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Fair Housing for Persons with Disabilities

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Lyonel LaGrone, Jr. Metro Fair Housing Services, Inc. Metro Fair Housing Services, Inc. Atlanta, GA (404) 524-0000 – PowerPoint PPT presentation

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Title: Fair Housing for Persons with Disabilities


1
Fair Housing for Persons with Disabilities
  • Lyonel LaGrone, Jr.
  • Metro Fair Housing Services, Inc.

2
Metro Fair Housing Services, Inc.
  • Founded in 1974
  • Private, not-for-profit, fair housing
    organization whose primary purpose is to prevent
    housing discrimination in the metropolitan
    Atlanta area and throughout the state of Georgia.
  • Mission To promote social justice and eliminate
    housing and lending inequities for all people,
    including those with disabilities, through
    leadership, education and outreach, public policy
    advocacy and enforcement.

3
What is a disability?
  • Similar definitions under the Act, 504 and ADA
  • A physical or mental impairment that
    substantially limits one or more major life
    activities, like walking, breathing, seeing,
    hearing, speaking, learning..
  • Having a history of such impairment
  • Being perceived as having such an impairment
  • Being associated with someone with such an
    impairment
  • CAUTION THIS IS NOT THE SAME AS THE DEFINITION
    OF DISABILITY FOR PROGRAM ELIGIBILITY PURPOSES
  • (i.e. must have AIDS or a related disease to
    qualify for HOPWA)

4
Three Key Laws Relating to Discrimination Based
on Disability
  • Fair Housing Act (the Act)
  • Applies to virtually all housing
  • Section 504 of the 1973 Rehabilitation Act
    (Section 504)
  • Applies to recipients of federal financial
    assistance
  • HUD has comprehensive regulations addressing HUD
    funded housing
  • Does NOT apply to landlords who receive only
    Section 8 certificate or Voucher funds
  • The Americans with Disabilities Act (ADA)
  • Title II applies to housing operated by state or
    local governments and is very similar to Sec. 504
  • Title III applies to places that serve the
    general public, which includes rental offices,
    but not the housing itself

5
Definition of Disability
  • This protection does not include
  • Current illegal drug users
  • Juvenile offenders, sex offenders or
    transvestites
  • Persons convicted of the illegal manufacture or
    distribution of a controlled substance

6
Types of Discrimination
  • Overt
  • Blatant unfair treatment of someone
  • because of their membership in a protected
  • class.
  • Disparate Treatment
  • Disparate Impact

7
Reasonable Accommodations
  • Under disability laws, reasonable accommodations
    must be made at the expense of the
    landlord/housing provider
  • Fair Housing Act
  • Changes in rules, policies, practices, or
    practices or services that are necessary for a
    person to use and enjoy housing

8
Reasonable Accommodations
  • Section 504
  • Changes to rules or policies AND structural
    changes that are necessary for a person with a
    disability to use and enjoy housing

9
Basic Principles of Reasonable Accommodations
  • Need and request are based on a persons
    disability
  • Housing provider must be aware of disability
  • If obvious disability, housing provider cannot
    ask for confirmation, medical or otherwise. This
    is a specific violation
  • If not an obvious disability, or if housing
    provider questions disability, housing provider
    may ask for back up
  • Examine forms, if a housing provider uses one.
    Sometimes the inquiry goes to far by asking the
    nature or severity of the disability or whether
    the complainant is capable of living
    independently. This is a separate violation
  • There may be HIPAA violations if housing provider
    contacts health care provider without a release

10
What makes a reasonable accommodation requirement
arise?
  1. A person has a disability within the meaning of
    the law
  2. The housing provider knows, or should know, of
    the nature of the disability
  3. An accommodation is needed for the person to
    benefit from the housing
  4. The housing provider knows, or should know, of
    the need for the accommodation

11
When do accommodations have to be made?
  • The requested accommodation must be made if they
    are reasonable
  • The requested accommodations must be acted upon
    within a reasonable time, because the delay may
    amount to denial of the accommodation

12
What is the process for requesting Reasonable
Accommodations?
  • There is no specific or required process for
    making a reasonable accommodation request
  • Accommodation request can be made verbally or in
    writing
  • An accommodation request doesnt have to be
    called a request for a reasonable accommodation
  • There is an obligation to make an accommodation
    even when one is not actually requested if the
    need is apparent
  • Cannot ask for confirmation of disability or of
    need for the accommodation if disability/need for
    accommodation is obvious

13
When is a request for an Accommodation
Unreasonable?
  • A request for a reasonable accommodation may be
    rejected if it is unreasonable
  • The test under both the fair Housing Act and
    Section 504 is whether the accommodation would
    pose an undue financial and administrative burden
    OR
  • The accommodation would fundamentally alter the
    nature of the program (the way you do business)

14
Necessary and Reasonable
  • To show that a requested accommodation may be
    necessary, there should be an identifiable
    relationship or nexus between the requested
    accommodation and the individuals disability
  • An accommodation will not be considered
    reasonable if it constitutes a fundamental
    alteration of the providers program, or an undue
    financial and administrative burden

15
Undue Burden
  • Financial resources of the provider
  • Cost of the reasonable accommodation
  • Benefits to the requesting applicant/resident
  • Availability of other, less expensive alternative
    accommodations that would effectively meet the
    applicant/residents disability-related needs
    must be considered

16
What about invisible disabilities?
  • If a landlord is skeptical of a tenants alleged
    disability or the landlords ability to provide
    an accommodation, it is incumbent upon the
    landlord to request documentation or open a
    dialogue. Jankowski Lee and Associates
    v.Cisneros, 91 F. 3rd 891 (7th Cir. 1996)

17
Equality of Treatment
  • People with disabilities cannot be treated
    adversely because they are disabled
  • Differences in treatment must be justified by one
    or more legitimate, non-discriminatory reasons
  • CAUTION NOTHING IN THE FAIR HOUSING ACT REQUIRES
    THAT HOUSING BE MADE AVAILABLE TO A PERSON WHOSE
    TENANCY WOULD CONSTITUTE A DIRECT THREAT TO THE
    HEALTH OR SAFETY OF OTHERS OR WHOSE TENANCY WOULD
    RESULT IN SUBSTANTIAL PHYSICAL DAMAGE TO THE
    PROPERTY OF OTHERS
  • This does not include a situation where the
    circumstances of threat can be ameliorated by a
    reasonable accommodation

18
Direct Threat
  • Cant Exclude individuals based upon fear,
    speculation, or stereotype about a particular
    disability or persons with disabilities in
    general
  • Must rely on an individual assessment that is
    based on reliable objective evidence (e.g.
    current conduct, or a recent history of overt
    acts)

19
Direct Threat
  • The assessment must consider
  • The nature, duration, and severity of the risk of
    injury
  • The probability that injury will actually occur
  • Whether there are any reasonable accommodations
    that ill eliminate the direct threat

20
Diagnoses is not important
  • Unlike program eligibility, the name of the
    disability does not matter nor does the source of
    income it is how the disability, whatever type,
    affects a persons ability to go about daily life
    activities
  • For this reason, asking the label of the
    disability is not necessary
  • The nature of the disability does not normally
    have to be disclosed

21
Assisting Clients
  • A client must need an accommodation because of
    her disability
  • Interview the client about her need for the
    specific accommodation
  • How will the accommodation help you?
  • Have you considered other accommodations?
  • Why do you need this particular accommodation?
  • Does the housing provider know that you need this
    accommodation and do they know it is because you
    are disabled?

22
Assisting Clients
  • How does the disability affect daily life
    activities? Questions should be geared to the
    type of accommodation being requested
  • Affect ability to walk long distances?
  • Climbing steps?
  • Stay in your unit alone?
  • Take care of yourself?
  • Remember how to do routine activities?
  • Ask how long this has been occurring
  • Ask for examples of concerns
  • Are there witnesses who have observed the day to
    day affects of the disability?
  • And does the housing provider know you have a
    disability? Who did you talk to? To whom did you
    give specifics?

23
Is there a response to the request? If yes,
evaluate it.
  • Was the response timely or was there no response?
    Delay may be the same as denial. see e.g. HUD v.
    Ocean Sands
  • Did the response address the requested
    accommodation, or was it more like lets make a
    deal? The housing provider must grant the
    request accommodation unless it would be undue
    financial and administrative hardship or a
    fundamental alteration of the program. see e.g.
    United States v. Freer, 864 F. Supp. 324
    (W.D.N.Y. 1994)
  • Review the alternative proposed. What does the
    client think of it? If an alternate
    accommodation is offered, why wont it work?
  • What would be the burden on the housing provider
    if the accommodation were made? Is there a cost
    burden? An administrative burden? Would it have
    fundamentally changed the operations?
  • Did the housing provider impose any fees or
    conditions or requirements on the accommodation?
    That is a separate violation.

24
Resources
  • www.hud.gov
  • www.metrofairhousing.com
  • www.gceo.state.ga.us
  • www.consumerfinance.gov
  • www.nationalfairhousing.org
  • www.justice.gov

25
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