How to Comply with Fair Housing Law When Dealing with People Who Are Deaf or Hard of Hearing
The Fair Housing Act (FHA) prohibits discrimination against persons with disabilities. The law broadly defines “disability” as a physical or mental impairment that substantially limits one or more major life activities. And fair housing law classifies hearing impairments as disabilities when they substantially limit—that is, prevent or severely restrict—major life activities such as hearing or communicating. In FY 2014, disability was the most common basis of complaints filed with HUD and its partner agencies, being cited as a basis for 4,606 complaints, or 54 percent of the overall total.
A recent study released by HUD and the Urban Institute provided results of the first national paired-testing study of housing discrimination against people who are deaf or hard of hearing and against people who use wheelchairs. Given differences in the challenges faced by people who are deaf or hard of hearing from those experienced by people who use wheelchairs, there are two study designs. Tests with people who are deaf or hard of hearing focused on housing searches conducted with telecommunication relay services, whereas tests with people who use wheelchairs focused on housing searches for accessible buildings and housing units. In both cases, there existed systematic evidence of unfavorable treatment.
When people who are deaf or hard of hearing use a telecommunication relay service to contact housing providers about advertised units, the study found that providers are less likely to take their calls than calls from hearing prospects. The study also found that providers are more likely to take calls from people who use the more advanced version of assisted telephoning—Video Relay Service (VRS)—but they do not take all VRS calls.
Applicants who are deaf or hard of hearing who do successfully reach a housing provider are less likely than other applicants to be told about available units. Although this study could not determine whether the differential treatment was because of the applicant’s hearing status or the communication delays caused by the technology, the findings indicate significant differences in housing providers’ willingness to engage when contacted remotely.
Effective communications with all prospects, applicants, and residents are an essential aspect of site operations. Ensuring effective communications is a key strategy to avoid fair housing problems when dealing with people who are deaf or hard of hearing. The challenge is that the disability provisions cover a broad array of people—with total or partial hearing loss—who use a variety of communication tools and techniques. Consequently, it may be necessary to make adjustments in the way you talk on the phone or meet with prospects to ensure that you understand—and are understood by—people who are deaf or hard of hearing.
We’ll suggest five rules for facilitating communications with individuals who are deaf or hard of hearing, and explain how to handle any reasonable accommodation or modification requests.
Rule #1: Welcome Contacts from Prospects Who Are Deaf or Hard of Hearing
Don’t discriminate against deaf or hard-of-hearing prospects—regardless of whether they contact you by telephone or newer video, text, and online systems.
For many years, people who are deaf or hard of hearing have communicated by telephone using TTY devices (also known as TDD or text telephones). A TTY machine consists of a typewriter keyboard that displays typed conversations onto a readout panel or printed on paper. If both parties have a TTY device, they can communicate by typing messages to each other directly.
The law generally doesn’t require rental offices to get their own TTY/TTD devices, although some fair housing advocates recommend that sites consider purchasing the devices to facilitate communications with prospects who are deaf or hard of hearing.
Otherwise, you should be prepared to accept calls from TTY devices through the national toll-free telecommunications relay service. In essence, the system uses a relay operator as a go-between: the TTY user types input into the device and the relay operator reads the message to the person receiving the call, and then types that person’s response back to the TTY user.
Calls through the relay system can take extra time, which can result in discriminatory treatment against deaf or hard-of-hearing prospects.
Some people still rely on TTY machines, but federal experts on deafness and communication disorders say that TTY machines have almost become a thing of the past. Using today’s new electronic communication devices, people can place phone calls through the telecommunications relay service using almost any device with a keypad, such as a laptop or cell phone. Some skip the relay system altogether by communicating via email or text messaging.
Another system uses voice recognition software and an extensive library of video clips depicting American Sign Language to translate a signer’s words into text or computer-generated speech—and to translate spoken words back into sign language or text. Those familiar with the video relay say they are nearly the same as standard telephone calls but without the delays of the traditional TTY and text relay.
Despite the increasing use of new technology, owners should still be prepared to handle telephone calls from TTY and other devices using the telecommunications relay system. It’s unlawful to refuse to accept calls via the relay system simply because it seems more cumbersome or takes more time than standard telephone calls.
Example: In October 2012, a federal court refused to reopen a 2002 judgment against a defendant for refusal to accept TTY calls from a deaf prospect in violation of fair housing law. The case involved the operator of a referral service in the New York City room rental market. Allegedly, he listed rooms available only in buildings that were either owner-occupied or had fewer than four units, which are generally exempt from federal fair housing law—though not the ban on discriminatory advertising.
In 1997, a deaf prospect used the relay system to call about an advertised vacancy. Allegedly, the defendant responded that he didn’t service the disabled and when the prospect tried to call back, the defendant swore at him and hung up. According to the court, the defendant later admitted that his company didn’t accept calls from the relay system or do business with disabled people, and that he used profanity to chase them away. After a trial, the court found that the company engaged in outrageous and illegal conduct and awarded punitive damages.
Recently, the defendant asked the court to overturn the ruling, accusing the government of fraud by inducing the prospect to lie about the type of housing he was seeking. The court refused, ruling that it didn’t matter because the evidence showed that the defendant ended the prospect’s call before even speaking with him about the type of housing he was seeking [Space Hunters, Inc. v. U.S., October 2012].
To avoid fair housing problems, it’s also important to give prospects using the relay system the same information about prices, availability, and rental qualifications as provided to prospects making standard telephone calls. Apply your standard follow-up procedures—for example, requesting contact information and contacting prospects to encourage them to rent at the site—regardless of whether the prospect uses the relay system or some other means to communicate with your site.
Rule #2: Ensure Effective Communications During Site Visits
Treat prospects who are deaf or hard of hearing with professional courtesy when they visit your site. Welcome them to your leasing office as you would any other prospect—don’t treat them differently or ask disability-related questions simply because a prospect wears hearing aids or uses American Sign Language to communicate.
Keep in mind some general guidelines to ensure effective communication with prospects who are deaf or hard of hearing. Before speaking to the prospect, for example, make sure you have his attention by standing in his field of vision or waving your hand. Identify yourself and speak directly to the prospect, rather than to a companion or sign language interpreter who may have accompanied him. Ask him how he would prefer to communicate—he may want you to face him directly and to speak slowly if he has a partial hearing loss or he can lip read. If your meeting is interrupted, ask the prospect to excuse you, deal with the matter quickly, and get his attention before you resume your conversation.
Ask if it would be helpful to communicate in writing. Notes passed back and forth are often effective, or the prospect may prefer to use a computer terminal to type questions and receive answers. And give him written copies of your leasing packet, including leasing policies and procedures, application guidelines and forms, and other useful information.
Document that the prospect has received the packet along with the pertinent details of the visit. Take note of anyone whom the prospect has brought along to help with communications and what was discussed, including any requested accommodations or modifications. Good record keeping can help you avoid misunderstandings and protect you from discrimination claims.
Rule #3: Grant Reasonable Requests for Visual Smoke Detectors and Other Safety Devices
Fair housing law requires sites to allow residents who are deaf or hard of hearing, at their expense, to make reasonable modifications to their units or common areas when necessary to allow them to fully use and enjoy the property.
Many of the safety devices required by law or commonly found in sites—such as conventional fire alarms, smoke detectors, and carbon monoxide detectors—operate by using alarms, buzzers, and other sounds to alert residents to potential dangers. Other devices that rely on sound are intercoms and buzzers to alert residents to visitors at their door or building entrance.
Since sound-based devices are of little or no use to residents who are deaf or hard of hearing, you may be asked to provide them with alternatives that use strobe lights or other visual alerts. If you generally provide conventional devices to your residents, then you must grant requests from residents who are deaf or hard of hearing for their visual equivalent.
Who has to pay to buy and install these devices? It’s recommended that sites pay to buy and install visual smoke detectors if requested by a resident who is deaf or hard of hearing—since the costs of battery-operated devices are minimal and the potential risks of injury from smoke or fire are high. In some states, such as Maryland, the law requires owners to pay for the installation of visual smoke detectors when requested by a resident who is deaf or hearing impaired.
For other requests, you may wish to consult your attorney, since the answer depends on whether the device is considered an accommodation or a modification. The law generally requires the resident to pay for reasonable modifications—that is, alterations of the physical structure of the unit or common areas—while the site is responsible to pay some costs associated with requests for reasonable accommodations—that is, alteration of rules or services—when necessary for individuals with disabilities.
The HUD/DOJ guidance on reasonable modifications provides this example: Because of a hearing disability, a resident wishes to install a peephole in her door so she can see who’s at the door before she opens it. This is a reasonable modification and must be permitted at the resident’s expense, according to the guidelines.
In another example of a reasonable modification, the guidelines describe how to handle a request by a deaf resident who asks the community to allow him to install extra electrical lines and a cable line so he can use computer equipment that helps him communicate with others. If his disability is known, the guidelines state that the community may not require him to document his disability; however, since the need for the electrical and cable lines may not be apparent, the community may request information that’s necessary to support the disability-related need for the requested modification.
The National Association for the Deaf offers another example of a reasonable modification, stating that deaf tenants are permitted to install visible doorbells—but that they must pay for the modification and may have to restore the property to its original condition later. On the other hand, the association says a site that has an intercom or other coded entry system must provide an equally effective alternative for deaf or hard-of-hearing residents or visitors to enter as a reasonable accommodation.
Rule #4: Grant Disability-Related Requests for Assistance Animals
Whatever your policy on pets, it’s important to remember that assistance animals are not considered pets under fair housing law, so you must consider making an exception when requested to allow an assistance animal as a reasonable accommodation for an individual with a disability.
In particular, a resident who is deaf or hard of hearing may ask for an exception to your pet policies so that she can keep an assistance animal that’s trained to alert her to sounds. According to HUD/DOJ guidelines on reasonable accommodations, fair housing law requires communities to grant a request when there’s an identifiable relationship between the requested accommodation and the individual’s disability. The guidelines list the example of a tenant who’s deaf who requests an exception to a “no pet” policy to 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 the exception to its “no pets” policy, according to the guidelines.
If the animal qualifies as an assistance animal, you can’t require a resident with a disability to pay extra fees or deposits as a condition of receiving a reasonable accommodation. According to HUD/DOJ guidelines, a housing provider may not require an applicant with a hearing impairment to pay a fee or a security deposit as a condition of allowing her to keep an assistance animal.
Nevertheless, the resident is obligated to prevent the animal from threatening the health or safety of others and is responsible for the animal’s care and maintenance, according to HUD. If the animal causes damage to her unit or common areas, the HUD/DOJ guidelines state that the site may charge the resident for the cost of repairing the damage (or deduct it from the standard security deposit imposed on all residents), if it’s the site’s practice to assess residents for any damage they cause to the premises.
Rule #5: Consider Requests to Provide Sign Language Interpreters
Although it doesn’t come up often, there are circumstances in which you could be required to provide a sign language interpreter to facilitate communications with a resident who is deaf or hard of hearing.
Such a request falls under the FHA’s reasonable accommodation requirements, according to fairhousingfirst.org, the HUD-supported website that promotes fair housing compliance. The site lists two examples—although neither involves rental housing, they provide some guidance on when you could be required to pay the costs associated with arranging for a sign language interpreter.
One involves a condominium resident who asks for a sign language interpreter to interpret homeowner association meetings that affect her legal or financial obligations; the other is the potential homebuyer in discussions with the builder during construction. In both cases, the website suggests that the request should be granted unless it amounts to an undue financial and administrative burden. If it does pose such a burden, then the parties should engage in an interactive process to find a workable alternative strategy that would ensure effective communication.
Applying those examples to your site, you could be asked for a sign language interpreter to provide translation services for a deaf resident at important resident meetings. Or you could be asked to provide an interpreter at meetings about grievances or disputes involving a resident who is deaf or hard of hearing. Even though it may involve some costs, fair housing law may require you to pay for an interpreter if it’s necessary and doesn’t impose an undue financial and administrative burden.
Tim Burr: Information Manager, Yarmouth Management, 309 7th Street SE, Washington, DC 20003; (202) 547-3511; TimBurr@YarmouthM.com.
F. Willis Caruso, Esq.: Co-Executive Director, The John Marshall Law School Fair Housing Legal Support Center and Clinic, 321 South Plymouth Court, Ste. CBA-800, Chicago, IL 60604; (312) 786-9842; 6Caruso@jmls.edu.
Nadeen W. Green, Esq.: Senior counsel, For Rent Media Solutions™, 294 Interstate N. Pkwy., Ste. 100, Atlanta, GA 30339; (770) 801-2406; firstname.lastname@example.org.
Edward G. Kramer, Esq.: Fair Housing Law Clinic, The Housing Advocates, Inc., Cleveland, OH 44115; (216) 431-7400; KramerE7@aol.com.
D. J. Ryan: Fair Housing Specialist, Director of Client Education, Kimball, Tirey & St. John LLP, 7676 Hazard Center Dr., #450, San Diego, CA 92108; (619) 234-1690; DJ.Ryan@KTS-LAW.com.
Carl York: Vice President, Sentinel Real Estate Corp., 8495 Scenic View Dr., Ste. 106, Fishers, IN 46038; (317) 570-6724; York@sentinelcorp.com.