U.S. Supreme Court Upholds Disparate Impact Claims Under Fair Housing Act

This morning the United States Supreme Court upheld disparate impact claims under the Fair Housing Act. The opinion, Texas Department of Housing and Community Affairs, et al. v. Inclusive Communities Project, Inc., was the result of a 5-4 decision with two dissenting opinions (See the clueintexas.com January 2015 blog entry for further background information on the facts of the case). Basing its holding in part upon similar statutes, the Court held: “disparate-impact claims are cognizable under the Fair Housing Act upon considering its results-oriented language, the Court’s interpretation of similar language in Title VII [of the Civil Rights Act of 1964] and the ADEA [Age Discrimination in Employment Act], Congress’ ratification of disparate-impact claims in 1988 against the backdrop of the unanimous view of nine Courts of Appeals, and the statutory purpose (“to eradicate discriminatory practices within a sector of our Nation’s economy”).”


The Court, however, cautioned against expansive liability: “disparate- impact liability must be limited so . . . regulated entities are able to make the practical business choices and profit-related decisions that sustain a vibrant and dynamic free-enterprise system. And before rejecting a business justification—or, in the case of a governmental entity, an analogous public interest—a court must determine that a plaintiff has shown that there is ‘an available alternative . . . practice that has less disparate impact and serves the [entity’s] legitimate needs.’” Noting further a “business necessity” defense to liability, the Court stated: “An important and appropriate means of ensuring that disparate-impact liability is properly limited is to give housing authorities and private developers leeway to state and explain the valid interest served by their policies.” The Court pointed out: “The limitations on disparate-impact liability discussed here are also necessary to protect potential defendants against abusive disparate-impact claims. If the specter of disparate-impact litigation causes private developers to no longer construct or renovate housing units for low-income individuals, then the FHA would have undermined its own purpose as well as the free-market system.”

Minnesota HOA Agrees to Pay Over $100,000 to Settle Fair Housing Case

The December 2013 blog entry reported the Condominiums of Greenbrier Village case that was filed in Minnesota alleging discrimination against families with children based upon rules regulating the use of common areas. The parties entered a consent order this month that includes an injunction, the Association’s agreement to implement a written nondiscrimination policy, and mandatory fair housing discrimination training for the board and the manager. The Association agreed to pay $ 100,000 to six affected families and $ 10,000 to the Department of Justice as a civil penalty. Below is a link to the Consent Order:


U.S. Supreme Court Hears Fair Housing Act Disparate Impact Appeal

Last week the Supreme Court heard oral argument to consider whether disparate impact may be considered discriminatory under the Fair Housing Act (Act) in the case of Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. The Act protects people from discrimination in housing practices based upon their race, color, religion, national origin, disability, sex and familial status (having minor children). A disparate impact claim supports finding discrimination against a protected person even without an intent to discriminate against them, so long as the challenged practice has a disparate impact on a protected class of people.

The Texas Department of Housing and Community Affairs (Texas) was charged with allocating federal tax credits for low-income housing in a manner that disproportionately affected minorities. The Inclusive Communities Project is a non-profit that promotes integration in the Dallas area. Texas argued that disparate impact claims should not be allowed under the Act because the language of the statute does not support disparate impact claims. Several of the Supreme Court Justices raised questions about the 1988 amendments to the Act that created exceptions to disparate impact liability, pointing out that the exceptions would not make sense unless disparate impact claims were allowed under the Act. U.S. Solicitor General Don Verrilli appeared on behalf of the United States to support the Project and urged the Court to consider HUD regulations, which interpret the Act to allow disparate impact claims.

The Department of Housing and Urban Development (HUD) issued the following statement about the case:

Today, the Supreme Court of the United States considered an important legal doctrine that is critical to HUD’s ability to enforce the Fair Housing Act and to protect the rights of those whose housing choices would otherwise be limited because of their race, color, religion, national origin, disability, sex, or because they have children.  The landmark Fair Housing Act of 1968 prohibits housing discrimination and has been interpreted to prohibit housing practices that produce an unjustified discriminatory effect, regardless of whether there was any evidence of intent to discriminate.  HUD’s discriminatory effects rule did not create new law, rather formalized long-established agency practice and 40 years of judicial precedent from 11 appellate courts.  We cannot turn back the clock in the progress we’ve made fighting housing discrimination.  We now await the Court’s ruling.

A ruling in favor of disparate impact will make it easier to prove violations of the Act by not requiring proof of an intent to discriminate. Tough questions presented by the Court to both sides of the case during oral argument make it difficult to predict the outcome of the decision. An opinion is expected in June or July.


Emotional Support and Service Animals

Below is an article that was recently published in the Dallas/ Ft. Worth Community Associations Institute Chapter magazine, Community Contact, Summer 2014, which discusses animals and fair housing issues:

Serengeti Safari – The Hunt for Emotional Support and Service Animals

By Julie E. Blend, Esq.

Chances are an African safari in the Serengeti Plain will include sightings of lions, serval cats, and maybe even a pack of the endangered species, Wild African Dog. Could you take one home with you if you live in a no pet, or restricted breed community? Your dog or cat would have to jump through several hoops to be legal, the first of which is that you would need to have a disability. The rest depends on whether there is a link between a disability-related need and the animal’s function, and whether the animal is a reasonable accommodation. Even if your safari friend could qualify as a reasonable accommodation under fair housing laws, statutes and city ordinances that prohibit wild animals will also apply. Your best bet is to leave Serengeti wildlife intact and head to South Africa for a famous South African – bred miniature horse instead.   The horse may qualify as a service animal, or if you become very attached to it, possibly an emotional support animal.

Service Versus Emotional Support Animals

Are service animals and emotional support animals (ESA’s) the same? No. A service animal can only be a dog, and in certain circumstances, a miniature horse. The Americans with Disabilities Act (ADA) governs service animals and not ESA’s. ADA regulations define service animal as: “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability.” The animal does not need to be certified as a service animal. The Texas Human Resources Code also limits service animals to dogs. The ADA affords a disabled person the right to take their service animal in public places. ESA’s are not governed by the ADA and therefore, a disabled person only has a right to be accompanied by a service animal, and not by an ESA, in places of public accommodation.

ESA’s provide emotional support to a person with a psychiatric disability. They are not trained to perform specific assistance, and they are not limited to dogs and miniature horses. ESA’s, as well as service animals, are allowed under fair housing laws if they qualify as a reasonable accommodation. Fair housing laws protect persons with a disability, whether the disability is physical or mental, that substantially limits a major life function. The Fair Housing Amendments Act prohibits discrimination against disabled persons, including “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a person with a disability] an equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B).

No Pet Policies

In April 2013, HUD issued a memo (Notice FHE0-2013-01) that specifically addresses service and assistance animals. The memo expressly states that an assistance animal is not a pet, and therefore, rules adopted by associations with pet prohibitions or restrictions may not apply. As with any accommodation request, when an association receives a request for an occupant to keep a service or assistance animal, two questions arise: 1. Does the person have a disability? 2. Does the animal address a need related to the disability? The HUD memo asks, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability? If the answer to these two questions is yes, then the association must make an accommodation unless it is not reasonable to do so.

The third question becomes: 3. Is the accommodation reasonable? It is not reasonable if the animal would cause undue financial and administrative burden, or if it would fundamentally alter the nature of the association’s services. Furthermore, a request may be denied as unreasonable if the specific animal in question either poses a threat to the health or safety of others, or presents the potential for substantial property damage, that could not be significantly reduced by another reasonable accommodation. The HUD memo states that a denial of a request is only a denial of the specific animal itself, not its breed, size or weight. Breed, size and weight limitations may not be applied to an assistance animal. A finding of a threat of harm from an animal must be based upon: “objective evidence about the specific animal’s actual conduct – not on mere speculation or fear . . .and not on evidence about harm or damage that other animals have caused.” If the proposed animal is a breed known for attacks, such as a pit bull or Rottweiler, there cannot be an automatic disqualification based solely upon the breed.

As with any accommodation request, the memo explains that a housing provider is restricted as to what information can be requested. If the disability, or disability-related need for an assistance animal is readily apparent or known to the association, it may not ask the person for documentation (such as a blind person needing a guide dog). If the disability-related need is not apparent, then the association may request documentation from a physician or other mental health professional that the animal provides a service or assistance, such as emotional support, that alleviates an identified symptom of an existing disability. If the animal is allowed and the association charges a pet fee or deposit, the charge must be waived for the disabled person. If the animal causes damage, however, the owner will be responsible for repair expenses.

Breed Restrictions

What if the assistance animal is a pit bull? Some states prohibit breed specific legislation (BSL), including Texas. The same statute, Chapter 822 of the Texas Health & Safety Code, however, regulates dangerous dogs. Chapter 822 defines a dangerous dog as one that makes an unprovoked attack on a person, or commits an unprovoked act that causes a person to reasonably believe that they will be attacked. Upon receipt of a report of an unprovoked attack or acts, animal control authorities may investigate to determine whether the dog is dangerous. Owners of dangerous dogs are required to register the dog as dangerous, keep the dog leashed or in a secure enclosure, and to purchase liability insurance. It is important to check local animal control ordinances as well.

Although a pit bull could qualify as a service animal or ESA, do not forget question number 3: Is the accommodation reasonable? An association must consider the health and safety of others. If the specific pit bull in question has made an unprovoked attack on a person, or been determined by a court to be dangerous, then the specific pit bull should not be allowed. To avoid a fair housing violation, consult legal counsel upon receiving an accommodation request.

Beware of Fair Housing Requirements

A recent federal court ruling in Florida emphasizes the need for a proper response to an accommodation request. Sabal Palm Condominiums Association filed a declaratory judgment lawsuit against the Fischer’s asking the court to determine whether Mrs. Fischer could keep her service dog. The Fischer’s counterclaimed against Sabal Palm, its president and attorney. Mrs. Fischer has multiple sclerosis and as a result is wheelchair bound. She provided documentation to the association that her trained service dog was necessary to help her with daily tasks. The association was not satisfied and requested that Mrs. Fischer turn over all of her medical and service animal records. Instead of allowing the dog, the association waited four months and filed the lawsuit. The court held that Sabal Palm and its president committed fair housing violations, even though they allowed the dog to stay during the pendency of the lawsuit.

The court acknowledged the trend of fake assistance animals, but noted that Mrs. Fischer is clearly disabled. The association was not entitled to all of her documents, as a request for information “need not be highly intrusive” when an obvious physical disability and need are sufficiently documented. A disabled person is not required to submit an express statement from a healthcare provider that they need a service dog – only proof of “the relationship between the disability and the need for the accommodation.” The court noted that information connecting the animal’s training with the symptoms of the disability would suffice. Mrs. Fischer submitted evidence that her dog’s training was specifically designed to help her with daily activities she could not perform due to her disability.

The court noted that failure to grant an accommodation by delaying a decision is a constructive denial of the request. The president was found liable as well because he personally contributed to the violation by voting against granting the accommodation and in favor of bringing the lawsuit. In addition, the court noted that property managers are subject to liability for fair housing violations. As for the attorney, the court let him out off because bad advice does not amount to unlawful discrimination. The case is still pending on the question of how much money will be awarded for actual and punitive damages.


Update Pool Rules in Preparation for Swim Season Fair Housing Compliance

A review of rules and regulations for pool usage is a must in preparation for swim season. Outdated pool rules may be in violation of fair housing laws.  Fair housing statutes at the state and federal level protect against familial status discrimination, which means families with children under the age of 18. Any rule entitled “Children,” raises a red flag to familial status discrimination and should be eliminated. Instead, the regulated activities should be incorporated under other existing rules without reference to age, or a rule for pool usage with no reference to children should be adopted.

Adult only swim time or pool usage has been construed as discriminatory.  Rules that address health and safety concerns and are not too broad are legal. A rule requiring adult supervision of children in the pool at all times is too broad.  The child under 18 could be a lifeguard (certification is available at age 15).  The child under 18 may be an excellent swimmer.  Instead, adopt a rule that requires adult supervision of a person without adequate swimming skills.  Someone over 18 may not have adequate swimming skills and may require supervision.

A minimum age requiring pool supervision is acceptable as long as it is tied to a health and safety concern. Some states have legislation addressing a minimum age, such as California, which has rules requiring supervision of anyone under the age of 14 with no lifeguard on duty.  Texas does not have a statewide age. Check with your city for any ordinances or rules.  For example, Plano requires that a person at least 16 years old must accompany anyone under the age of 7 at pools.   In Houston, anyone under the age of 8 must be supervised. Do not adopt rules that require a “parent” or “guardian” ’s supervision of children swimming, as other responsible persons are capable of supervision duties.

Fair housing laws also must be considered in regulating behavior in common areas as well.  Apply these same principles to avoid fair housing familial status discrimination with rules and regulations beyond pool usage.   An annual audit of governing documents is an effective way to maximize compliance.

Recent Familial Status Fair Housing Litigation Against Owners Associations

Two lawsuits were filed last month alleging fair housing violations related to owners association rules prohibiting children from certain outside activity.  In California, the Neri’s, homeowners, sued the Tennis Villas At Blackhawk Association along with its board members, and its management company and manager.  In Minnesota, federal authorities sued Greenbrier Village Homeowners Association, and its management company and manager.


The Neri lawsuit alleges that the association’s prohibition against trick-or-treating for Halloween, and prohibition against children playing in the common areas violate federal and state fair housing laws, state civil rights and unfair competition statutes, and constitutes negligence.  The plaintiffs seek money damages, including punitive damages, and injunctive relief requiring the defendants to provide equal housing opportunities to all, regardless of familial status.  The case is pending in federal court in the Northern District of California, Oakland Division.


The Greenbrier Village lawsuit alleges a pattern or practice of discrimination due to treating children less favorably in the use of common areas, and preventing children access to common areas by requiring that children be supervised at all times while playing outside.  The lawsuit sues on behalf of a great-grandmother and her two great-grandchildren, the great-grandmother’s deceased partner, and other aggrieved persons.  Relief requested against the defendants includes injunctive relief, damages, and civil penalties.  The lawsuit was the result of a HUD complaint filed by the great-grandmother and a subsequent HUD investigation.


Earlier this year in Minnesota as well, HUD settled a familial status discrimination claim with a condominium association, its management company and manager.   The association and management agreed to pay over $ 40,000 to resolve allegations that the association refused to allow children under the age of 18 to live at the condominium project.  The HUD charge stated that the association failed to maintain the requirements for an exemption under the Housing for Older Persons Act.  An owner had filed a HUD complaint after the association fined and sued him to prevent his children from living with he and his wife.  Under the settlement, $ 30,000 is to be paid to the owner, and $ 12,200 paid to the owner’s attorney.


HUD Issues Memo Regarding Assistance Animals for People with Disabilities

HUD recently issued FHEO Notice FHE0-2013-01, Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs.  The memo expressly states that an assistance animal is not a pet, and therefore, rules adopted by associations with pet prohibitions or restrictions may not apply.  Although dogs are primarily assistance animals, other animals may qualify as an assistance animal.

Once a housing provider receives a request for reasonable accommodation to have an assistance animal, two questions must be answered:

(1)  Does the person seeking to use and live with the animal have a disability — i.e., a physical or mental impairment that substantially limits one or more major life activities?

(2)  Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?

If the answer to both questions is yes, the housing provider must permit the assistance animal in all areas of the premises without restriction, including the payment of any fee (pet deposit).  Exceptions apply if allowing the animal would cause undue financial and administrative burden, or fundamentally alter the nature of the housing provider’s services.   If the specific animal in question is a health and safety threat to others, or would cause substantial damage to the property of others that cannot be reduced by another accommodation, the request may be denied.  This means the specific animal itself, not the breed of the animal, or its size or weight.

The housing provider is restricted as to what information can be requested from the person making the request.  If the disability, or disability-related need for an assistance animal is readily apparent or known to the provider, it may not ask the person for documentation.  The memo gives the example of a blind person needing a guide dog as a disability and a disability-related need that is readily apparent.  If the disability-related need is not apparent, then the provider may request documentation from a physician or other mental health professional to show the assistance animal provides emotional support that alleviates an identified symptom of an existing disability.

In addition to HUD’s explanation of housing provider requirements under the Fair Housing Act and Section 504 of the Rehabilitation Act to provide reasonable accommodations regarding assistance animals, the memo also explains the revised definition of service animal under the Americans with Disabilities Act and obligations when multiple nondiscrimination laws apply. Read the memo in its entirety here: