In this session, we'll look at the federal Fair Housing Act as it pertains to individuals with disabilities.

A number of civil rights laws apply to persons with disabilities. Persons with disabilities are entitled to the same kind of civil rights protections as other protected classes such as race, religion, national origin, or gender, as well as specific rights that apply to persons with disabilities.

Under the Fair Housing Act Amendments, disability is defined as:

  • Having a physical or mental impairment that substantially limits one (or more) major life activities and/or
  • Having a record of physical or mental impairment and/or
  • Being perceived by another as an individual with a physical or mental impairment.

Because of its broad, remedial scope, the FHA applies to nearly all forms of housing, with few limited exceptions. The act also applies to broad array of housing-related transactions, including the rental, sale, and financing of housing. This means that landlords, housing providers and banking institutions, among others, are covered by the FHA.

The Fair Housing Act

The 1968 Fair Housing Act is a federal act in the United States intended to protect the buyer or renter of a dwelling from seller or landlord discrimination.

The Fair Housing Act (FHA) states any person with a mental or physical disability cannot be turned away from housing with their certified service animal or emotional support animal. This includes buildings and apartments that have a “no pets” policy in place. Landlords and apartment managers are required to make a “reasonable accommodation” for both service and emotional support animals.

Reasonable accommodation means something that helps the person with a disability enjoy the same rights as someone who does not have one.

The Fair Housing Amendments Act of 1988

Signed by President Reagan in September 1988, the Fair Housing Amendments act has three broad purposes in relation to persons with disabilities:

  • To end segregation of the housing available to people who have disabilities;
  • To give people with disabilities greater opportunity to choose where they want to live;
  • To assure that reasonable accommodations be made to the individual needs of people with disabilities in securing and using housing.

A quick point about reasonable accommodations, as we’ll be discussing that in a later session. The landlord or rental agent cannot refuse to make reasonable accommodations in rules, policies, practices, and services to afford a person with a disability equal opportunity to occupy and enjoy full use of a unit.

What Does the Fair Housing Act Not Cover?

Even though you do have rights under the FHA, there are still situations in which a landlord does not have to comply with this Federal law. These include;

  • When the animal is too large for the accommodation; such as a horse or llama
  • Buildings that only have four or fewer units and the landlord lives in one of them
  • Single family house that is rented without a real estate agent

We note that state and local laws may offer additional fair housing protections, so interested parties should consult those as well.

Fair Housing Act Protected Classes

The FHA, to date, includes seven protected classes: race, color, religion, national origin, sex, disability, and familial status. This last term refers to the presence of at least one child under 18 years old, and also protects prospective tenants who are pregnant or in the process of adopting a child.

Who is disabled?

Again, under the guidelines of the FHA, an individual is considered disabled if they have a “physical or mental impairment (1) which substantially limits one or more major life activities; (2) a record of such impairment; or (3) being regarded as having such an impairment."

Items two and three are familiar to most.

Records of impairment might include physician’s notes or government-provided disability benefits from the VA or Social Security.

As to “being regarded as having such an impairment,” obvious diseases like cancer or ALS universally define one as having an impairment.

The definition of a disability is an impairment which substantially limits a major life activity; not possession of a specific diagnosis or disease.

Physical or Mental Impairment

The term “physical or mental impairment” includes, but is not limited to, such diseases and conditions as:

  • orthopedic limitations.
  • visual, speech and hearing impairments
  • cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis
  • cancer, heart disease, diabetes
  • HIV infection
  • Intellectual disability
  • Mental illness
  • drug addiction (other than illegal use of a controlled substance) and alcoholism.

Major life activities

We then draw your attention to item #1 which states, “a “physical or mental impairment (1) which substantially limits one or more major life activities.”

The following are a few of the life activities a "non-disabled" person would be reasonably expected to perform.

  1. Caring for oneself
  2. Performing manual tasks
  3. Walking
  4. Seeing
  5. Hearing
  6. Interacting with others [socially/communicating]
  7. Speaking
  8. Breathing [also affects walking]
  9. Learning- cognitive
  10. Sleeping
  11. Working
  12. Concentrating
  13. Eating

For the purposes of FHA disability determination, if any of the above are substantially limited due to either physical or mental impairment, then that individual is considered disabled.

Physical or mental impairment includes diseases that might come to mind, like orthopedic limitations or diabetes. But one should also consider grandma's age-related difficulty walking, her loss of hearing and declining vision, and any emotional illness that substantially limits a major life activity.

Illegal drug use

While heroin or cocaine use would, by definition, impair performance of life activities, recreational drug use is excluded from being considered a disability.

The definition of substantially limited

As is often the case, HUD leaves wiggle room in their definition of “substantially limited," which essentially compares one’s abilities of completing life tasks versus that of the average person.

It’s important to remember these limitations can be due to physical and/or mental impairments.

Given the broad definition, many of us may be considered disabled (according to HUD’s guidelines) and not even know it.

Readily apparent disabilities

One must consider the possibility of potential disabilities that are not readily apparent, without a presentation of overt physical symptoms, like:

  • Sleep
  • Concentration
  • communication-impaired

Disorder versus disease

By way of example we compare two conditions - PTSD and autism. PTSD, Post Traumatic Stress Disorder, is clinically a disorder.

Autism, on the other hand, is a disease.

For different reasons, both might share a substantial limitation of a major life activity, such as having a limited ability to communicate with others.

From HUD’s perspective, the agency is unconcerned about specific medical or mental health conditions. One does not carry more gravity than the other. What matters in designating a disability is whether it has compromised the ability to perform a major life activity, like communicating.

Protected health information

Federal law protects a consumer’s protected health information. Applicants are spared from giving up their privacy.

To qualify as disabled, one does not need to disclose medical or life situation details on a housing application.

Disabilities could arise from early childhood trauma, military experience, or a past life event. Whatever the case, the limitation merely needs to be noted, not the history or its details.

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