Disability as a Protected Class

Federal, state, and local fair housing laws prohibit public and private housing providers from discriminating against an individual because the individual is disabled or because the individual associates with individuals with disabilities. In general, fair housing law covers "dwellings" (housing) and only apply to an individual’s residence. Any programs that are funded with federal or state money are likely to require increased access.

Section 504 of the Rehabilitation Act (Section 504) and the Americans with Disability Act (ADA), are different federal civil rights laws that also protect individuals with disabilities from discrimination in their residences. Section 504 protects individual with disabilities in publicly-funded housing.

The ADA protects individuals with disabilities in commercial enterprises and public places and services including those areas of a residential building that are open to the public, such as community centers, communal laundry facilities, rental or sales offices and model units, etc.

To be clear, The Fair Housing Act requirements are similar to, but not the same as, the Americans with Disabilities Act or Section 504; they are, in fact, in addition to these. In particular, that the definition of and particulars of assistance animals differs between these laws.

Joint Statement of HUD and the DOJ on Reasonable Accommodations under the Fair Housing Act

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.

  1. First an individual is protected if the housing provider believes that the individual is mentally or physically impaired in a way that substantially limits a major life function, even though the individual is not impaired and has never been impaired. One example of this type of protection is if the housing provider hears a rumor that an individual was diagnosed with paranoid schizophrenia and because of the rumor decides not to rent to the individual, the individual would be protected under fair housing laws. It does not matter whether the individual actually has paranoid schizophrenia, or is in any way impaired. He/she is protected because the landlord believed he/she is impaired and discriminated against him/her because of this belief.
  2. The second kind of regarded as disabled that is covered is an individual who is discriminated against because the housing provider believed that an existing impairment substantially limited a major life function, when the existing impairment does not substantially limit a major life function. An example would be an individual who limps because one leg is shorter than the other. The limp may not substantially limit the person’s ability to walk, but if the housing provider believed that the limp substantially limited the individual’s ability to walk and decided not to offer the individual an upstairs unit, the individual would be protected under fair housing laws. Similarly, if the individual revealed that they had been diagnosed as HIV positive, but the individual was not currently experiencing any of the symptoms related to AIDS, the individual would be protected if the housing provider believes the individual is substantially limited in their ability to interact with others or work because of the stereotypes he/she has heard about the disease.

 

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.

How are Individuals with Disabilities Protected?

The fair housing laws protects individuals with disabilities in three ways: 1) directdiscrimination is prohibited, 2) housing providers must grant reasonable accommodation or modification requests, and 3) if the residence was built or substantially modified after 1991, the building must be “handicap accessible.”

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):

Zoning laws cannot be used to keep people with disabilities out of a neighborhood. The U.S. Supreme Court's May 1995 decision in City of Edmonds v. Oxford House upheld this provision in its first interpretation of the 1988 amendments to the Fair Housing Act.

A landlord or condominium / co-op owner may not ask if an applicant or tenant has a disability, or if he or she is "capable of independent living" unless all applicants are asked the same question.

A landlord or owner can reject an application or evict a tenant only for being unable to meet the obligations that apply to all tenants (paying rent, complying with reasonable rules, etc.) or for directly threatening the health or safety of other individuals.

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

“Access” Requirements Under Fair Housing Law

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:

  1. 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.
  2. Structural measonable 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.
  3. 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.

 

Housing providers are required to consider all requests for reasonable modification or reasonable accommodation; however, they are entitled to a verification letter from a third party.


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