physical or mental
Disability as a Protected Class
Following are several commonly asked questions, resources, and links related to disability as a protected class.
-Who Is Protected Against Discrimination Based on Disability?
Disability, under the federal Fair Housing Act, is broadly defined to include any physical or mental condition that creates a substantial "major life impairment" such as difficulty seeing, walking, thinking, and so forth. It covers the actual home seeker, a family member, or a guest. It covers actual impairments, a history of disability, or a mistaken belief that a person is disabled.
There are three ways that an individual can qualify as disabled: A) demonstrate that they have an existing mental or physical impairment that substantially limits a major life function, B) demonstrate that the housing provider believed that they were substantially limited in a major life function, or C) demonstrate that they have a record of a physical or mental impairment that substantially limits a major life function.
Individuals with an existing impairment: To qualify under the existing impairment option, individuals must identify a major life function that is limited, such as seeing, hearing, breathing, mobility, communication, or self care; and demonstrate that his/her physical or mental impairment substantially limits that major life function. To qualify, the impairment must be substantial, not merely a minor limitation or inconvenience. Therefore, the impairment must be permanent or chronic, not a temporary limitation due to surgery or a broken leg. For example, a woman who is mentally impaired due to chronic depression and as a result is substantially limited in her ability to care for herself qualifies as having an existing disability. Current illegal drug users are not protected, but people who are alcoholics or in substance abuse recovery programs are protected.
Individuals regarded as disabled: Under this protection, an individual does not have to be disabled. This protection is provided so that individuals who may not be disabled are protected from stereotyping and housing providers who discriminate based on rumors. Individuals can qualify under the regarded as disabled protection in two ways.
Individuals with an impairment record: The third way to qualify as disabled is to demonstrate that the individual has a record, medical or otherwise, that they were impaired and their impairment substantially limited a major life function. The individual will have to show that the landlord had access to the relevant records.
Individuals who associate with individuals with disabilities: Housing providers are also prohibited from discriminating against individuals because they have friends, family members, or other acquaintances that are disabled. This means that even if a housing provider has a no-pet policy, guests who have service or companion animals must be allowed to bring their animal onto the property when they visit. Likewise, a housing provider cannot deny a mother housing because her child is disabled, regardless of whether her child with a disability would be living with her.
The fair housing laws protects individuals with disabilities in three ways: 1) direct
Direct discrimination forbidden: Outright discrimination because a person has a disability is illegal in all types of housing transactions such as renting, selling, financing, and advertising, just as it is for other protected classes. An example of outright, or overt discrimination would be refusal to rent a house to a person because that person has a chronic illness.
Fair housing law applies to discriminatory actions taken because of a disability; not because of a lawful reason such as bad credit that applies to all applicants. Regulations do not allow the housing provider to make inquiries about the details of a disability except in very narrow circumstances, such as when the presence of a disability is a qualification for a specialized housing program.
Another major barrier to housing for people with disabilities is NIMBY ("not in my back yard")—opposition based on the stigma of disability. Landlords often refuse to rent to tenants with a history of mental illness. Neighbors object when a house becomes a group home. City officials enact and enforce special-permit requirements and other restrictions on land use to deny housing to people with (or perceived as having) a disability. All these actions are prohibited by the federal Fair Housing Act (FHA):
A portion of the above segment is compliments of The Bazelon Center for Mental Health Law. A wealth of resources from advocates, the federal government, and The Bazelon Center can be found at their website http://bazelon.org/issues/housing/moreresources/index.htm.
The idea of fair housing is to equalize housing opportunity. Only in the case of disability does the law require the provider to take affirmative steps to increase access. These three fair housing requirements do not apply in the case of other protected classes. The three requirements are:
Accessible common areas and "readily adaptable" ground floor dwelling units in most newly constructed multi-family apartment buildings. The act also requires accessible exterior routes into the building and ground floor units. For more information on multi-family design and construction requirements visit our D&C page at FHCO.org/dc.htm.
Structural Reasonable Modification to increase accessibility. Housing providers must consider all requests by a housing consumer to make reasonable structural changes at the tenant's expense so s/he has full use of the dwelling unit. Public funding may obligate the landlord to pay.
Reasonable Accommodations in rules, policies, procedures, and practices. This legal obligation applies most often in the rental arena. The housing provider must make reasonable adjustments in rules when necessary both because of a disability and to acquire or maintain the tenancy.
Please visit www.FHCO.org/pdfs/RA-RMinfo.pdf for more information.
Service Animals in Housing as a Reasonable Accommodation
Please visit www.FHCO.org/serviceanimals.htm for more information.
Please visit www.FHCO.org/med_marijuana.htm for more information.
FHCO's Design & Construction page
FHCO's Accessibility Guidelines page for Multi-family Housing
Bazelon Center for Mental Health Law
Fair Housing First - Design and Construction Requirements
Refinance & Mortgage Guide for People with Disabilities (A
n extensive audio-enabled tool)
Contact us at 800/424-3247 or information@FHCO.org. You might also consider viewing the relevant videos we offer at www.FHCO.org/videos.htm. For further information, please visit our FAQs page and / or use the search box at the top right-hand corner of each page.
Related Resources Links
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