April is Fair Housing Month!

Posted on April 18, 2017

by Mark C. Joyce, Esq.

The Fair Housing Act was signed into law as part of the Civil Rights Act of 1968 on April 11, 1968.  This Act is celebrated each April as Fair Housing Month.

This law and its later amendments prohibit housing discrimination in the sale, rental and financing of dwellings based on race, color, religion, sex, national origin and disability.

As part of the Fair Housing Month activities, I was one of three speakers on a panel that presented a three hour seminar designed for landlords and property managers. The seminar was conducted by the Maine Human Rights Commission in conjunction with the MaineHousing Authority, Pine Tree Legal Assistance, and Disability Rights Maine.  It provided an overview of fair housing law and took place in Augusta, Westbrook and Bangor.

My presentation focused on reasonable accommodations in housing for individuals with disabilities. When I do housing presentations, I always begin with the recognition that these laws do not give any person any type of “special rights”.  

These laws recognize that sometimes rules, policies, procedures or services that a housing provider utilizes may have a different effect on a person with a disability compared with individuals who do not have a disability.  And sometimes, unless the housing provider modifies those rules, a person with a disability will be denied the equal opportunity to enjoy the housing in the same way as a person who does not have a disability can enjoy the housing.   So these laws are not granting special rights to be people with disabilities. Instead these laws are merely ensuring that people with disabilities have equal rights. That is why fair housing law makes it unlawful to refuse to make reasonable accommodations to rules, policies, practices, or services when such accommodations may be necessary to afford persons with disabilities an equal opportunity to use and enjoy a dwelling.

Examples of How Reasonable Accommodations Work

In 2004 the Department of Housing and Urban Development (HUD) and the Department of Justice (DOJ) issued a joint statement regarding reasonable accommodations under the Fair Housing Act, which is available on the DOJ website.  While this document is not a law or a regulation, it is intended as guidance and has been cited in court opinions as recently as 2013.  The following are two examples, included in the memorandum, that illustrate the concept of a reasonable accommodation.

Example 1: A housing provider has a policy of providing unassigned parking spaces to residents. A resident with a mobility impairment, who is substantially limited in her ability to walk, requests an assigned accessible parking space close to the entrance to her unit as a reasonable accommodation. There are available parking spaces near the entrance to her unit that are accessible, but those spaces are available to all residents on a first come, first served basis. The provider must make an exception to its policy of not providing assigned parking spaces to accommodate this resident.

Example 2: A housing provider has a policy of requiring tenants to come to the rental office in person to pay their rent. A tenant has a mental disability that makes her afraid to leave her unit. Because of her disability, she requests that she be permitted to have a friend mail her rent payment to the rental office as a reasonable accommodation. The provider must make an exception to its payment policy to accommodate this tenant.

Maine Human Rights Act Process

As outlined above it can be a violation of fair housing laws to refuse to grant a reasonable accommodation to a person with a disability. There are a number of individualized factors a court will take into account when determining whether or not the denial of the accommodation request was a violation of law. 

In Maine one of the avenues for individuals with disabilities who are alleging that their housing rights were violated, including that they were denied a reasonable accommodation, is to file a complaint with the Maine Human Rights Commission (MHRC).  Information on how to file such complaints with the MHRC can be found on their website.

The MHRC is the state agency charged with the responsibility of enforcing Maine’s anti-discrimination laws.  Allegations of housing discrimination are processed much more quickly than allegations of discrimination in other areas. When a complaint regarding housing is filed with the MHRC they must complete an investigation within 100 days and then make a determination as to whether or not there are reasonable grounds to believe the housing provider engaged in unlawful discrimination.  In employment cases the MHRC has up to two years to complete its investigation. 

What is unique in housing cases is that if there is a reasonable grounds finding at the Commission, and no settlement agreement can be reached with the housing provider after this finding, the MHRC, in its own name, must bring a lawsuit against the housing provider.  Their regulations provide that in complaints they investigate pursuant to a Memorandum of Understanding between the Commission and HUD that results in a reasonable grounds determination, the Commission shall file a civil action for the use of complainant if conciliation efforts are unsuccessful.

Often times the individual who alleges housing discrimination also files a lawsuit in their own name and these lawsuits are filed at the same time as those filed by the MHRC.

Example oF DRM Casework

In 2016 the MHRC entered into a conciliation agreement that included relief in the public interest in a case in which the individual with the disability was also being represented by the DRM.

This conciliation agreement involved the Caincrest Mobile Home Park located in York, Maine.  In that case one of the allegations was that the park denied a reasonable accommodation request made by a tenant to waive park rules that would allow her the use of an emotional support dog. As part of the agreement in the public interest with the Maine Human Rights Commission the owners and managers of the Caincrest Mobile Home Park agreed to the following:

Caincrest also agreed to give the MHRC authority to monitor the agreement in order to ensure that its terms were met.

Final Thoughts

In many cases the parties are able to work out accommodations that are acceptable to both the person with the disability and the housing provider so that filings at the MHRC and in court will not be necessary.  However, as outlined above, housing discrimination is viewed as a type of discrimination that needs to be addressed as soon as possible, even if it means going to court.  Which makes sense.  It’s somebody’s home.

Finally, in these seminars, I recount the times when I would sometimes conduct these types of trainings with a former DRM employee who, when someone in the audience, even if well-intentioned, began the sentence with “Well, I am not a person with a disability...” she would cut them off with these two words: “just wait”.  Disability is a class that anyone of us could join at any moment of our lives.  And that is why it is so important to not only celebrate the anniversary of the passage of  laws like the Fair Housing Act, but also to try our best to make sure that these laws are followed so that individuals with disabilities can have the same rights as individuals without disabilities to use and enjoy their homes.