"Reasonable Accommodations Under the Fair Housing Act - Joint Statement of the Department of Housing and Urban Development and the Department of Justice"

Reasonable Accommodations Under the Fair Housing Act - Joint Statement of the Department of Housing and Urban Development and the Department of Justice is a 15-page legal document that was released by the U.S. Department of Justice on May 17, 2004 and used nation-wide.

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U.S. DEPARTMENT OF JUSTICE
CIVIL RIGHTS DIVISION
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
OFFICE OF FAIR HOUSING AND EQUAL OPPORTUNITY
Washington, D.C.
May 17, 2004
JOINT STATEMENT OF
THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
AND THE DEPARTMENT OF JUSTICE
REASONABLE ACCOMMODATIONS UNDER THE
FAIR HOUSING ACT
Introduction
The Department of Justice ("DOJ") and the Department of Housing and Urban
1
Development ("HUD") are jointly responsible for enforcing the federal Fair Housing Act
(the
"Act"), which prohibits discrimination in housing on the basis of race, color, religion, sex,
2
One type of disability discrimination prohibited
national origin, familial status, and disability.
by the Act is the refusal to make reasonable accommodations in rules, policies, practices, or
services when such accommodations may be necessary to afford a person with a disability the
3
equal opportunity to use and enjoy a dwelling.
HUD and DOJ frequently respond to complaints
alleging that housing providers have violated the Act by refusing reasonable accommodations to
persons with disabilities. This Statement provides technical assistance regarding the rights and
obligations of persons with disabilities and housing providers under the Act relating to
1
The Fair Housing Act is codified at 42 U.S.C. §§ 3601 - 3619.
2
The Act uses the term “handicap” instead of the term "disability." Both terms have the
same legal meaning. See Bragdon v. Abbott, 524 U.S. 624, 631 (1998) (noting that definition of
“disability” in the Americans with Disabilities Act is drawn almost verbatim “from the definition
of 'handicap' contained in the Fair Housing Amendments Act of 1988”). This document uses the
term "disability," which is more generally accepted.
3
42 U.S.C. § 3604(f)(3)(B).
U.S. DEPARTMENT OF JUSTICE
CIVIL RIGHTS DIVISION
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
OFFICE OF FAIR HOUSING AND EQUAL OPPORTUNITY
Washington, D.C.
May 17, 2004
JOINT STATEMENT OF
THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
AND THE DEPARTMENT OF JUSTICE
REASONABLE ACCOMMODATIONS UNDER THE
FAIR HOUSING ACT
Introduction
The Department of Justice ("DOJ") and the Department of Housing and Urban
1
Development ("HUD") are jointly responsible for enforcing the federal Fair Housing Act
(the
"Act"), which prohibits discrimination in housing on the basis of race, color, religion, sex,
2
One type of disability discrimination prohibited
national origin, familial status, and disability.
by the Act is the refusal to make reasonable accommodations in rules, policies, practices, or
services when such accommodations may be necessary to afford a person with a disability the
3
equal opportunity to use and enjoy a dwelling.
HUD and DOJ frequently respond to complaints
alleging that housing providers have violated the Act by refusing reasonable accommodations to
persons with disabilities. This Statement provides technical assistance regarding the rights and
obligations of persons with disabilities and housing providers under the Act relating to
1
The Fair Housing Act is codified at 42 U.S.C. §§ 3601 - 3619.
2
The Act uses the term “handicap” instead of the term "disability." Both terms have the
same legal meaning. See Bragdon v. Abbott, 524 U.S. 624, 631 (1998) (noting that definition of
“disability” in the Americans with Disabilities Act is drawn almost verbatim “from the definition
of 'handicap' contained in the Fair Housing Amendments Act of 1988”). This document uses the
term "disability," which is more generally accepted.
3
42 U.S.C. § 3604(f)(3)(B).
4
reasonable accommodations.
Questions and Answers
1. What types of discrimination against persons with disabilities does the Act
prohibit?
The Act prohibits housing providers from discriminating against applicants or residents
5
because of their disability or the disability of anyone associated with them
and from treating
persons with disabilities less favorably than others because of their disability. The Act also
makes it unlawful for any person to refuse “to make reasonable accommodations in rules,
policies, practices, or services, when such accommodations may be necessary to afford ...
6
person(s) [with disabilities] equal opportunity to use and enjoy a dwelling.”
The Act also
prohibits housing providers from refusing residency to persons with disabilities, or placing
conditions on their residency, because those persons may require reasonable accommodations.
In addition, in certain circumstances, the Act requires that housing providers allow residents to
4
Housing providers that receive federal financial assistance are also subject to the
requirements of Section 504 of the Rehabilitation Act of l973. 29 U.S.C. § 794. Section 504,
and its implementing regulations at 24 C.F.R. Part 8, prohibit discrimination based on disability
and require recipients of federal financial assistance to provide reasonable accommodations to
applicants and residents with disabilities. Although Section 504 imposes greater obligations than
the Fair Housing Act, (e.g., providing and paying for reasonable accommodations that involve
structural modifications to units or public and common areas), the principles discussed in this
Statement regarding reasonable accommodation under the Fair Housing Act generally apply to
requests for reasonable accommodations to rules, policies, practices, and services under Section
504. See U.S. Department of Housing and Urban Development, Office of Public and Indian
Housing, Notice PIH 2002-01(HA) (www.hud.gov/offices/fheo/disabilities/PIH02-01.pdf) and
“Section 504: Frequently Asked Questions,” (www.hud.gov/offices/fheo/disabilities/
sect504faq.cfm#anchor272118).
5
The Fair Housing Act’s protection against disability discrimination covers not only
home seekers with disabilities but also buyers and renters without disabilities who live or
are associated with individuals with disabilities 42 U.S.C. § 3604(f)(1)(B), 42 U.S.C.
§ 3604(f)(1)(C), 42 U.S.C. § 3604(f)(2)(B), 42 U.S.C. § (f)(2)(C). See also H.R. Rep. 100-711 –
24 (reprinted in 1988 U.S.C.A.N. 2173, 2184-85) (“The Committee intends these provisions to
prohibit not only discrimination against the primary purchaser or named lessee, but also to
prohibit denials of housing opportunities to applicants because they have children, parents,
friends, spouses, roommates, patients, subtenants or other associates who have disabilities.”).
Accord: Preamble to Proposed HUD Rules Implementing the Fair Housing Act, 53 Fed. Reg.
45001 (Nov. 7, 1988) (citing House Report).
6
42 U.S.C. § 3604(f)(3)(B). HUD regulations pertaining to reasonable accommodations
may be found at 24 C.F.R. § 100.204.
- 2 -
make reasonable structural modifications to units and public/common areas in a dwelling when
those modifications may be necessary for a person with a disability to have full enjoyment of a
7
dwelling.
With certain limited exceptions (see response to question 2 below), the Act applies to
privately and publicly owned housing, including housing subsidized by the federal government or
rented through the use of Section 8 voucher assistance.
2. Who must comply with the Fair Housing Act’s reasonable accommodation
requirements?
Any person or entity engaging in prohibited conduct – i.e., refusing to make reasonable
accommodations in rules, policies, practices, or services, when such accommodations may be
necessary to afford a person with a disability an equal opportunity to use and enjoy a dwelling –
may be held liable unless they fall within an exception to the Act’s coverage. Courts have
applied the Act to individuals, corporations, associations and others involved in the provision of
housing and residential lending, including property owners, housing managers, homeowners and
condominium associations, lenders, real estate agents, and brokerage services. Courts have also
applied the Act to state and local governments, most often in the context of exclusionary zoning
or other land-use decisions. See e.g., City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 729
(1995); Project Life v. Glendening, 139 F. Supp. 703, 710 (D. Md. 2001), aff'd 2002 WL
th
2012545 (4
Cir. 2002). Under specific exceptions to the Fair Housing Act, the reasonable
accommodation requirements of the Act do not apply to a private individual owner who sells his
own home so long as he (1) does not own more than three single-family homes; (2) does not use
a real estate agent and does not employ any discriminatory advertising or notices; (3) has not
engaged in a similar sale of a home within a 24-month period; and (4) is not in the business of
selling or renting dwellings. The reasonable accommodation requirements of the Fair Housing
Act also do not apply to owner-occupied buildings that have four or fewer dwelling units.
3. Who qualifies as a person with a disability under the Act?
The Act defines a person with a disability to include (1) individuals with a physical or
mental impairment that substantially limits one or more major life activities; (2) individuals who
are regarded as having such an impairment; and (3) individuals with a record of such an
impairment.
The term "physical or mental impairment" includes, but is not limited to, such diseases
and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, Human
Immunodeficiency Virus infection, mental retardation, emotional illness, drug addiction (other
than addiction caused by current, illegal use of a controlled substance) and alcoholism.
7
This Statement does not address the principles relating to reasonable modifications. For
further information see the HUD regulations at 24 C.F.R. § 100.203. This statement also does
not address the additional requirements imposed on recipients of Federal financial assistance
pursuant to Section 504, as explained in the Introduction.
- 3 -
The term "substantially limits" suggests that the limitation is "significant" or "to a large
degree."
The term “major life activity” means those activities that are of central importance to
daily life, such as seeing, hearing, walking, breathing, performing manual tasks, caring for one’s
8
self, learning, and speaking.
This list of major life activities is not exhaustive. See e.g., Bragdon
v. Abbott, 524 U.S. 624, 691-92 (1998)(holding that for certain individuals reproduction is a
major life activity).
4. Does the Act protect juvenile offenders, sex offenders, persons who illegally use
controlled substances, and persons with disabilities who pose a significant danger to
others?
No, juvenile offenders and sex offenders, by virtue of that status, are not persons with
disabilities protected by the Act. Similarly, while the Act does protect persons who are
recovering from substance abuse, it does not protect persons who are currently engaging in the
9
current illegal use of controlled substances.
Additionally, the Act does not protect an individual
with a disability whose tenancy would constitute a "direct threat" to the health or safety of other
individuals or result in substantial physical damage to the property of others unless the threat can
be eliminated or significantly reduced by reasonable accommodation.
5. How can a housing provider determine if an individual poses a direct threat?
The Act does not allow for exclusion of individuals based upon fear, speculation, or
stereotype about a particular disability or persons with disabilities in general. A determination
that an individual poses a direct threat must rely on an individualized assessment that is based on
reliable objective evidence (e.g., current conduct, or a recent history of overt acts). The
assessment must consider: (1) the nature, duration, and severity of the risk of injury; (2) the
probability that injury will actually occur; and (3) whether there are any reasonable
accommodations that will eliminate the direct threat. Consequently, in evaluating a recent
history of overt acts, a provider must take into account whether the individual has received
intervening treatment or medication that has eliminated the direct threat (i.e., a significant risk of
substantial harm). In such a situation, the provider may request that the individual document
8
The Supreme Court has questioned but has not yet ruled on whether "working" is to be
considered a major life activity. See Toyota Motor Mfg, Kentucky, Inc. v. Williams, 122 S. Ct.
681, 692, 693 (2002). If it is a major activity, the Court has noted that a claimant would be
required to show an inability to work in a “broad range of jobs” rather than a specific job. See
Sutton v. United Airlines, Inc., 527 U.S. 470, 492 (1999).
9
th
See, e.g., United States v. Southern Management Corp., 955 F.2d 914, 919 (4
Cir. 1992)
(discussing exclusion in 42 U.S.C. § 3602(h) for “current, illegal use of or addiction to a
controlled substance”).
- 4 -
how the circumstances have changed so that he no longer poses a direct threat. A provider may
also obtain satisfactory assurances that the individual will not pose a direct threat during the
tenancy. The housing provider must have reliable, objective evidence that a person with a
disability poses a direct threat before excluding him from housing on that basis.
Example 1: A housing provider requires all persons applying to rent an
apartment to complete an application that includes information on the applicant’s
current place of residence. On her application to rent an apartment, a woman
notes that she currently resides in Cambridge House. The manager of the
apartment complex knows that Cambridge House is a group home for women
receiving treatment for alcoholism. Based solely on that information and his
personal belief that alcoholics are likely to cause disturbances and damage
property, the manager rejects the applicant. The rejection is unlawful because it is
based on a generalized stereotype related to a disability rather than an
individualized assessment of any threat to other persons or the property of others
based on reliable, objective evidence about the applicant’s recent past conduct.
The housing provider may not treat this applicant differently than other applicants
based on his subjective perceptions of the potential problems posed by her
alcoholism by requiring additional documents, imposing different lease terms, or
requiring a higher security deposit. However, the manager could have checked
this applicant’s references to the same extent and in the same manner as he would
have checked any other applicant’s references. If such a reference check revealed
objective evidence showing that this applicant had posed a direct threat to persons
or property in the recent past and the direct threat had not been eliminated, the
manager could then have rejected the applicant based on direct threat.
Example 2: James X, a tenant at the Shady Oaks apartment complex, is
arrested for threatening his neighbor while brandishing a baseball bat. The Shady
Oaks’ lease agreement contains a term prohibiting tenants from threatening
violence against other residents. Shady Oaks’ rental manager investigates the
incident and learns that James X threatened the other resident with physical
violence and had to be physically restrained by other neighbors to keep him from
acting on his threat. Following Shady Oaks’ standard practice of strictly enforcing
its “no threats” policy, the Shady Oaks rental manager issues James X a 30-day
notice to quit, which is the first step in the eviction process. James X's attorney
contacts Shady Oaks' rental manager and explains that James X has a psychiatric
disability that causes him to be physically violent when he stops taking his
prescribed medication. Suggesting that his client will not pose a direct threat to
others if proper safeguards are taken, the attorney requests that the rental manager
grant James X an exception to the “no threats” policy as a reasonable
accommodation based on James X’s disability. The Shady Oaks rental manager
need only grant the reasonable accommodation if James X’s attorney can provide
satisfactory assurance that James X will receive appropriate counseling and
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