13.5.2 Disability Discrimination

For FHA purposes, a disability is (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of having such impairment; or (3) being regarded as having such an impairment. This definition is virtually identical to that under § 504 of the Rehabilitation Act of 1973. Congress intended interpretations that are consistent with interpretation under § 504.1  The disability discrimination provisions also protect persons residing or associating with people with disabilities, e.g., parents, children, spouses, roommates, etc. Current illegal users of alcohol or a controlled substance are excepted from the definition of disability; alcoholism and substance abuse disorders are considered disabilities if not accompanied by current illegal use.2

The constitutionality of the FHA’s prohibition of disability discrimination has been upheld by the courts.3  Examples of disability discrimination include: inquiries about disability or nature/severity;4  eviction of tenant with mental disability without making reasonable efforts to accommodate;5  eviction of tenant with disability for criminal activity or property damage without individualized assessment of whether reasonable accommodations would acceptably minimize risk to others;6  eviction for fire hazards without helping tenant get rid of problem;7  eviction of elderly tenants or tenants with disabilities for poor housekeeping;8  no pets rule as to tenant with mental disabilities who needed companionship of dog;9  refusal to waive guest fees for medical care required by tenant with disabilities;10  refusal to give a co-op resident with disabilities a ground floor parking space;11  HUD’s refusal to transfer Section 8 tenants with disabilities to accessible housing;12  and refusal to allow an indigent person with AIDS to reside in an apartment rented for him by his financially qualified mother.13

Tenants with disabilities must be allowed, at their own expense, to make any reasonable modifications necessary for full enjoyment of premises, i.e., the unit, lobbies, main entrances, common areas, etc.14  Landlord does not have absolute right to reject modifications but may condition approval of unit modification on restoration agreement.

Housing providers must make reasonable accommodations in rules, policies, practices, or services necessary to afford persons with disabilities “equal opportunity to use and enjoy a dwelling.”15  The accommodation must be allowed unless it imposes an undue financial or administrative burden or requires a fundamental alteration in the nature of the provider’s program. HUD and the Department of Justice have issued a joint statement on reasonable accommodations that provides helpful guidance.16  Examples of required accommodations include (1) allowing a service animal for a blind tenant, (2) reserving a parking place for a tenant who uses a wheelchair, and (3) waiving rules to allow a tenant with disabilities to have a live-in aide. In addition to giving rise to an affirmative claim, failure to accommodate can be an affirmative defense to eviction.17

• 1The list of “major life activities” in 24 C.F.R. § 100.201 is not all-inclusive. United States v. Borough of Audobon, 797 F. Supp. 353 (D.N.J. 1991), aff’d, 968 F. 2d 14 (3d Cir. 1992).
• 2Oxford House Inc. v. Town of Babylon, 819 F. Supp. 1179 (E.D. N.Y. 1993) (people recovering from alcoholism and substance abuse disorders); United States v. S. Mgmt. Corp., 955 F. 2d 914 (4th Cir. 1992) (people recovering from substance abuse disorders).
• 3See Groome Res. Ltd. v. Par. of Jefferson, 234 F.3d 192 (5th Cir. 2000).
• 424 C.F.R. § 100.202(c); Cason v. Rochester Hous. Auth., 748 F. Supp. 1002 (W.D.N.Y. 1990) (holding that PHA can’t inquire into applicant’s ability to live independently).
• 5Roe v. Sugar Mill Assocs., 820 F. Supp. 636 (D.N.H. 1993); Citywide Assocs. v. Renfield, 564 N.E. 2d 1003 (Mass. 1991).
• 6Boston Hous. Auth. v. Bridgewaters, 898 N.E.2d 848 (Mass. 2009) (holding that housing authority must show that no reasonable accommodation would minimize risk mentally ill tenant poses to others); Renewal Homes v. Laneheart, 2017-0199 (La. App. 4 Cir. 10/18/17), 316 So. 3d 936 (affirming dismissal of eviction where tenant with schizoaffective disorder caused damage to the unit due to her disability, and landlord failed to reasonably accommodate her). But see Hous. Auth. of the City of Lake Charles v. Pappion, 540 So. 2d 567 (La. App. 3 Cir. 1989) (§ 504 case).
• 7Schuell Inv. Co. v. Anderson, 386 N.W. 2d 249 (Minn. Ct. App. 1986).
• 8Rutland Court Owners, Inc. v. Taylor, 997 A.2d 706 (D.C. 2010).
• 9Majors v. Hous. Auth. of the Cnty. of Dekalb, 652 F. 2d 454 (5th Cir. 1981); Whittier Terrace Assocs. v. Hampshire, 532 N.E.2d 712 (Mass. Ct. App. 1989).
• 10United States v. Cal. Mobile Home Park Mgmt. Co., 29 F.3d 1413 (9th Cir. 1994).
• 11Shapiro v. Cadman Towers, Inc., 51 F. 3d 328 (2d Cir. 1995) (granting preliminary injunction).
• 12Liddy v. Cisneros, 823 F. Supp. 164 (S.D.N.Y. 1993) (denying HUD’s motion to dismiss).
• 13Giebeler v. M & B Assocs., 343 F.3d 1143 (9th Cir. 2003).
• 1442 U.S.C. § 3604(f)(3)(A); 24 C.F.R. § 100.201.
• 1542 U.S.C. § 3604(f)(3)(B).
• 16Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations under the Fair Housing Act (May 17, 2004).
• 17Renewal Homes, 2017-0199, 316 So. 3d 936.