Sensitivity, sensibility & disability: as public interest groups work to expand the scope of fair housing laws, apartment managers must reassess their responsibilities.

Owners and managers of apartment buildings often hear unusual demands: "I am sensitive to chemicals. You need to tear out all the plywood and particle board in this apartment at your expense;" "I have a sleep disorder and have to have an apartment that is double-insulated for noise;" or "You're going to have to let me bring my pet monkey. I need him to calm me down and feed me."

How should a manager respond? The answer depends on many factors. There are significant misconceptions among the general public and even among some who specialize in the field regarding the scope of federal laws governing disability-based discrimination in housing. Many of the misconceptions result from aggressive, though largely well-intentioned, efforts by agencies and interest groups to expand the requirements of the Fair Housing Act well beyond its original scope. Those efforts have enjoyed mixed success in courts around the country, ultimately resulting in standards that may be difficult to apply and that certainly vary from place to place. It's fair to say that there are no easy answers.

The 1988 Fair Housing Act Amendments (FHAA), as opposed to the earlier statutory prohibitions against discrimination on the basis of race or familial status, mandate a limited number of physical requirements regarding design of multi-unit dwellings and dictate that additional physical modifications may be required as "reasonable accommodations."

Debate About Accessibility

The physical accessibility requirements are limited in number and specifically defined in the statute. For buildings with first occupancy after March 13, 1991, and containing an elevator and four or more apartments:

* Public and common areas must be accessible to persons with wheelchairs;

* Doors and hallways must be wide enough for wheelchairs; and

* All units--including ground-floor units and those on higher levels--must have:

# An accessible route into and through the unit;

# Accessible light switches, electrical outlets, thermostats and other environmental controls;

# Reinforced bathroom walls to allow installation of grab bars; and

# Kitchens and bathrooms that can be used by people in wheelchairs.

Adding to the difficulty of understanding the FHAA is the essentially contemporaneous enactment of the 1990 Americans with Disabilities Act (ADA). The ADA covers employers, public transportation and public accommodations. Only one-third of these categories applies generally to multiple-unit housing, but the typical discussion of "disability" requirements refers to the ADA, not the FHAA, despite the ADA's narrowly circumscribed coverage in this industry.

Unfortunately, despite what appear to be straightforward provisions, substantial confusion has persisted over the four statutory accessibility requirements. First, litigation has continued regarding the failure of developers to comply with what appear to be among the clearest of these federal requirements, such as failing to put thermostats and outlets in accessible locations.

There has also been debate about the terminology of the statute, such as what areas are considered "common areas," a controversy compounded by the overlap of ADA coverage of this subject. Litigation regarding the term "common area" has included rental offices and stair landings, both of which were found to be common areas and, therefore, subject to the accessibility requirements. Debate about the accessibility of an apartment has included questions, such as whether "accessibility" includes providing parking where none is planned, whether a certain number of spaces are required or whether parking spaces should be assigned.

Owners must not only understand and comply with these accessibility requirements, but also must be aware that state and local law may provide requirements that are more specific and more rigorous than the federal law. For example, California law requires features that are more specific, such as continuous length of kitchen countertop, or assistive devices in the laundry room--not just accessibility to the laundry room--as well as mandating specific kitchen sink faucet controls and directions for mounting door bells and door locks only in approved locations. None of these requirements is addressed in the federal statute, but they, and several additional physical elements, must be incorporated in qualifying California housing.

In addition to widespread confusion about the terms actually contained in the statute, there also have been misunderstandings and unsupported expansions by commentators and advocates concerning the statute's stated requirements. For example, a recent UNITS article ("Passing the Test," October 2005) described a U.S. Department of Housing and Urban Development (HUD) study of alleged disability discrimination in Chicago housing. The article reported the study's conclusion that individuals using wheelchairs did not have the same access to housing as people not using wheelchairs, while also noting that much of Chicago's available rental housing is located in older, walk-up buildings. Thus, even though buildings that were ready for first occupancy prior to March 13, 1991, are not subject to the accessibility requirements outlined above, the article suggested a failure to comply with the FHAA, even leading to the conclusion that the testing revealed "high levels of adverse treatment."

Increased Attention to Accommodations

While expanding the scope of FHAA requirements, government agencies and public interest groups recently have given more attention to a related but separate provision of the statute: the reasonable accommodations standard. As well as defining physical accessibility requirements, the FHAA states that a violation occurs by "refusal to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy such dwelling." Therefore, even though a resident's request may not be covered by the accessibility requirements described above, such requests may need to be granted as accommodations.

An accommodation is not required simply because a resident claims that the accommodation is necessary. Instead, to qualify for a reasonable accommodation, the resident must first meet the requirement of having a "disability." This means having a physical or mental impairment that substantially limits one or more major life activities, a record of having such impairments or that one is regarded as having such impairments. Additionally, "disabilities" that may be a threat to the safety of others, such as illegal drug use, even if they are being treated, may not need to be accommodated.

Once a resident establishes a disability and proposes an accommodation, the owner must grant the accommodation if it is not an "undue burden." Thus, an owner may conditionally approve the accommodation provided that the modification complies with building codes and with the agreement that the resident leave the apartment in a condition acceptable to a later resident who does not need the modification. As with the ADA, a prudent owner will engage in an "interactive process," which is a well-documented effort to reach a resolution without further contention.

One explanation for the increased attention to accommodations is the language of the accessibility provisions of the statute. The terms used suggest that the "accessibility" standards were designed to address the needs of individuals with physical disabilities--primarily individuals using wheelchairs. Perhaps because of these specific guidelines, the focus of legal and public interest efforts has moved away from the issues of wheelchair accessibility contemplated by the statute and instead toward other types of disability that are not specifically addressed.

Many organizations are dedicated to increasing awareness regarding specific types of disabilities and to increasing the types of accommodations available. For example, accommodations for individuals with hearing impairments have received significant attention, including a recent UNITS article ("Reaching Out to Prospects with Hearing Impairment," October 2005). The HUD study described previously also tested TTY telephone devices, which allow individuals who are hearing-impaired to place telephone calls by typing statements that are relayed by an operator to the recipient of the phone call. The study concluded that approximately 25 percent of the time, TTY callers were unable to make contact because of refusals by the housing provider to communicate through the device. The repeated refusal of a rental office to communicate with a TTY operator was also the subject of litigation in New York.

The use of service animals for individuals with hearing impairments also has been a frequently requested accommodation. Even where lights or other communication signals are provided, in some cases animals have been found to be superior accommodations for individuals with hearing impairments. Not only are service animals often permitted despite "no pet" policies, but pet fees are not required for residents with service animals. Service animals have also become more frequently used as an accommodation to assist as "emotional support animals" for individuals with mental disabilities.

While these requests have been made and often granted, remember that these decisions represent accommodations and are subject to examination in each case to determine whether they are an undue burden. First, not every animal can be considered a "service animal." (See UNITS, "The Truth About Companion Animals," April 2005.) Some--but not all--courts have held that when animals do not have special training, they are indistinguishable from "pets" and therefore are not considered reasonable accommodations.

Additionally, where other accommodations are less burdensome for the owner, the owner is not required to permit an animal in violation of its "no pets" policy. For example, one court found that although an individual felt unsafe in his apartment building, his generalized fear for his safety was not reasonably accommodated by an animal without special training. Finally, not all animal species may be kept in certain dwellings--animals other than dogs or cats may violate local ordinances.

In addition to these broadened uses of typically used accommodations, courts have expanded the reasonable accommodations provision of the FHAA to apply to evictions, even to residents who may be a "direct threat." Some courts have required owners to establish that there was no reasonable accommodation short of eviction that would address the risk to other residents.

It is important to remember that while these accommodations are often determined to be reasonable, different federal courts provide different standards for examining reasonable accommodations claims. Some courts require a plaintiff to present medical evidence of a disability, while others do not require the plaintiff to prove a disability unless challenged. Regarding accommodations, some courts assume that the accommodation is reasonable on the surface, and the owner then must prove it is unreasonable. In others, the burden is entirely on the plaintiff to demonstrate both the reasonableness and necessity of the proposed accommodation.

The practical effect of these differing standards is that the information required of a resident regarding his or her disability and proposed accommodation may vary from place to place, and the needed accommodations are based on the facts of each case. Because of the individualized nature of the accommodations question, it may take time for owners to respond to these questions.

Guidelines published by various public interest organizations should be reviewed carefully. While they may provide valuable assistance, it is not possible to determine that any accommodation is "always" required, any more than it is to say that any particular limitation is a "disability" or "handicap." And left totally open is the applicability of the FHAA, as well as the public accommodations portion of the ADA, to limitations that are not physical. In the employment arena, mental and emotional disabilities are a common subject of litigation. If the rental housing industry is ever forced to face similar claims regarding apartment communities, the parade of lawsuits could be lengthy, complex and ultimately expensive indeed.

In this area, in which off-the-shelf answers are hard to find, the advice of a specialist may be the best defense against costly and time-consuming litigation.

Charles Edwards is a Raleigh, N. C. -based member of Womble Carlyle Sandridge & Rice PLLC and the Practice Group Leader of the firm's Labor and Employment practice group. Theresa Sprain is a Raleigh-based associate in the Labor and Employment practice group.