal to There is no required training or certification for an animal to be considered a support animal.be considered a support animal.– The animal can be trained by its owner.The animal can be trained by its owner.

Support animals includeSupport animals include– ServiceService– Emotional SupportEmotional Support

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Direct ThreatDirect Threat

The Act does not allow for exclusion of individuals based The Act does not allow for exclusion of individuals based upon fear, speculation, or stereotype about a particular upon fear, speculation, or stereotype about a particular disability or persons with disabilities in general.disability or persons with disabilities in general.

A determination that an individual poses a direct threat A determination that an individual poses a direct threat must rely on an individualized assessment that is based on must rely on an individualized assessment that is based on reliable objective evidence (reliable objective evidence (e.ge.g., current conduct, or a ., current conduct, or a recent history of overt acts).recent history of overt acts).

The assessment must consider: (1) the nature, duration, The assessment must consider: (1) the nature, duration, and severity of the risk of injury; (2) the probability that and severity of the risk of injury; (2) the probability that injury will actually occur; and (3) whether there are any injury will actually occur; and (3) whether there are any RA that will eliminate the direct threat. RA that will eliminate the direct threat.

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Direct Threat (cont.)Direct Threat (cont.)

Consequently, in evaluating a recent history of overt acts, Consequently, in evaluating a recent history of overt acts, a HP must take into account whether the individual has a HP must take into account whether the individual has received intervening treatment or medication that has received intervening treatment or medication that has eliminated the direct threat.eliminated the direct threat.

In such a situation, the HP may request that the individual In such a situation, the HP may request that the individual document how the circumstances have changed so that he document how the circumstances have changed so that he no longer poses a direct threat.no longer poses a direct threat.

A HP may also obtain satisfactory assurances that the A HP may also obtain satisfactory assurances that the individual will not pose a direct threat during the tenancy. individual will not pose a direct threat during the tenancy.

The HP must have reliable, objective evidence that a The HP must have reliable, objective evidence that a person with a disability poses a direct threat before person with a disability poses a direct threat before excluding him from housing on that basis. excluding him from housing on that basis.

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Internet ResourcesInternet Resources

Bazelon Center for Mental Health Law: Bazelon Center for Mental Health Law: www.bazelon.orgwww.bazelon.org

U.S. Department of Housing and Urban U.S. Department of Housing and Urban Development: Development: www.hud.govwww.hud.gov

The Housing Enforcement Office of the The Housing Enforcement Office of the Civil Rights Division of the U.S. Civil Rights Division of the U.S. Department of Justice: Department of Justice: www.usdoj.govwww.usdoj.gov

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That’s All Folks!That’s All Folks!

See you later!See you later!