Overview of the HUD Process,
Disability Discrimination
Under the FHA,
Reasonable Accommodations
&
Reasonable Modifications
Filing a Complaint: Timing
• Must be filed with HUD within 1 year after the
discriminatory housing practice has occurred or
terminated. See 42 U.S.C. §3610(a) or
• May commence a civil action in district court or
state court not later than 2 years after the
occurrence or the termination of a discriminatory
housing practice. See 42 U.S.C. §3613(a)(1)(A).
• Computation of the 2 year period shall not
include any time during which a complaint was
pending with HUD.
Filing a Complaint: Resources
• 24 C.F.R. Part 103 Fair Housing Complaint Processing.
• Toll Free Call to 1800-669-9777 or TTY 1800-927-9275
• On-line complaint form available at
http://www.hud.gov, or
• Via mail:
Office of Fair Housing and Equal Opportunity
Department of Housing and Urban Development
451 Seventh Street, S.W. Room 5204
Washington, DC 20410-2000
Complaints
• Complaints can be filed when someone has
been injured by a discriminatory housing
practice or when someone believes that they
will be injured by a discriminatory housing
practice that is about to occur.
• A narrative of what occurred should be
prepared when the complaint is filed. This is a
chance to frame the issue and put forth
essential facts.
Investigation
• Once the complaint is filed an investigation will be initiated
through the Office of Fair Housing and Equal Opportunity.
• The investigation is done impartially, and it is the purpose
to 1. obtain information regarding the events that relate to
the alleged discriminatory housing practice, 2. document
policies or practices of the Respondent/s, and 3. develop
factual data so that a determination of reasonable cause or
no reasonable cause can be made.
• The Assistant Secretary of HUD may also initiate
investigations to determine whether a complaint should be
filed. (ie, most recently in HUD v. Castillo.)
Investigation Process
• Respondents are asked to provide an answer to
the complaint.
• Respondents are able to assert defenses to the
allegations alleged in the complaint.
• HUD seeks voluntary cooperation from all
persons re: obtaining access to premises, records,
persons to take statements from to further the
investigation.
• HUD may conduct and order discovery as
provided at 24 C.F.R. Part 180, and the Asst Sec.
has the power to issue subpoenas.
Investigation Process
• The Asst. Sec. will complete the investigation
within 100 days of the filing of the complaint
UNLESS it is impracticable to do so.
• At the end of the investigation a Final
Investigative Report (“FIR”) is prepared that
contains the findings from the investigation
minus anything that must remain confidential.
• Upon completion of the investigation, the
respondents and complainants are entitled to a
copy of the FIR upon their request.
Conciliation
• Once the complaint is filed up until the filing of the charge
or dismissal, HUD will attempt conciliation of the case.
• If conciliation is successful, HUD will prepare a conciliation
agreement with the terms of the settlement.
• Types of relief include: monetary damages including
humiliation and attorney fees, equitable relief, which may
include access to services or part of the premises, and
injunctive relief, which stops the practice in question.
• discussions that are part of conciliation will remain
confidential. See 24 C.F.R. §103.330
Issuance of a Charge
• If no reasonable cause found, then HUD will
issue a no cause determination and dismiss
the complaint.
• If HUD finds that reasonable cause exists (with
concurrence from OGC), it will issue such a
determination and direct that OGC prepare a
Charge of Discrimination.
• Zoning and land use issues take a different
route.
Issuance of a Charge
• Once a charge is filed the parties have the option
to elect to federal court. See 24 C.F.R. §103.410.
(20 days within which to make an election)
• If no election is made the case will stay in the
administrative forum with a HUD attorney
representing the public interest.
– The procedures at 24 C.F.R. Part 180 will govern.
• The complainant/aggrieved persons will have the
option to intervene on their own behalf.
Issuance of a Charge
• If a party elects to federal court, HUD will
notify the DOJ to commence a civil action
under 42 U.S.C. §812.
– The DOJ will then represent the complainant or
aggrieved person on behalf of the public interest.
– Again the complainant/aggrieved person will be
able to intervene on their own behalf.
– Pros and cons of the decision whether to elect or
not will be explained to the parties by HUD.
Rocket Docket and Relief
• The Act calls for expedited discovery and hearing. See 42
U.S.C. §3612(d).
• ALJs must commence a hearing under the Act no later than
120 days following the issuance of the Charge UNLESS it is
impracticable to do so.
• The Administrative process allows for: actual damages,
injunctive or other equitable relief, and civil penalties that
are prescribed by the Act itself. See 42 U.S.C. §3612(g).
• Attorney’s Fees: Prevailing party (not U.S.) may get
reasonable attorney’s fees and costs. See 42 U.S.C.
§3612(p).
The FHA
Disability as a Protected Class
The FHA and Disability
• Comprises over 40% of the cases HUD receives.
• The 1988 Amendments Act added disability as a
protected class.
– Defined disability broadly
– Added disability to almost all the Act’s existing
provisions
– Prohibits disability related inquiries
– Adding three special provisions: modification,
accommodation and design and construction.
Definition of Disability
• A physical or mental impairment that
substantially limits one or more of a person’s
major life activities, a record of having such an
impairment, or being regarded as having such
an impairment. See 42 U.S.C. §3602(h).
– Definition does not include current illegal use of
or addiction to a controlled substance.
– Does not apply to an individual solely because
that individual is a transvestite.
Disability as a Protected Class
• Reverse discrimination suits not allowed with disability.
• 42 U.S.C. §3604(f)(1) to discriminate in the sale or
rental, or otherwise make unavailable or deny a
dwelling because of disability.
• 42 U.S.C. §3604(f)(2) to discriminate in the terms
conditions or privileges or in the provisions of services
or facilities in connection with because of disability.
– Cover not just disabled home seekers but nondisabled who
reside or are associated with people with disabilities.
– These 2 provisions are augmented by 42 U.S.C.
3604(f)(3)(A)-(C).
Reasonable
Accommodation and Modification
•
•
•
ACCOMMODATION:
to refuse to make a reasonable
accommodation to rules, policies,
practices or services, when such
accommodation may be necessary to
afford such person equal opportunity
to use and enjoy a dwelling.
See 42 U.S.C. §3604(f)(3)(B)
•
•
•
MODIFICATION:
a refusal to permit, at the expense of
the disabled person, reasonable
modifications of existing premises
occupied or to be occupied by such
person if such modification may be
necessary to afford such person full
enjoyment of the premises, except
that in the case of a rental, the
landlord may where it is reasonable
to do so condition permission for a
modification on the renter agreeing
to restore the interior of the premises
to the condition that existed before
the modification, reasonable wear
and tear excepted.
See 42 U.S.C. §3604(f)(3)(A)
Reasonable Modifications
• Request may be made at any time during the tenancy.
• Cost on the renter/tenant – maintenance issues depends.
• Housing Provider may request:
– a reasonable description of the proposed modification, and
– reasonable assurance that the work will be done in a workmanlike
manner, and
– Any required building permits will be obtained by the pwd/renter.
• In rental situation, HP may request that interior modifications be
restored minus normal wear and tear, where it is reasonable to do
so. (ie, remove grab bars=reasonable, narrow doorway= not
reasonable).
• Interest bearing escrow accounts possible on case by case basis.
Reasonable Accommodations
• Can be its own theory of liability
• Feasible, practical modifications must be
made UNLESS undue hardship, admn burden,
or fundamental alteration in the program.
• Highly fact specific requires case by case
determination
• HP may have to incur costs as long as not
unduly burdensome
Theories of Discrimination
• Direct
– Where the policy, rule or declaration is discriminatory
on its face against individuals with disabilities, do NOT
need to engage in a prima facie analysis or request
reasonable accommodation of that policy. See, U.S. v.
Rathbone Retirement Comm., et al.,3:08-cv-00174
(N.D. Ind. 2009).
• Disparate Impact
• Reasonable Accommodation
– Wisconsin Comm. Servs. v. City of Milwaukee, 413
F.3d 642, vacated, rehearing en banc granted,
reversed and remanded, 465 F.3d 737 (7th Cir. 2006).
Prima Facie Elements.
•Disabled within the meaning of the Act.
•Housing provider knew or should have known of the
disability. See, Jankowski Lee & Assoc. v. Cisneros, 91 F.3d
891, 19 A.D.D. 619 (7th Cir. 1996).
•Requested a reasonable accommodation or modification.
•Accommodation or modification was reasonable and
necessary to offer disabled person equal opportunity to
use and enjoy the dwelling. Dadian v. Village of Wilmette,
269 F.3d 831, 12 A.D. Cas. (BNA) 609 (7th Cir. 2001).
•Accommodation or Modification denied or so delayed as
to equate to denial.
CRITICAL ELEMENTS OF THE CLAIM:
•Interactive Process
See, Jankowski Lee & Assoc. v. Cisneros, 91 F.3d 891, 19 A.D.D. 619 (7th
Cir. 1996).* (some circuits)
• Necessity and Burden Shifting
Bronk v. Ineichen- 54 F.3d 425 (7th Cir. 1995) necessity-must ameliorate
in some way the effects of the disability.
ANOTHER CRITICAL ELEMENT:
•Reasonableness
burden of proof that there is a nexus between the
requested accommodation and the disability.
See argument in, Giovani v. Housing Authority of Lake County (N.D.
IL 2009), and Giebeler v. M & B Assocs., 343 F.3d 1143 (9th Cir.
2003).
Contrast to economic accommodations rejected in Salute v.
Stratford Greens Garden Apts., 136 F.3d 293 (2nd Cir. 1998),
Hemisphere v. Village of Richton Park, 171 F.3d 437, 440 (7th Cir.
1999).
Evidence of Disability
•Inquiry is permitted to the extent that it is needed to evaluate the
reasonable accommodation or modification request
•Balance the need to evaluate reasonable accommodation requests of
tenants who refuse to disclose the nature of their disabilities with
legitimate privacy issues.
Defenses
•Undue fiscal & administrative burden.
•Fundamental Alteration of the Program.
•Health & Safety-Direct threat- Housing provider is
not required to permit accommodations or
modifications that would present a direct threat to
the health and safety of others or substantial physical
damage to the property of others.
DIRECT THREAT
•A dwelling need not be made available to an individual whose tenancy would
constitute a direct threat to the health or safety of other individuals or whose tenancy
would result in substantial physical damage to the property of others. 42 U.S.C.
§3604(f)(9)
•Can’t be based on stereotypes, fears or prejudices.
•Must relate to the particular abilities of the disabled individual.
•Must be established by objective evidence. Fair Housing; Implementation of the Fair
Housing Amendments Act of 1988, 53 Fed. Reg. 44992, 45002 (1988).
•Defense is only available where the threat cannot be ameliorated by a reasonable
accommodation.
• Sometimes there’s an affirmative obligation to accommodate. Some cases have held
that a housing provider must attempt to accommodate a direct threat before evicting.
Groner v. Golden Gate Gardens Apts., 250 F.3d 1039, 2001 FED App. 0174P (6th Cir.
2001); Roe v. Sugar River Mills Assoc. 820 F. Supp. 636 (D.N.H., 1993), Roe v. Housing
Authority of the City of Boulder, 909 F. Supp. 814 (D. Colo., 1995).
New Developments of Interest
• New Administration focus on Affirmatively
Furthering Fair Housing. See 42 U.S.C.
§3608(e)(5).
• Recent DOJ settlement and HUD cases
Alphabet Soup
Cautionary Notes. Upcoming Reasonable Accommodation Reasonable Modification
problems based on new housing types.
•The plan for transformation has resulted in a number of different
housing types that didn’t exist previously.
•Many people with disabilities were vouchered out of their housing and
now live in the community, rather than in traditional public housing
units. that can be accessed by people with disablities who lose this
benefit upon moving.
• Affirmatively Furthering Fair Housing. Many communities are seeking
to reduce or eliminate the number of traditional public housing units
and project based units in their communities, primarily using funds for
vouchers.
•Tax Credits. Many communities are leveraging their financing through
state programs and tax credits. Tax credits are not considered federal
financial assistance for purposes of triggering Section 504 of the Rehab
Act.
•New HUD initiative to bring HUD funding under one process
QUESTIONS