Fair Housing: How to Make the Law Work For You Paralyzed Veterans of America 801 Eighteenth Street, N.W. Washington, D.C. 20006 (202) 872-1300 Copyright 1989 by the Paralyzed Veterans of America All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means without permission in writing from the Paralyzed Veterans of America, 801 - 18th Street, N.W., Washington, D.C. 20006 This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice is required, the services of a competent professional person should be sought. A Word From PVA Advocacy Program Of The Paralyzed Veterans For more than 40 years, the Paralyzed Veterans of America, a national service organization, has been in the forefront of organizing and ensuring quality health care and rehabilitation for veterans with spinal cord dysfunction and job opportunities and civil rights for all veterans and all Americans with disabilities. PVA's National Advocacy Program strives to promote and protect the legal rights of persons with disabilities. We do this by working with agencies and organizations at federal, state, and local levels of government to remove architectural and attitudinal barriers. PVA's leadership role in advocacy extends to working with other organizations representing citizens with disabilities, transportation, employment, civil rights, and more. One example of our success is the passage of the Fair Housing Amendment Act in 1988. Through the Advocacy Program, PVA lobbied Congress and the Department of Housing and Urban Development (HUD) to get the bill passed and regulations implemented. The Advocacy Program is committed to protecting the rights of individuals with disabilities when they attempt to rent or own housing. This publication explains the rights and remedies of all individuals with disabilities when they seek housing opportunities. Introduction What does "fair housing" mean? Maybe the following story will help you understand. A few years ago Bob set out to look for his first apartment. Being a wheelchair user, Bob needed a place he could use. Like other people, Bob searched through newspaper ads, drove by a few places, then found one that looked really nice. It was a ground floor apartment not too far from his job, and there was only one step to go up at the front door. The step was a small barrier, which could be dealt with by construction of a small ramp. He filled out an application and arranged an interview with the apartment manager. When Bob arrived for the interview, the apartment manager began to ask questions which made him a bit uncomfortable. What will you do if there is a fire? How will you get your groceries into the apartment? What will happen if you fall out of your wheelchair? Won't you have a problem getting over that step? Bob assured the manager that if there was a fire, he'd have enough sense to leave the apartment and then told the management that he intended to pay someone, out of his own pocket, to build a small ramp. The application was taken and Bob was told that someone would call to let him know if his application would be approved. After a few days and no call, Bob called them back and was told that the apartment had been rented. He was informed that the company that owned the apartment building would not permit an addition to the structure in the form of a ramp. They believed it was a potential safety hazard and would also bother other tenants. Why isn't there a law against this type of treatment? Until 1988, protection against this type of discrimination was not available unless the apartment building received some form of federal financial assistance or if the state or local housing anti-discrimination law included persons with a disability as a protected class. This is no longer the case, and there is now a law which protects people with disabilities from discrimination in the sale or rental of housing. The law is known as the Fair Housing Amendments Act of 1988 (FHAA), which was enacted September 13, 1988 and became effective March 12, 1989. But the key to the new law's success in opening up new housing opportunity lies with you. The federal government cannot possibly monitor every housing activity going on daily in the country. Because of this, discrimination often goes undetected and uncorrected. This means the federal government depends on you, the individual, to come forward and raise concerns or file a complaint or sue if you believe your rights have been violated. To understand the Fair Housing Amendments Act, let's look back to the 1968 legislation which preceded it. This legislation is Title VII of the original Fair Housing Act. Title VII prohibits discrimination on the basis of race, color, religion, sex, or national origin in housing sales, rentals or financing. The FHAA added persons with handicapping conditions, along with families with children, as protected classes to this law. In so doing, the legislation adopts the definition of a handicapping condition found in Section 504 of the Rehabilitation Act of 1978 as amended. This definition covers any person who has a disability that affects a major life activity, has a history of that disability, or is regarded as having a disability. The Regulation A law or statute is written in general terms, which are usually broad statements of what should be done. In order to make a law apply to day-to-day situations, a set of specific rules is developed by those federal agencies which are affected by a new law. These rules are called regulations. The original legislation and the FHAA stress the role of the U.S. Department of Housing and Urban Development (HUD) as the lead federal agency, principally charged with investigating, administering and enforcing the FHAA. The specific role and process of enforcement is spelled out in HUD's regulation implementing the FHAA. The regulation sets four major requirements: (1) prohibited actions, (2) reasonable accommodation, (3) accessibility requirements for existing and new construction, and (4) enforcement and compliance. Prohibited Actions are those actions which are specifically forbidden under the FHAA. For example, refusing to sell or rent to a person based on the fact that they have a disability is against the law. Also, a landlord may not have one lease for persons with disabilities and another for other applicants. These actions are prohibited. Reasonable Accommodation was first established under Section 504 of the Rehabilitation Act. The fair housing regulation makes it unlawful for a landlord or housing provider to refuse to make reasonable changes in their rules, policies, services, or practices when these accommodations are necessary to allow a person with a disability an equal opportunity to use and enjoy the housing. An example: An apartment building provides parking for tenants on a first come, first served basis. It would be considered a reasonable accommodation to require the landlord to change the policy to require that they reserve parking spaces, close to an accessible route, for tenants with mobility impairments. Accessibility Requirements for Existing and New Structures are the basic designs which allow persons with disabilities access to housing. People with disabilities understand the need to make personal modifications to their living environment. These modifications are often very tailored to the individual's needs. Thus the law requires that landlords allow tenants to make reasonable changes or modifications to their units. These modifications might be made in the interior of the tenant's unit and to common areas when they are necessary. Such permissible modifications might include, but are not limited to, such things as installing grab bars in the bathroom, lowering kitchen cabinets, widening a doorway to the tenant's laundry room and installing a visual door bell. The cost of the modifications must be paid by the tenant if reasonable. The tenant may be required to restore the unit back to its original condition. For example, a landlord might require that a tenant remove the grab bars in a bathroom, but a doorway in the laundry room, which was widened to allow access, would not have to be restored. This is because the widened doorway would not affect other tenants' use of the laundry room. The landlord may require the tenant, in cases where extensive modifications are done, to place in an escrow account an amount that would cover the cost of returning the dwelling unit to its original condition. The amount and terms of such an account will be determined on a case by case basis. In any event, such an account is not meant to be used in a manner which would discourage anyone's rental and modification of units to meet their individual needs. Newly constructed (elevator or non-elevator) multifamily dwellings with four or more units must provide basic accessibility to persons with disabilities if the buildings are ready for first occupancy after March 13, 1991. The law requires all such buildings to have at least one building entrance on an accessible route. The buildings must be constructed in such a manner that the public and common use areas are readily accessible to and usable by persons with disabilities. For instance, public areas such as a lobby or common areas such as a swimming pool or recreation area must be accessible. All of the doors in the building must be wide enough to let a person using a wheelchair in or out. Each unit within the project will have an accessible route into and through the unit; light switches and electrical switches and other controls located low enough; sufficient reinforcement (studs in bathroom walls) to allow a tenant to install grab bars where needed; and kitchens and bathrooms designed so that a wheelchair user can maneuver within the space. For buildings without elevators only the ground floor units need to provide these features, but in buildings with elevators every unit must include these features of adaptive design. Enforcement and Compliance of any civil rights law would not be possible without a mechanism to handle possible violations to ensure fairness and equal treatment. This simply means that, unless individuals raise issues of discrimination, progress will depend on voluntary compliance by housing providers or the government taking action when HUD itself initiates a complaint through the agency's Secretary. The Complaint Process Filing a Complaint Any person who claims discrimination may file a complaint in person or by mail. Complaints should be made within one year of the date that the discriminatory act took place. You may provide information over the telephone and the HUD office will put your complaint in writing and send it to you for your signature. If you live in a state or local area that has a Fair Housing Law that is equal to the federal law (substantially equivalent), the agency assigned to enforce the local law may receive your discrimination complaint. If you are unsure of whether your state or local government has such a law, simply file your complaint with a HUD office. Whenever the complaint alleges discrimination within a jurisdiction that has a law equal to the federal law, HUD will refer your complaint to the local agency for investigation. At any point during the complaint investigation or any part of the complaint process, HUD or the local agency is required to reasonably accommodate or assist a citizen who wishes to file a complaint. For example, providing interpreting services for a person with a hearing impairment; brailling or taping materials for visually impaired persons; assisting with writing; holding conferences in an accessible building, and so forth. HUD addresses and Fair Housing Complaint Hotline Telephone numbers are also provided at the end of this publication. Complaint Investigation Once the complaint is accepted by HUD or the local agency, an investigator will be assigned to your complaint. At this point an investigation must begin. It is in everyone's best interest to try to resolve complaints voluntarily. Beginning with the filing of a complaint, and up to the end of the investigation, HUD or the local agency will attempt to resolve the matter by conciliation (voluntary agreement). If no agreement can be reached, then the investigation will be completed. Where the state or local agency is acting to enforce its own housing discrimination law, HUD is required to defer the resolution of the complaint until it has been resolved locally. Once an agreement or settlement is reached, HUD may request that the agreement be enforced by asking the Department of Justice to institute a civil suit in federal court if anyone does not honor the agreement. Also, the individual who filed the complaint may go directly to federal court to enforce the agreement. The ability of an individual to file in federal court is known as a private right of action. An individual has the private right of action, except if an administrative hearing has begun and/or within two years after the discriminatory action took place. It is this power of a private right of action, combined with the potential for obtaining fees for a complainant's attorney and penalties (fines) against someone who is proven to have discriminated that the real opportunity for expanded enforcement exists. After the investigation has begun, HUD or the local agency must complete their investigation and make a reasonable cause determination within 100 days of the filing date of the complaint. In the event that the 100 day requirement is not met HUD must notify, in writing, the people involved in the complaint and the reasons for the delay. Enforcement Where there is proof that housing discrimination has occurred, a charge will be issued by HUD on behalf of the aggrieved person. Once a formal charge is issued, you or the respondent has an important choice to make. If you or the respondent chooses, the case may go directly to federal court and a request can be made for a jury trial. In this case, HUD would notify the Attorney General of the action brought by the Department of Justice on behalf of the person filing the complaint. Upon a finding of discrimination, the court is authorized to issue an injunction and award the complainant both actual and punitive damages. This means "your day in court." The second option would be if neither party requests that the case go to federal district court; then the matter could be presented before an Administrative Law Judge (ALJ) appointed by HUD. This is an entirely judicial process and the decision is just as binding as that of a court but is often a quicker process. If discrimination is found, the ALJ is empowered to issue relief similar to that which would have been issued if the case had gone to court. Regardless of which you choose, you will not be required to seek the services of a lawyer, although that option is always available. Remedies and Damages Whether you elect the federal district court or an Administrative Law Judge, specific actions shall be ordered to remedy the consequences of that discrimination. These actions include the imposition of actual damages (out of pocket expenses, lawyer's fees, etc.) and civil penalties ranging from a maximum of $10,000 for a first offense to a maximum of $50,000 for a third violation. Summary The importance of the Fair Housing Amendments Act is to provide persons with disabilities enhanced opportunities to find and enjoy suitable housing. This Act gives you the private right of action to enforce the law and to put the federal government on the side of those who may suffer from discrimination. As you attempt to obtain housing and you feel something is just not right, or perhaps you think someone is discriminating against you, keep a record of events. This may be done by keeping a simple diary summarizing conversations and telephone calls. Keep copies of letters or other materials related to the housing transaction. All of this can be useful in an investigation should one become necessary. It is critical to remember that federal agencies are under increasing pressure to reduce or restrict their budgets. In addition, many officials who are responsible for enforcing the Fair Housing Amendments Act, including HUD staff, may not realize the specific needs of persons with disabilities. This means that effective realization of the goals of the Act will depend on your input and direct action. Stay informed and raise your concerns when you believe you have been discriminated against. Questions and Answers Q: I'm afraid to file a complaint. Do I have any protection if I file a complaint? A: Yes. No one can threaten or try to stop you from exercising any of your rights provided under the FHAA. The FHAA also protects anyone who assists or encourages others to exercise their rights under the FHAA. Q: Will single family homeowners be exempt from FHAA? A: No. The only exceptions are rare cases when a single-family homeowner is selling their home without agents or advertisements. Newly constructed single-family homes do not have to meet the new construction requirements under the FHAA. Q: How are townhouses covered under the new law? A: In terms of purchase or rental of a townhouse, a person with a disability cannot be denied an opportunity to buy or rent. However, HUD has taken the position in its regulation that townhouses do not meet the definition of a multifamily dwelling. Therefore the accessibility standards required of new construction would not apply. However, if the person with a disability is buying a townhouse being constructed by a developer and wishes to cover the cost of accessibility modifications, the developer cannot refuse to make such modifications. Q: Is it true that persons who are substance abusers (e.g. drug addicts, alcoholics) are not protected under the FHAA? A: Persons who have alcoholism or drug addiction as their disability are protected under FHAA. However, if their current use of the substance is illegal or they are unable to meet their obligations as a tenant, they could be denied housing because they are no longer considered qualified. Any claim that a person's tenant poses a direct threat must be founded in fact. Q: Does a newly constructed two-story apartment complex, without an elevator, have to provide access to the second floor? A: If the building is constructed for first occupancy after March 13, 1991, and if the building has four (4) or more units and no elevator, only the ground floor unit and public or common areas must be accessible. Additionally, tenants on the ground level must be provided equal amenities as those on the second floor. For example, if tenants are provided laundry rooms on the second floor, then laundry rooms must also be provided in an accessible place on the ground floor. This may be accomplished in a number of ways, including placing laundry machines in tenants' apartments. Q: I was told by a developer of a new apartment complex that the project and the units are constructed to comply with the ANSI A.117.1 Standard. Is the project in compliance with FHAA? A: The FHAA allows some flexibility for construction and design of housing as long as the basic accessibility requirements are met. This standard requires less than ANSI; therefore, if the developer follows ANSI, the project would be in compliance with the FHAA. Q: Can a landlord require a person with a disability to pay an extra security deposit and not be in violation of the law? A: A landlord may not increase the amount of a security deposit of a tenant simply because they have a disability. If the tenant is planning to make extensive modifications to the unit for greater accessibility, the landlord may require a reasonable amount to be placed in an escrow account to guarantee the restoration of the unit to its original condition. Q: A friend told me that because I live in a public housing project it would be better to file a discrimination complaint under the FHAA rather than Section 504 of the Rehabilitation Act, because I can be awarded monetary damages under FHAA and not under Section 504. Is my friend correct? A: For the most part, your friend is correct. However, the scope of the requirements a housing provider must meet are set out differently. For example, if you were to file a discrimination complaint against a housing provider who refused to allow you to modify an existing unit and that provider received federal financial assistance, the remedies you could seek under Section 504 are different than under FHAA. Under the FHAA you could seek some monetary relief and force the landlord to allow you to make modifications at your expense. However, under Section 504, the landlord could be required to pay for the modifications. As a general rule, if you are unsure of whether or not federal financial assistance is involved, file the complaint under both Section 504 and FHAA. HUD Regional Offices Region I--Boston (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont) HUD -- Fair Housing and Equal Opportunity (FHEO) Boston Federal Office Building 10 Causeway Street Boston, Massachusetts 02222-1092 Region II--New York (New Jersey, New York, Puerto Rico, Virgin Islands) HUD -- Fair Housing and Equal Opportunity (FHEO) 26 Federal Plaza New York, New York 10278-0068 Region III--Philadelphia (Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, West Virginia) HUD -- Fair Housing and Equal Opportunity (FHEO) Liberty Square Building 105 S. 7th Street Philadelphia, Pennsylvania 19106-3392 Region IV--Atlanta (Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee) HUD -- Fair Housing and Equal Opportunity (FHEO) Richard B. Russell Federal Building 75 Spring Street, S.W. Atlanta, Georgia 30303-3388 Region Very-Chicago (Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin) HUD -- Fair Housing and Equal Opportunity (FHEO) 626 West Jackson Boulevard Chicago, Illinois 60606-5760 Region VI--Texas (Arkansas, Louisiana, New Mexico, Oklahoma, Texas) HUD -- Fair Housing and Equal Opportunity (FHEO) 1600 Throckmorton, P.O. Box 2905 Fort Worth, Texas 76113-2905 Region VII--Kansas City (Iowa, Kansas, Missouri, Nebraska) HUD -- Fair Housing and Equal Opportunity (FHEO) Professional Building 1103 Grand Avenue Kansas City, Missouri 64106-2496 Region VIII--Denver (Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming) HUD -- Fair Housing and Equal Opportunity (FHEO) Executive Tower Building 1405 Curtis Street Denver, Colorado 80202-2349 Region IX--San Francisco (Arizona, California, Hawaii, Nevada, Guam, American Samoa) HUD -- Fair Housing and Equal Opportunity (FHEO) 450 Golden Gate Avenue San Francisco, California 94102-3448 Region It-- Seattle (Alaska, Idaho, Oregon, Washington) HUD -- Fair Housing and Equal Opportunity (FHEO) Arcade Plaza Building 1321 Second Avenue Seattle, Washington 98101-2054 Fair Housing Complaint Hotline: 1-800-424-8590 (TDD) 1-800-543-8294 Quick Reference The following is a list of legal terms often used during the enforcement process. Aggrieved person is anyone who claims to have been injured by a discriminatory housing practice. Burden of Proof is the obligation of one party to establish by overwhelming evidence (preponderance) that the other party is liable under the law. Usually the burden of proof rests with the persons initiating the action. For the most part it will be the complainant, but can be the respondent (i.e., landlords who are evicting, banks in some credit matters). Complainant means the person (including the Secretary of HUD) who files a complaint. Conciliation means the attempt to resolve the problems raised by a complaint through informal and voluntary negotiation between the aggrieved persons, the respondent and the Secretary of HUD. Disparate Impact means practices that appear to be neutral but impact more harshly on one group than another group. An example: the landlord requires rent to be hand-delivered to the rental office, which has steps to the entrance. Although the policy is applied to everyone, it would have a discriminatory impact on persons with mobility impairments. Disparate Treatment means that some people are treated less favorably than others because of a handicap. Prevailing Party is the individual entity which has been proven to be correct in a case; it can be the complainant or the respondent. Reasonable Cause means that after an investigation there is sufficient evidence to believe discrimination has occurred and the matter can now proceed to the courts. Respondent means any person or entity accused in a discrimination complaint or found during an investigation to be committing an unfair housing practice. Secretary means the Secretary, U.S. Department of Housing and Urban Development