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Disabilities, Protected Class

The Fair Housing Act, along with The Rehabilitation Act of 1973 and The American Disabilities Act, say that, with regards to housing, persons with disabilities cannot be discriminated against because of a disability. A disability would include any physical or mental impairment that substantially limits one or more of life's daily activities. Some examples of a life activity that could be impaired would be walking, seeing, and hearing, etc. Housing discrimination also applies to those individuals who have a history of impairment or are perceived as having an impairment. (Note: Disability does not include currently using or having an addiction to illegal drugs.)

Persons with disabilities cannot be treated less favorably to those individuals without disabilities. Treatment includes making reasonable accommodations and reasonable modifications. Reasonable accommodations would be making an exception to a rule to accommodate someone. An example would be if an apartment complex had a "first come, first served" parking policy but a tenant has a disability that prevents him from walking long distances. In this case the landlord would need to make an exception to the parking policy so that he could accommodate this tenant. A reasonable modification is a change to a physical element of a dwelling. An example would be if someone who used a wheelchair needed wider doorways and asked the landlord if the doorways could be widened at the tenant's own expense. The landlord would need to allow this modification so that the tenant could have full use of the living space. (Note: sometimes the tenant may need to restore the interior living space back to its original state depending on the modification when they leave.) Additionally, persons with disabilities may not have conditions placed on their residency. An example would be if someone had a service dog and the landlord required them to make a pet deposit or pay an additional fee each month for the animal.

Often times in housing situations potential buyers/renters will be asked if they are able to live independently. This type of questioning is unacceptable under the law. Buyers/renters should only be asked normal questions such as if the tenant can afford rent, if they can comply with residential rules, if they will cause damage to the unit and whether or not they will pose an immediate threat to others or property. Independent living should not be a concern, having family or a caregiver assist with the tenants living would be the same as having a cleaning service come into clean one's home. However, it is ok for a landlord to ask if the person has ever been convicted of manufacturing or distributing illegal drugs. The landlord may also ask if the person is a current user or abuser of illegal drugs. A disabled person may be turned away for one or more non-discriminatory reasons or if the tenant will be a threat to other tenants.

Denying housing for group homes use is also prohibited. This issue often deals with zoning issues. State or local governments cannot zone to discriminate against persons with disabilities who want to live in group homes. If someone is trying to obtain a permit to build a group home for persons with disabilities, sometimes city zoning will deny the permit. A 2001 case relating to zoning for group home is United States v. City of Chicago Heights. The City of Chicago Heights had revised their zoning code with regards to group homes in December of 1998. The previous version stated that group homes could not be located 1000 feet away from another group home unless a permit was obtained. The revised zoning code stated that a group home could only be located where zoning codes allowed it. The United Stated, on behalf of Thresholds (a corporation that wanted to have a group home but was denied a permit), alleged a violation of the Fair Housing Act because the new zoning code failed to accommodate group homes. The court granted a partial summary judgment on behalf of the United States. The court found that the city failed to reasonably accommodate Thresholds by denying them a permit to build and enjoined the City from stopping construction of the group home. The court also found that portions of the new zoning code were facially discriminatory and enjoined the city from using those provisions. The City of Chicago Heights agreed to pay Thresholds, Inc. $122,878.00 in a settlement. The City also amended their December 1998 zoning code to their previous zoning code. [Resources -- see Department of Justice (DOJ) webpage http://www.justice.gov/crt/about/hce/final8_1.php]

The Fair Housing Act
The federal Fair Housing Act is the broadest of the three laws that cover fair housing with regard to people with disabilities. It provides for dwellings, which basically consist of any place that is intended to be occupied by someone as their residence. No one can discriminate against someone who is trying to buy or rent a dwelling because they have a disability or someone associated with them has a disability. Anyone associated with the resident should be able to have full enjoyment of the dwelling as well. An example of "being associated with a person with a disability" might be if a tenant's son brought groceries over once a week and he had difficulty walking long distances. The tenant's unit is far from any accessible parking. The landlord would need to accommodate the son if the tenant requested a parking space. [Resources - see HUD/DOJ Joint Memorandum on Reasonable Accommodations, www.bazelon.org for sample reasonable accommodation request letters]. Also a tenant may request a reasonable modification at their own expense. [Resources -- see HUD/DOJ Joint Memorandum on Reasonable Modifications]. Persons seeking information and/or assistance with a request for reasonable accommodation or modification may contact HOPE Fair Housing Center.

The Act also says that any buildings that have 4 or more units need to be built with certain accessibility features, if built after 1991. For elevator buildings, all units must meet these accessibility requirements. For non-elevator buildings, all ground floor units must be accessible. Accessibility would include:

  • Accessible building entrance on an accessible route
  • Accessible public and common use areas
  • Usable doors
  • Accessible route into and through covered units
  • Light switches and other environmental controls in accessible locations
  • Reinforcements in walls for grab bars
  • Usable kitchens and bathrooms

[Resources -- see www.fairhousingfirst.org ]

Section 504 of the Rehabilitation Act of 1973
This Act states that programs federally funded or programs made by the United States Department of Housing and Urban Development need to be made accessible to persons with disabilities. Any program receiving federal funding must make a reasonable attempt to accommodate persons with disabilities at no cost to them. If the request for accommodation or modification is an undue financial and administrative burden, an alternative option should be made available. [Resources -- see HUD's website page dedicated to Section 504 questions at http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/disabilities/sect504 ]

The Act also implemented requirements for new construction built after 1988. This requires that all multi-family projects have at least 5% of units fully accessible to persons with mobility impairments and 2% of units fully accessible to persons with visual and hearing impairments.

The Act also regulates substantial alterations of projects. If a federally funded housing project with 15 of more units is undergoing an alteration that that will cost 75% or more of the replacement cost of the building then accessibility requirements must be met. The alteration accessible requirements are the same as new construction requirements, 5% of units need to be fully accessible to person with mobility impairments and 2% of units need to be fully accessible to persons with visual and hearing impairments.

The American's with Disabilities Act
The American's with Disabilities Act has two sections relevant to housing, one section covers private entities and the other covers public entities. Public entities include state and local governments and any of its departments. Private entities that are covered under the act are any private places that offer public accommodations. In housing, that would include areas such as leasing offices and public parking.






"Shut Out, Priced Out and Segregated: The Need for Fair Housing for People With Disabilities: A Public Policy Report and Recommendations.
This report examines the barriers people with disabilities face in housing and offers recommendations for improving the stock of accessible housing. The report was produced by Metro Fair Housing Services, Inc. with major support from A.G. Spanos Companies, one of the largest builders of multi-family housing in the nation, as part of a settlement with NFHA, Metro Fair Housing Services, Inc. and other plaintiffs. The report focuses on the state of Georgia, but most of its findings are relevant to communities throughout the nation. Please use this resource to advance the work of fair housing for people with disabilities." View report.