April 2013 Publication and Email Blast To Select Clients, By Jay B. Itkowitz -- Subscribe to Our Mailing List
On May 24, 2011 new regulations promulgated by the Equal Employment Opportunity Commission (“EEOC”), the regulatory body charged with implementing the Americans with Disabilities Act (“ADA”), went into effect broadening the scope of what could qualify as a disabling condition under the ADA. The EEOC drew its impetus from the ADA Amendments Act of 2008, which Congress passed in response to the prevalent trend of courts dismissing a high percentage of ADA employment discrimination cases in favor of the employer on the basis that the plaintiff did not suffer from a “disability” as defined under the ADA. According to the interpretive guidance to the new regulations, their intended effect is to shift the focus of the employers and fact-finders from the question of whether the plaintiff in fact suffers from a “disability” to whether the covered entities met their obligations in reasonably accommodating the complainant after engaging in an “interactive process”.
The passage of these new regulations also has implications for disability discrimination claims brought under the Fair Housing Act (“FHA”)  because courts and administrative judges routinely refer to ADA discrimination jurisprudence to inform decisions under the FHA. Therefore, housing providers may also face heightened liability by virtue of the broadened definition of what constitutes a “disability”. Thus, it behooves such parties to have in place a protocol designed to field requests for reasonable accommodation and to initiate an ongoing interactive process with the requesting party.
This article first discusses the definition of “handicap” under the FHA and considers how it may be impacted by the EEOC’s new regulation broadening the definition of “disability”. Next it will highlight the importance of the “interactive process” under the FHA’s scheme notwithstanding that neither the actual statute nor the implementing regulations expressly mention it as is the case with EEOC’s regulations under the ADA. Finally, it will conclude that housing providers should implement procedures to handle requests for reasonable accommodation that are responsive, designed to produce a thorough paper-trail, and contemplate accommodating a wider array of impairments.
Definition of “Disability”, a Moving Target
Pursuant to the FHA, housing providers are prohibited from, inter alia, refusing residency to disabled persons, or placing conditions on their residency, because those persons may require reasonable accommodations. Such discrimination includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” 
To show that a requested accommodation may be necessary, there must be an identifiable relationship, or nexus, between the requested accommodation and the individual's disability.
Thus, a housing provider will naturally want to determine whether the person requesting the accommodation suffers from a “disability”, or in the terminology of the FHA, a “handicap”. The statute and the corresponding regulation enacted by the Department of Housing and Urban Development (HUD), define an individual with a handicap as a person who (1) has a physical or mental impairment that substantially limits one or more major life activities, (2) has a record of such an impairment, or (3) is regarded as having such an impairment. 42 U.S.C. § 3602(h); 24 C.F.R. § 100.201. 
"Major life activities” include “… functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.” 
In determining whether the plaintiff suffers from a “disability”, courts and HUD’s administrative law judges routinely invoke precedent under both the ADA and the Rehabilitation Act, because of the statutes’ near identical language in defining the term. Thus, given this jurisprudence and the statutory overlap, the extent to which the respective implementing regulations inconsistently delineate the contours of a “disability”, yields a degree of unpredictability for the unwary housing provider.
For example, under HUD’s regulations, “major life activities” include “… functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.”  However, the ADA Amendments Act of 2008 expanded the list of major life activities to include, inter alia, “eating, sleeping, standing, lifting, bending, learning, reading, concentrating, thinking, communicating,” and impairments that affect “major bodily functions” such as “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” Given this expansion, the ADA apparently confers coverage on a much broader set of physical and mental conditions than what may be gleaned by reading HUD’s definition. Thus, where a plaintiff seeking relief under the FHA, alleged disability due to depression, the court looked to the ADA for guidance and found that it is not a “per se” disability, but rather a disability only when it “substantially limits” a “major life activity”.
Up until May 24, 2011, the analysis of whether a condition “substantially limits” a “major life activity” entailed asking whether such disability “severely restricted” the performance of activities that are “of central importance” to most people’s daily lives. As noted above, this formulation resulted in a high percentage of disability cases being dismissed in favor of the defendant and sparked the eventual passage of the ADA Amendments Act of 2008. Enacted pursuant to this statutory mandate, the EEOC’s final rule, effective as of May 24, 2011, provides that an impairment is a disability if it substantially limits a major life activity and, that to be “substantially limiting,” an impairment need not severely restrict performance of a major life activity.
As written, the rule provides little, if any, guidance on what would meet the “substantially limiting” threshold other than to say that it could be something less than a “severe restriction” of a major life activity. Because the rule is relatively new, there is sparse decisional history interpreting the new language. In one case involving a plaintiff who claimed that a concussion prevented her from standing for prolonged periods of time without hourly breaks over a period of three weeks, the court ruled that the statute’s use of “substantially limiting,” at minimum, excluded coverage for such minor and temporary impairments, irrespective of the new rule’s more inclusive language. However, beyond this baseline, it is difficult to speculate exactly how much less restricting a handicap has to be to fall short of a “severe” restriction but still qualify as a disability that “substantially limits” a major life activity. The boundaries will gradually be colored in as the rule and ADA Amendments Act are litigated. Nevertheless, one thing is clear given the intent behind both changes, which is that a much broader set of conditions will qualify as a disability because of the expansion of contemplated “major life activities” and the lower threshold in evaluating a “substantially limiting” condition. The inherent uncertainty of the current state of disability law coupled with the courts’ practice of referring to the ADA to evaluate a “disability”, strongly counsels in favor of housing providers adopting a well-organized and articulated interactive process of dealing with requests for reasonable accommodation.
The “Interactive Process” and the FHA
Neither FHA’s plain language nor HUD’s regulations mention the duty of a housing provider to engage in an interactive process. HUD’s interpretive guidelines are likewise silent on the issue. However, in a 2004 Joint Statement by the Department of Justice and HUD addressing reasonable accommodations under the FHA, the agencies admonished housing providers to engage in an open discussion with disabled individuals to explore alternative accommodations where the requested one is unreasonable. The statement further reads:
An interactive process in which the housing provider and the requester discuss the requester's disability-related need for the requested accommodation and possible alternative accommodations is helpful to all concerned because it often results in an effective accommodation for the requester that does not pose an undue financial and administrative burden for the provider. 
Thus, although not codified, the housing provider’s duty to engage in the interactive process is underscored by this Joint Statement and some courts have similarly interpreted the FHA as imposing such a duty given the Act’s intended purpose of eradicating discrimination in the housing markets and its similarities with the ADA. 
With the passage of the EEOC’s new rule that broadens the definition of “disability”, the incentive has never been greater for housing providers to implement procedures that facilitate an interactive process with the requesting party. Because it remains unclear exactly how much a disability must restrict a major life activity to be considered “substantially limiting”, the onus is on the housing provider to take the initiative and develop a thorough record of its inquiry and attempts to come up with reasonable accommodations. Indeed, failing to engage in such a process or thwarting its progress can raise an inference of bad faith or discriminatory intent, or, lead to per se liability. Therefore, insofar as cases involving an individual with a questionable request for accommodation may lead a housing provider to deny the request without much ado, it is precisely those cases that warrant the utmost attention and good faith effort to find a reasonable accommodation through the interactive process.
 Pub. L. No. 110-325, 122 Stat. 3553 (Jan. 4 2008).
 Lawrence D. Smith & Molly Hughes Cherry, The ADA Amendments Act of 2008: Practical Implications for Employers in 2012 and Beyond, 79 Def. Couns. J. 32, 32 (2012) (employers prevailed in 93% of ADA employment discrimination cases between 1998 and 2007) citing Amy L. Allbright, 2007 Employment Decisions Under the ADA Title I--Survey Update, 32 Mental & Physical Disability L. Rep. 335, 335 (2008).
 79 Def. Couns. J. at 33-4 (2012).
 42 U.S.C. §§ 3601-3631.
 “Due to the similarities between the statutes [ADA and FHA], we interpret them in tandem.” Tsombanidis v. W. Haven Fire Dept., 352 F.3d 565, 573 (2d Cir. 2003); see also H.U.D. on behalf of Joseph Archibald, Complainant v. Riverbay Corp. et. al, 11-F-052-FH-18, 2012 WL 1655364, at *11 (H.U.D. A.L.J. 2012) (referring to ADA discrimination cases to construe the term “disability”).
 “To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2 (o)(3) (2006).
 42 U.S.C. § 3604(f)(2).
 42 U.S.C. § 3604(f)(3)(B); City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 729 (1995); see also Joint Statement of the Department of Housing and Urban Development and the Department of Justice: Reasonable Accommodations Under the Fair Housing Act, May 17, 2004, found online at http://www.hud.gov/offices/fheo/library/huddojstatement.pdf (hereinafter “Joint Statement”).
 Lapid-Laurel, LLC. v. Zoning Board of Adjustment to Tp. Scotch Plains, 284 F.3d 442, 459 (3d Cir. 2002).
 But ‘handicap’ does not include current, illegal use of or addiction to a controlled substance (as defined in section 802 of Title 21).
 24 C.F.R. § 100.201(b).
 The ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity,” 42 U.S.C. § 12132. It further defines a disability as follows:
The term “disability” means, with respect to an individual--
(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102.
 The Rehabilitation Act states that “[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....” 29 U.S.C. § 794(a). The statute defines an individual with disability as follows:
…the term “individual with a disability” means any individual who--
(i) has a physical or mental impairment which for such individual constitutes or results in a substantial impediment to employment; and
(ii) can benefit in terms of an employment outcome from vocational rehabilitation services provided pursuant to subchapter I, III, or VI of this chapter…
29 U.S.C. § 705(20)(A). Subparagraph (B) then refers back to the ADA, 42 U.S.C. § 1202, to include that definition of disability for specific provisions of the Rehabilitation Act. Id.
 Regional Economic Community Action Program, Inc. v. City of Middletown, 294 F.3d 35, 46 (2d Cir. 2002) (“To demonstrate a disability under each of these statutes, a plaintiff must show: (1) a physical or mental impairment which substantially limits one or more major life activities; (2) a record of having such an impairment; or (3) that they are regarded as having such an impairment.”); Tsombanidis, 352 F.3d at 573 (2d Cir. 2003) (“Due to the similarities between the statutes [ADA and FHA], we interpret them in tandem.”).
 24 C.F.R. § 100.201(b).
 42 U.S.C. § 12102(2)(A) (2009).
 42 U.S.C. § 12102(2)(B) (2009).
 The ADA Amendments Act of 2008, 79 Def. Couns. J. at 34 (speculating that diseases and conditions such as “epilepsy, diabetes, cancer, hearing loss, depression, multiple sclerosis, mental retardation, Hepatitis B, muscular dystrophy, and dyslexia will now be disabilities automatically covered by the ADA.”).
 McCree v. Lexington Village Apartments, No. 08-14185, 2010 WL 931859, at *6 (E.D. Mich. 2010).
 Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002) (holding that critical inquiry for qualification as a disability is whether the impairment (a) prevents or severely restricts the performance of (b) activities “of central importance to most people's daily lives); Carruthers v. BSA Advertising, Inc., 357 F.3d 1213, 1217 (11th Cir. 2004) (holding that hand sprain was not a disability that severely restricted a major life activity); McNamara v. Tourneau, 496 F.Supp.2d 366, 375 (S.D.N.Y. 2007) (holding that temporary back and leg injury lasting approximately 8 weeks did not meet the “severely restricted standard).
 See supra at note 2.
 29 C.F.R. § 1630.2(g)(1)(ii).
 29 C.F.R. § 1630.2(j)(1).
 Clark v. Western Tidewater Regional Jail Authority, No. 2:11CV228, 2012 WL 253108 at *7 (E.D.Va. 2012).
 42 U.S.C. §3604(f)(3)(B) (2000); 24 C.F.R. § 100.204.
 Joint Statement, supra note 8 at p. 7.
 See Jankowski Lee & Assocs. v. Cisneros, 91 F.3d 891, 895 (7th Cir. 1996); Armant v. Chat-Ro Co., No. Civ.A.00-1402, 2000 WL 1092838, at *2 (E.D. La. Aug. 1, 2000); Riverbay Corp., 2012 WL 2069654 at *3 (“Respondents refuse to acknowledge that the lack of an interactive process at the decision making level led to a wrongful denial of Complainant's request”); but see Gretchen M. Widmer, We Can Work It Out: Reasonable Accommodation and the Interactive Process Under the Fair Housing Amendments Act, 2007 U.Ill.Rev. 761, 769-773, n. 75-77 (2007) (noting the split among the circuits on whether the FHA imposes a duty on housing providers to engage in the interactive process) citing, inter alia, Lapid-Laurel v. Zoning Bd. of Adjustment, 284 F.3d 442, 456 (3d Cir. 2002) (court declined to impose interactive process duty on municipality due to distinctions between housing and employment sectors).
 Riverbay Corp., 2012 WL 1655364 at *24 (imposing civil penalties for defendant’s blatant disregard for the interactive process); We Can Work It Out, 2007 U.Ill. Rev. at 774-777. (noting that many courts have held that an employer’s refusal to engage in an interactive process can lead to independent liability under the ADA and speculating that courts could well adopt a similar per se rule under the FHA given the overlapping jurisprudence).
Labels: Housing Discrimination