Frequent readers of this blog know that the Fair Housing Act exists in large part to prohibit discrimination against individuals based on their physical appearance (race, gender, national origin, etc.).  However, did you know that you cannot discriminate against assistance animals based on appearance either?  A recent charge by the Department of Housing and Urban Development (HUD) accused one landlord of doing just that.

The landlord found itself in the doghouse with HUD after denying a resident the right to keep his assistance animal at the apartment complex.  The resident, a veteran who served tours in both Iraq and Afghanistan, submitted a request to allow his assistance animal—a Great Dane/Labrador Retriever mix—at the property.  Not only did the landlord deny the request (which included proper documentation both for the animal and the resident’s disability) they went so far as to “strongly suggest you consider a cat for your service animal” (Spoiler alert- dog lovers are not the only ones who took offense to this gross injustice).  When the resident refused to adopt a new assistance animal that fell within the 12 pound weight limit, the landlord filed an eviction action against the resident.  Although the eviction charge was dropped, the resident suffered “physical and emotional distress, inconvenience and frustration” and left the apartment complex shortly thereafter.

In response, HUD found cause against the landlord for three distinct violations of the Fair Housing Act: 1) making housing unavailable when they sought to evict the resident for his assistance animal; 2) refusing to afford an accommodation necessary for equal enjoyment and use of the dwelling; and 3) enforcing “arbitrary, unnecessary, and unlawful restrictions on the weight and type of support animal.”

So what’s the bottom line?  That it’s futile to try to convert a dog lover?  That cats are superior assistance animals?  While HUD did not definitively opine on the great dog versus cat debate, they did make clear that landlords are explicitly prohibited from excluding assistance animals based on breed and/or weight restrictions.  Bottom line, whether you are a cat lover or a dog lover, all assistance animals with a clear nexus to the resident’s disability must be allowed as a reasonable accommodation (provided that proper documentation is submitted).  Failure to do so could put you in the doghouse too.

The Department of Housing and Urban Development (HUD) released a report on Tuesday, September 5th that really struck me.  The report revealed the findings of a pilot study on rental housing discrimination on the basis of mental disabilities.  As most readers of this blog know, I devote a substantial amount of space discussing disability discrimination under the Fair Housing Act.  And for good reason, apparently, given that HUD’s recent report identified that persons with disabilities—specifically mental disabilities—received fewer responses to their rental inquiries, were informed of fewer available units and were less likely to be invited to contact the housing provider when compared to people without mental disabilities.

In addition, the report also focused on another topic I have devoted a significant amount of time on—reasonable accommodations—finding that a significant number of people with mental disabilities were given a negative response to their request.  Interestingly enough, HUD’s study also found that a higher percentage of housing providers were willing to grant accommodation requests to people with intellectual or developmental disabilities than to people with mental illness.

So what’s the bottom line?  The findings of HUD’s study really reveal that there is still an underlying stigma against residents and prospects with mental disabilities.  As a property manager or landlord, you need to have policies in place to ensure that all prospects and residents are treated equally.  With regard to handling reasonable accommodation requests, you must have strong policies in place, and I would recommend that you set up a centralized processing system for reviewing and responding to accommodation and modification requests.  Not only because it is the right thing to do, but also because HUD has given strong indicators that it will be focusing its testing efforts on disability discrimination in the immediate future.

In my previous post, I discussed the Department of Housing and Urban Development’s (HUD) prohibition on sexual harassment.  Although it seems patently obvious that no landlord should be sexually harassing his or her residents, apparently some people remain oblivious. And as a recent settlement by the Department of Justice (DOJ, the government organization that prosecutes housing discrimination claims in court) reveals, HUD and the DOJ take sexual harassment very seriously.

On July 10, 2017, the DOJ announced that it reached a $600,000 (!) settlement with the owners and former managers of more than 70 residential properties in the Morganton, West Virginia area.  The settlement was in resolution of allegations that the property manager sexually harassed both female residents and prospective residents.  In addition to the $600,000 (!) in damages and civil penalties, the offending property manager had to transfer his ownership shares in these properties and relinquish his role in their management.  The property manager at issue here was also enjoined from engaging in any property management, rental management, or maintenance responsibilities at the rental properties, as well as from entering the premises or having any contact with current or former residents of the rental property.

This settlement amount is significantly higher than a typical fair housing case—however, the conduct by the property manager was particularly repugnant.  The matter began when four female residents filed fair housing complaints with HUD, alleging sexual harassment against the property manager.  During the course of its investigation, HUD determined that there was reasonable cause to believe that the property manager sexually harassed multiple female residents and prospective residents over a nine year period, including inappropriate touching and groping, conditioning tangible housing benefits to female tenants in exchange for performance of a sex act (quintessential quid pro quo harassment), making unwanted sexual comments and advances, entering the homes of female residents without permission to sexually harass them, and taking or threatening to take adverse action against female tenants when they refused or objected to his sexual advances.  As Acting Assistant General Tom Wheeler of the DOJ’s Civil Rights Division aptly stated, “[i]t is unacceptable that a woman should have to endure sexual harassment by her landlord in her own home,” and, accordingly, this settlement was intended to “send[] a strong message that the Civil Rights Division will aggressively pursue those who engage in this egregious conduct.”

So what’s the bottom line?  I cannot say this enough—as a property management company or owner, you need to have strong policies and training programs in place to prevent harassment, and you have to act promptly and proactively to end harassment whenever and wherever it occurs.

In my last post, I discussed the Department of Housing and Urban Development’s (“HUD”) Rule 100.600 (the “Rule”), published by HUD last September.  In the post, I focused on that Rule’s prohibition of hostile environment harassment, and in my humble opinion, I believe that aspect of the Rule created a standard of liability that may come as a surprise to many landlords.  The Rule also contained another important aspect, prohibition quid pro quo harassment, which I will focus on in this post.

So what is quid pro quo harassment?  The official definition per HUD Rule Section 100.600(A)(1) is an “unwelcome request or demand to engage in conduct where submission to the request or demand, either explicitly or implicitly, is made a condition related to: The sale, rental or availability of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision of services or facilities in connection therewith; or the availability, terms, or conditions of a residential real estate-related transaction.”  And what does that mean in plain English?  Essentially, as a landlord, you cannot condition the availability of any of your normal services, practices, or policies—or the availability or rental terms of the unit itself—on the resident or prospect engaging in certain conduct.  As a couple of obvious examples, you (or your employees) cannot condition a maintenance request on a resident performing sexual favors, nor can you condition the availability of an apartment on a prospect performing sexual favors.

Similarly to hostile environment harassment, as a landlord you need to ensure that you and your employees are not engaging in any type of quid pro quo harassment.  Common sense, right?  But you also need to make sure that your residents are not engaging in this type of behavior, because you (as a landlord) can be directly liable if you know (or should have known) of the harassment and fail to take prompt action to stop it.

So what’s the bottom line?  Well, this part of HUD Rule 100.600 seems pretty intuitive, and I feel pretty confident that most landlords know that they should not be engaging in this type of behavior. I would, however, advise that you need to act quickly to stop this behavior if you are aware of occurrences between residents.  I stated this in my last post, but it bears repeating—simply put, always act promptly to stop harassment, wherever and whenever it occurs.

It occurred to me recently that I have been remiss in not writing about a very important rule that the Department of Housing and Urban Development (HUD) published last September.  HUD Rule 100.600 profoundly impacts landlords in two primary ways: 1) it creates liability for landlords who fail to take action to correct a hostile environment; and 2) it prohibits “quid pro quo” harassment.  This blog post will focus on the first prohibition, hostile environment harassment.  In a subsequent post, I will address “quid pro quo” harassment.

HUD Rule Section 100.600(A)(2) defines hostile environment harassment as “unwelcome conduct that is sufficiently severe or pervasive to interfere with the availability, sale, rental, or use or enjoyment of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision or enjoyment of services or facilities in connection with the sale or rental; or the availability, terms, or conditions of a residential real estate-related transaction.”  In other words, the Rule acts to prohibit harassment or bullying based on a protected characteristic.  Whether hostile environment harassment exists depends on the totality of the circumstances, looking at factors such as “the nature of the conduct, the context in which the incident(s) occurred, the severity, scope, frequency, duration, and location of the conduct, and the relationships of the persons involved.”  Basically, in determining whether hostile environment harassment has occurred, a court will review the foregoing factors from the standpoint of a “reasonable” person in the aggrieved person’s position.  Hopefully, a review of these factors will help to distinguish minor disagreements between individuals from actual harassment.

Obviously, as a landlord, you need to ensure that your employees are not creating a hostile environment for any of the residents.  But do you need to care if one resident is harassing another resident? Yes. Yes you do.  Under the new rule, you as the landlord can be directly liable for resident-on-resident harassment if you knew (or should have known) of the harassment and you fail to take prompt action to end the harassment.  So, if an employee of a management company knows that one resident is harassing another resident and the management company fails to take corrective action, then the management company will be liable under the new HUD rule (presuming, of course, that the management company has the authority to stop the harassment).

Interestingly enough, and following a theme that I wrote about earlier, HUD also stated in the preamble to the rule it “reaffirms its view that under the Fair Housing Act, discrimination based on gender identity is sex discrimination. Accordingly, quid pro quo or hostile environment harassment in housing because of a person’s gender identity is indistinguishable from harassment because of sex.”

So what’s the bottom line?  Well, in all honesty, it is probably common sense.  Landlords and management companies should act promptly to stop any and all harassment on the property, whether it is committed by one of their employees, or by a resident.  Simply put, always act promptly to stop harassment, wherever and whenever it occurs.

I received a fair housing complaint the other day, and it surprised me because of its interesting use of gender discrimination. The complaint alleged that the resident was being discriminated against by the landlord because he identified as a transgender male.  I wondered if this person was even protected under the Fair Housing Act (FHA) because of his identification, so I decided to do a little research.

It appears as if the vast majority of courts have yet to hear cases concerning this issue–however, one federal judge in Colorado recently held that the FHA protects all LGBT individuals, including those who identify as transgender individuals (see Order).

As you are probably aware, the FHA prohibits discrimination based on national origin, familial status, and sex, but does not specifically mention sexual orientation or gender identification.  Since the FHA does not address this issue, the Colorado court reviewed employment cases and statutes to give guidance.  In these employment cases, the court held that sex stereotyping is a prohibited form of discrimination.  The Colorado judge in that case held that discrimination based on gender identity is akin to discrimination based on sex stereotyping; therefore, this type of discrimination is prohibited under the FHA.  The court concluded that gender identification is included in the FHA’s prohibition of discrimination based upon “sex.”

While this is the opinion of just one judge in Colorado, I am confident this will be the national trend.  The FHA is intended to be broad to protect all individuals from being discriminated against for any number of personal characteristics that are completely unrelated from their ability to be a good tenant.  Courts will (and should) continue to interpret the FHA in this manner.  As always, encourage your employees in the leasing office to be courteous and respectful to all individuals, and to treat everyone fairly and equally.  Not only will this avoid unnecessary FHA complaints, but will promote a positive reputation for your company and help improve societal relationships on an even greater scale than your leasing office.

As I have written about before, the rules regarding permissible inquiries in response to a Fair Housing Act accommodation request are complex and fraught with danger. Given this complexity, many housing providers are inclined to simply grant any accommodation request made by a resident with an apparent disability (such as a resident in a wheelchair).

Which leads me to an interesting scenario I heard about recently.  A resident’s ferret had gotten loose on the property and was terrorizing the neighbors.  I was understandably confused, given that I did not think that this particular apartment complex allowed ferrets (in light of their obvious man-eating propensities).  It turns out that this particular resident was in a wheelchair, and the landlord, despite the property’s policy strictly prohibiting ferrets, simply allowed him to have the ferret because the disabled resident requested it (without asking any further questions).

Accordingly, as a public service announcement, I wanted to remind everyone that there still must be a connection, or nexus, between a resident’s disability and the requested accommodation.  And if that connection is not obvious, you are permitted to request information verifying the disability-related need for the accommodation.  It’s only when the disability or the disability-related need is apparent that you are not allowed to request additional information (it makes sense if you think about—if you can plainly see it, there is no need for additional documentation regarding it).

So, if a resident with a vision impairment requests what is clearly a seeing eye dog, you should not request any further information.  But if a resident in a wheelchair requests that you allow him or her to have a ferret, you will probably want to ask for documentation verifying that there is a disability-related need for that ferret.

Part II: Applying Multiple Laws in Certain Areas of the Property

As discussed in the first part of this blog series, there are certain areas of a multifamily apartment community where both the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA) apply.  Our last blog post focused on applying the ADA at those areas.  In this post, we will provide guidance on how to simultaneously apply both the FHA and ADA (with specific regard to animals).

As I mentioned previously, the Department of Justice (DOJ) has defined “service animal” under the ADA narrowly to only include dogs, and to specifically exclude emotional support animals.  Accordingly, when you are applying the ADA analysis at a public area of the property (such as the leasing office), only a dog can be considered a service animal.  The DOJ has also made clear, however, that housing providers may not use its definition of a service animal as a justification for reducing their FHA obligations, and that the revised ADA regulations do not change the reasonable accommodation analysis under the FHA.  And, as you know from my previous blog posts, unlike the ADA the FHA places no limits on what type of animal can serve as an assistance animal—nor does the FHA require that the animal receive any type of formal training.

Specifically, and as we have discussed several times before, under the FHA an individual with a disability has the right to have an assistance animal other than a dog if the animal qualifies as a necessary reasonable accommodation.  But, the good news for landlords is that they are permitted under the FHA to make more detailed inquiries to individuals with non-obvious disabilities who request reasonable accommodations.  In other words, the scope of questions that you can ask to verify the need for the animal under the FHA is much broader than it is under the ADA.

As such, you can see that there is a tension arising in matters where both the ADA and the FHA apply—such as situations involving animals and prospective tenants in the leasing office.   For example, if a prospect comes into a pet-free leasing office with an animal, are you allowed to make the detailed inquiries permitted under the FHA, or are you limited to the basic questions allowed under the ADA?

My advice, in situations where both the ADA and the FHA apply, is to apply the (stricter) ADA service animal test first.  To piggyback on the first part of this blog series and use the leasing office as an example, in a situation where an animal meets the ADA’s test for a service animal (a dog that is individually trained to do work or perform tasks), the animal must be permitted in the leasing office unless (1) the animal is out of control and its handler does not take effective action to control it; (2) the animal is not housebroken; or (3) the animal poses a direct threat to the health or safety of others.   If the animal does not meet the ADA’s service animal test, then the landlord should use the reasonable accommodation analysis under the FHA.  As a reminder, for non-obvious disabilities, a landlord is permitted under the FHA to require the individual to provide information that: (1) is necessary to verify that the individual meets the FHA’s definition of “disability” (substantially limits one or more major life activities); (2) describes the needed accommodation; and (3) shows the relationship between the individual’s disability and the need for the requested accommodation.  If there is sufficient verification of a disability and a disability-related need for the animal, then the prospect must be permitted to have the animal.

To put the interplay between the ADA and the FHA into perspective, you could hypothetically encounter a situation where a prospective tenant’s request to have a dog accompany him or her into a pet-free leasing office is denied under the ADA analysis because the dog is an emotional support animal, but permitted under the FHA because you have determined that there is a connection between the disability and the support the animal provides.



Part I:  Assistance Animals Under The ADA

As I wrote about recently, while the Fair Housing Act (FHA) applies to virtually all areas of a multifamily apartment community, the Americans with Disabilities Act (ADA) only applies to areas of the community open to the public—including, most notably, the leasing office.  Accordingly, all aspects of the ADA—including its provisions on service animals—apply to the leasing office.  And, generally speaking, most leasing offices that I’m familiar with do not allow animals.  In this blog post, I will provide guidance on how to deal with service animals under the ADA at the leasing office (or any other area of the property open to the public).  In Part Two, I will give an overview of how to apply both the FHA and ADA in areas of the property where both Acts apply.

The distinction between the FHA and the ADA—and the fact that the ADA applies to only a small area of the property—is important because the Department of Justice’s definition of service animal under the ADA includes only dogs, and specifically excludes emotional support animals.  For purposes of the ADA, “service animal” is defined narrowly as any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability.  The DOJ regulations specify that the “provision of emotional support, well-being, comfort, or companionship do not constitute work or task for purposes of [the definition of the service animal].”  Thus, under the DOJ regulations, trained dogs are the only species of animal that may qualify as service animals under the ADA (note that there is a separate provision regarding miniature horses) and emotional support animals are expressly precluded from qualifying as service animals under the ADA.

It is also extremely important to note that under the ADA, you may only ask: (1) Is this a service animal that is required because of a disability; and (2) What work or tasks has the animal been trained to perform? These are the only two inquiries that an ADA-covered facility may make, even when the disability is not readily apparent—in fact, the foregoing inquiries may not be made when it is obvious that the animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is observed guiding an individual who is blind or who has low vision).  Furthermore, an ADA-covered facility may not require documentation concerning the animal, such as proof that the animal has been certified, trained, or licensed as a service animal.

So, the bottom line is that if a prospect with a service dog enters the leasing office, you may only ask the two questions above, and you may only ask those questions if and only if the disability is non-apparent.  Obviously, this is very different from what you are permitted to ask under the Fair Housing Act, and it presents a conundrum in an area of the property where both Acts apply simultaneously.  Accordingly, in Part Two of this blog post, I will provide some guidance on how to proceed with service animals and assistance animals at the leasing office.

I had an interesting situation come up just the other day—a resident at an apartment community claimed that the community pool was violating housing discrimination laws by not being fully accessible to individuals with disabilities.  Obviously, any time a resident threatens a property with being “out of compliance with housing laws,” my heart rate jumps considerably.  However, it turns out that this situation stemmed from a common misconception regarding the separate requirements of the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA).

The question at issue was whether an apartment community pool was required to have a “pool lift.”  The particular resident was alleging that, because the complex did not have a pool lift, the property was not in compliance with the ADA.  The fact of the matter, however, is that the ADA only applies to the areas of the apartment community that are open to the general public—which is typically only a select few areas of the property.  But here, whether or not the ADA is applicable is extremely important because, to the extent that the ADA applies, your pool must have either a pool lift or a sloped entry (although, as a caveat, the rules regarding your obligations are slightly different depending on when your pool was built).  And while the Fair Housing Act Design and Construction Guidelines require that the area around the pool be accessible, there is no set requirement for access into the pool itself (only to the edge).

So how do you know whether the ADA applies to your pool?  Well, ask yourself—is the public allowed to use the pool?  Or is it restricted to the property’s residents?  To the extent that the pool is solely for the use of the residents, then it is a pretty safe bet that the ADA does not apply.  But if you allow the general public to use the pool, or if you sell pool memberships to the general public, then there is a good chance that the ADA does apply.  So how about all of the gray areas, like allowing guests at the pool, or permitting the local high school to host swim meets at the pool?  Unfortunately, like most issues with the ADA and the FHA, there is no clear rule and the safest course of action is to contact an attorney.