lael robertson supervising attorney mid-minnesota legal aid what is reasonable? – reasonable...

Lael Robertson Supervising Attorney Mid-Minnesota Legal Aid

What is Reasonable? – Reasonable Accommodations in Housing Law

Mid-Minnesota Legal Aid – Housing Discrimination Law Project

Enforce low income clients’ fair housing rights

Includes right to reasonable accommodations

Disability Laws

Americans with Disabilities Act (ADA)

Minnesota Human Rights Act (MHRA)

Rehabilitation Act Fair Housing Act

(FHA)

Individual must have a “disability” or have a relationship or association with an individual with a “disability.”

Definition of “Disability” (42 U.S.C. § 12102)◦A person who has a physical or mental

impairment that “substantially limits” one or more “major life activities.” Major life activity include seeing, hearing, eating,

sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading.

“Disability” Definition from ADA

Definition, Cont’d“Disability” also includes:

◦A person who has a history or record of such an impairment.

◦A person who is perceived by others as having such an impairment.

Note – persons who are perceived to have a disability are not entitled to reasonable accommodations!

ADA Amendments of 2008

Intended to overturn case law that restricted the application of the ADA.

Impairment does not need to “prevent or severely or significantly restrict” a major life activity to be considered “substantially limiting.”

Mitigating measures (except glasses) have no bearing in determining “disability”

An episodic impairment = disability if:◦when active, substantially limits a major life

activity.

Fair Housing Act - 1968

Unlawful to take adverse action in housing based on protected class status.

Reasonable Accommodations - FHA

Housing provider is required to make change in rules, policies, practices or services IF:◦ Accommodation may be

necessary to give disabled person equal use and enjoyment of dwelling

AND◦ The change is not

unreasonable

Must Have Disability

Accommodation may be necessary for use and enjoyment of dwelling

Accommodation is related to disability or disability-related need (nexus)

Accommodation is reasonable

Reasonable Accommodations – 4 Step Analysis

“Unreasonable” RequestsImpose an undue financial or

administrative burden; OR

Require a fundamental alteration in the nature of the housing provider’s operations

RA ExamplesAt admission:

◦Waiver of no pets policy (no deposit allowed!)

◦Rent due on the 3rd instead of the 1st (for SSA payments)

◦Section 8/Public Housing – additional time to fill out paperwork

During Tenancy:◦Parking Space

At Termination:◦“Second bite at the apple” – retract

termination

Protected or Not Protected?

Resident with a dog

Protected or Not Protected?

Service Dogs

Protected or Not Protected?

Animals for Emotional Support?

Specific Cases: Service Animals

Allowing service animals is considered a “reasonable modification”

“Service Animal” has a specific definition under the ADA◦Only dogs and miniature horses ◦This is different than FHA!

In 2010, DOJ published specific regulations regarding the use service animals. ◦28 C.F.R. § 35.136; 28 C.F.R. §36.302(c))

Law is very specific in this area

Must Have Disability

Accommodation may be necessary for use and enjoyment of dwelling

Accommodation is related to disability or disability-related need (nexus)

Accommodation is reasonable

Reasonable Accommodations – 4 Step Analysis

Protected or Not Protected?

Resident with multiple dogs

Protected or Not Protected? Other Animals?

Must Have Disability

Accommodation may be necessary for use and enjoyment of dwelling

Accommodation is related to disability or disability-related need (nexus)

Accommodation is reasonable

Reasonable Accommodations – 4 Step Analysis

Even a client with a disability must remain lease compliant

Even a client with a reasonable accommodation (e.g., companion animal) must remain lease compliant

RAs at this stage – practically speaking – must have the potential of being effective

Reasonable Accommodations - Termination

Tips for success with RAs at termination:Specific Reasonable Accommodation PlanEarlier the better – particularly in the public

housing/Section 8 processAsk for it – any time! RAs are available at

admittance, during tenancy, and any time up until eviction.

Push back if there are unreasonable burdens attached – ◦ Fees, “deposits”◦ Liability Insurance

Know your resources – social workers, mental health workers, service providers

Be creative

Defenses to Reasonable Accommodation RequestsStanding Undue BurdenFundamentally AlterReasonablenessDirect Threat

Direct Threat ExceptionNothing in this subsection

requires that a dwelling 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. ◦ BUT – See Roe v. Sugar

River Mills &Cornwell v. Moore, 2000 WL 18887528 (2000)

Reasonable ModificationsStructural changes to existing

premises occupied or to be occupied by a person with a disability if:◦ such modifications may be

necessary to afford such person full enjoyment of the premises and

◦It’s not unreasonable

Modification Examples

Grab bars in the bathroom

Widening doorwaysLowering kitchen

cabinetsSwitching out carpet for

flooring

Who pays for the modification?Housing Providers have to allow

reasonable modifications, but tenants have to pay for them

Exception – if the building receives federal funds, then the housing provider must pay.

Where can I ask for a modification?NOT limited to the interior of a

dwelling.Public and common use areas,

too ◦Fitness centers

Exteriors of dwelling units ◦Entrances◦Garage areas

Do modifications have to be removed?Interior:

◦only where “it is reasonable to do so” and ◦where the housing provider has requested

the restoration. If the modifications do not affect use or

enjoyment of the premises, the tenant cannot be required to restore.

If required to restore, tenant must pay.◦Housing Provider may require an escrow.

Restoration, Cont’dExterior:

◦Tenant is NOT required to restore.

Accommodation/Modification vs. Design Standards FHA has accessibility

requirements of private landlords for newer buildings.◦www.fairhousingfirst.org

These are not accommodations – they are the law!◦Failure to comply is a separate legal

action.

Strategies and Tips

Strategic ConsiderationsWhen to ask for an

accommodationAlways in writing – even though it

doesn’t have to be.Client’s perspective on their

disabilityOther considerations –

◦Availability (i.e., apartments)◦Other accommodations that could

work

How do I get a Reasonable Accommodation?First Thing: ASK!

◦An individual should put his or her request in writing, and ask for a written response.

◦Request should be as specific as possible. ◦Housing Providers and Employers CANNOT

guess!If the opposing party says no:

◦ In the employment context, the “interactive process” is required. (29 C.F.R. § 1630.2(o)(3))

◦ Interactive process NOT required in housing.If they say no . . . .

ExamplesLetter Examples –

◦Reasonable accommodation request◦Medical provider support◦Exception to policies at admission

Enforcement OptionsDemand lettersNegotiated settlementsComplaints to HUD, MDHR, or a local agencyFederal or State Court

SHORT Statute Of LimitationsAdministrative Complaints

◦One year from date of last discriminatory incident

Court Complaints◦Claims under the FHA – 2 years◦Claims under the MHRA – 1 year

Filing with an administrative agency tolls the respective jurisdiction’s SOL

Useful Links http://www.ada.gov

◦Department of Justice’s ADA Homepage

◦Includes links to statute, ADA standards, brochures produced by the DOJ and other useful information

http://www.humanrights.state.mn.us◦Department of Human Rights website◦Includes form to start complaint

process

Useful Links (cont.) http://www.hud.gov/fhcomplaints

◦Department of Housing and Urban Development website

◦Includes electronic complaint filing form http://www.mylegalaid.org

◦MMLA Homepage ◦Includes online intake form

www.fairhousingmn.org◦Fair Housing materials, including HUD

guidance.

Contact Info Minnesota Disability Law

Center & Mid-Minnesota Legal Aid Intake Line ◦612-334-5970

Lael Robertson, Supervising Attorney, HDLP

612-746-3834lerobertson@mylegalaid.

org

Questions or Comments?