How to Prevent Fair Housing Claims from Individuals with Nonobvious Disabilities
While the IRS is generally responsible for the low-income housing tax credit program, in 2000 it entered into a Memorandum of Understanding with the Department of Housing and Urban Development (HUD) and the Department of Justice (DOJ) to enforce fair housing laws. HUD is generally charged with enforcing the Fair Housing Act (FHA), and may refer cases to the DOJ. The FHA prohibits discrimination in housing and housing-related transactions, including the sale, rental, and financing of dwellings, based on race, color, religion, sex, national origin, familial status, and disability.
Along with avoiding potential penalties imposed by the DOJ, site owners and managers have a further incentive to be mindful of fair housing laws: Their site’s tax credits may be jeopardized if fair housing laws are violated. Section 1.42-9 of the Income Tax Regulations says that the failure of a low-income housing tax credit site to comply with the requirements of the FHA results in the denial of credits on a per-unit basis. Thus, an adverse final decision by the Secretary of HUD, a state or local fair housing agency, or a federal court could result in the disallowance of credits, recapture of credits, and preclusion of future credits on the affected units. And if the reduction in the number of the low-income units in the building(s) brings the project below the minimum set-aside requirement, all the site’s credits could be disallowed.
In this article, we’ll explore the fair housing rules as they pertain to individuals whose disabilities may not be obvious or apparent. We’ll give you six rules to follow to help you avoid claims from these individuals. Because of the way that fair housing law defines “disability,” it’s sometimes difficult to know whether disability-related rules apply to a particular prospect or resident. For example, when the nature of an individual’s disability isn’t apparent, your staff may fail to recognize that a prospect’s request for an exception to your rules must be evaluated as a request for a reasonable accommodation. Or, if a leasing agent doesn’t realize a prospect or resident is considered disabled under fair housing law, you could be accused of discrimination if he doesn’t take the request seriously.
The FHA defines “disability” as a physical or mental impairment that substantially limits one or more major life activities. The definition involves three key phrases:
Physical or mental impairment. HUD regulations broadly define physical or mental impairment to include any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more specified body systems, including neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine. It also includes any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
According to HUD regulations, examples of physical or mental impairments include, but are not limited to: orthopedic, visual, speech, and hearing impairments; cerebral palsy; autism; epilepsy; muscular dystrophy; multiple sclerosis; cancer; heart disease; diabetes; human immunodeficiency virus (HIV) infection; mental retardation; emotional illness; drug addiction (other than addiction caused by current, illegal use of a controlled substance); and alcoholism.
Substantially limits. HUD says that substantially limits means a limitation is “significant” or “to a large degree.”
Major life activity. According to HUD, major life activity means an activity that is of central importance to daily life, including, but not limited to: seeing, hearing, walking, breathing, performing manual tasks, caring for oneself, and speaking. HUD also notes that reproduction is a major life activity for certain individuals.
If an individual has a physical or mental impairment that substantially limits a major life activity, she is protected under the FHA’s disability-related provisions—even if the disability is not obvious or apparent.
FOLLOW SIX RULES
To avoid claims from individuals with nonobvious disabilities, follow these six rules.
Rule #1: Don’t Make Assumptions Based on Appearances
Don’t rely on appearances to determine whether a prospect or resident is—or is not—entitled to protection under the FHA’s disability provisions. Given the broad definition of disability under the FHA, appearances can be deceiving. HUD’s list of impairments includes many physical and emotional conditions characterized by few, if any, obvious symptoms to suggest that a particular prospect qualifies under the FHA’s disability-related provisions. You could get in trouble, for example, if you questioned the credibility of any prospect who says he’s disabled but shows no outward sign of an impairment.
Or you may recognize that a prospect has an impairment, but don’t know whether it’s severe enough to substantially limit a major life activity. You could trigger a complaint if, for example, you ignore a request for a reasonable accommodation from a prospect who shows no apparent difficulty walking but asks for an assigned parking spot due to a mobility impairment. If he has an impairment that substantially limits a major life activity—even if his condition is intermittent or characterized by some good days and some bad days—he could qualify as an individual with a disability under fair housing law.
Rule #2: Curb Curiosity About Disability
Another way to get into fair housing trouble is to ask the wrong questions. Under the FHA, it’s unlawful to ask applicants about whether they or a family member have a disability or about the nature and severity of such a disability. However, you may ask some questions—as long as you ask all applicants, regardless of whether they have a disability—to determine whether an applicant:
- Has the ability to meet the requirements of tenancy;
- Is a current illegal abuser or addict of a controlled substance; or
- Has been convicted of the illegal manufacture or distribution of a controlled substance.
Although you may ask applicants about current drug use, you may not screen out applicants with a past history of drug addiction, who are protected under the FHA’s disability-related provisions. For example, you may not reject an applicant simply because she lists a drug treatment facility as her current address.
Rule #3: Listen for Accommodation Requests
Keep your ears tuned for accommodation requests, particularly when the applicant doesn’t appear to be disabled.
Anytime anyone asks you to make an exception to any of your policies or procedures, it should prompt you to think about fair housing rules governing reasonable accommodations for an individual with disabilities, advises fair housing attorney Robin Hein. The FHA doesn’t require an applicant or resident to mention fair housing law or to use the words “reasonable accommodation.” According to HUD, an applicant is making a request for a reasonable accommodation whenever she makes clear that she’s requesting an exception, change, or adjustment to a rule, policy, practice, or service because of a disability.
Furthermore, the FHA doesn’t require the request to come from the disabled person herself—HUD says that a site has notice that a request for a reasonable accommodation has been made if a person, her family member, or someone acting on her behalf makes the request.
Once someone asks for an exception to your rules, follow your site’s policies and procedures regarding reasonable accommodations for individuals with disabilities. Hein says that you may ask the applicant to fill out a standard form for accommodation requests, although you may not ignore a request if the applicant refuses to use your form. Hein suggests explaining that the form will help you understand and communicate the request to the person evaluating it. HUD recommends that accommodation requests be put in writing to prevent misunderstandings about what’s being requested or whether the request is made.
Rule #4: Ask for Information When Disability Isn’t Obvious
When you get an accommodation request from an individual whose disability isn’t obvious, HUD guidelines state that you may ask for reliable disability-related information to verify that the person meets the FHA’s definition of having a disability—that is, he has a physical or mental impairment that substantially limits one or more major life activities.
But you may not demand a doctor’s note to verify the disability. HUD guidelines say that, depending on the circumstances, the information usually can be provided by the individual himself—either proof that he receives certain forms of Social Security disability benefits or a “credible statement by the individual.” Or verification can come from a medical professional, a peer support group, a nonmedical service agency, or a “reliable third party who is in a position to know about the individual’s disability.” According to HUD, the individual’s medical records or detailed information about the nature of the disability is not necessary in most cases.
Rule #5: Determine Disability-Related Need for Accommodation
Once you’re satisfied that the individual has a disability as defined under the FHA, then you must evaluate whether there’s a disability-related need for the accommodation. There must be an identifiable relationship between the requested accommodation and the individual’s disability, according to HUD. If in doubt about the connection between an individual’s disability and the need for a requested accommodation, it’s best to consult with your attorney on how to respond. Under HUD guidelines, you may ask for more information if necessary to evaluate if the reasonable accommodation is needed because of a disability. Nevertheless, legal guidance may be necessary to respond properly.
Rule #6: Evaluate Alternatives When Request Is ‘Unreasonable’
The law doesn’t require you to make exceptions to your rules for an individual with a disability when the requested accommodation is unreasonable. But that doesn’t mean you may reject the request simply because it’s inconvenient or might involve some expense, because the term “unreasonable” has a specific meaning under fair housing law. According to HUD, an accommodation is unreasonable when:
- It would impose an undue financial and administrative burden on the site; or
- It would fundamentally alter the nature of the site’s operations.
Under HUD guidelines, the determination of undue financial and administrative burden must be made on a case-by-case basis involving various factors, such as the cost of the requested accommodation, the financial resources of the site, the benefits that the accommodation would provide to the requester, and the availability of alternative accommodations that would effectively meet the requester’s disability-related needs.
If you believe a request is unreasonable because it either requires fundamental alterations of your operations or imposes an undue financial and administrative burden, then you should suggest an alternative accommodation that would effectively address the individual’s disability-related needs, says Hein.
Robin Hein, Esq.: Attorney at Law, Fowler, Hein, Cheatwood and Williams, P.A., 2970 Clairmont Rd., Ste. 220, Atlanta, GA 30329; www.apartmentlaw.com.