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Fair Housing for Persons with Disabilities

Lyonel LaGrone, Jr. Metro Fair Housing Services, Inc. Fair Housing for Persons with Disabilities. Metro Fair Housing Services, Inc. Founded in 1974

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Fair Housing for Persons with Disabilities

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  1. Lyonel LaGrone, Jr. Metro Fair Housing Services, Inc. Fair Housing for Persons with Disabilities Metro Fair Housing Services, Inc. Atlanta, GA (404) 524-0000

  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. Metro Fair Housing Services, Inc. Atlanta, GA (404) 524-0000

  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) Metro Fair Housing Services, Inc. Atlanta, GA (404) 524-0000

  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 Metro Fair Housing Services, Inc. Atlanta, GA (404) 524-0000

  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 Metro Fair Housing Services, Inc. Atlanta, GA (404) 524-0000

  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 Metro Fair Housing Services, Inc. Atlanta, GA (404) 524-0000

  9. Basic Principles of Reasonable Accommodations • Need and request are based on a person’s 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 Metro Fair Housing Services, Inc. Atlanta, GA (404) 524-0000

  10. What makes a reasonable accommodation requirement arise? • A person has a disability within the meaning of the law • The housing provider knows, or should know, of the nature of the disability • An accommodation is needed for the person to benefit from the housing • The housing provider knows, or should know, of the need for the accommodation Metro Fair Housing Services, Inc. Atlanta, GA (404) 524-0000

  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 Metro Fair Housing Services, Inc. Atlanta, GA (404) 524-0000

  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 doesn’t 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 Metro Fair Housing Services, Inc. Atlanta, GA (404) 524-0000

  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) Metro Fair Housing Services, Inc. Atlanta, GA (404) 524-0000

  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 individual’s disability • An accommodation will not be considered reasonable if it constitutes a fundamental alteration of the provider’s 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/resident’s disability-related needs must be considered

  16. What about invisible disabilities? • “If a landlord is skeptical of a tenant’s alleged disability or the landlord’s 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) Metro Fair Housing Services, Inc. Atlanta, GA (404) 524-0000

  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 Metro Fair Housing Services, Inc. Atlanta, GA (404) 524-0000

  18. Direct Threat • Can’t 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 person’s 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 Metro Fair Housing Services, Inc. Atlanta, GA (404) 524-0000

  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? Metro Fair Housing Services, Inc. Atlanta, GA (404) 524-0000

  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? Metro Fair Housing Services, Inc. Atlanta, GA (404) 524-0000

  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 “let’s 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. Metro Fair Housing Services, Inc. Atlanta, GA (404) 524-0000

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

  25. Q & A Metro Fair Housing Services, Inc. Atlanta, GA (404) 524-0000

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