The Journal of The DuPage County Bar Association

Back Issues > Vol. 26 (2013-14)

“I Need a Reasonable Accommodation To Request a Reasonable Accommodation”: Fair Housing Rights of Tenants
With Mental Disabilities in Subsidized Housing
by Kylin E. Fisher

For a person with a mental disability,1 the ability to remain in stable housing can be one of the most important aspects of reaching her potential and remaining a functioning member of society.2 unfortunately, a mental disability can create a seemingly insurmountable barrier in reaching this goal. Approximately twenty-six percent of all sheltered homeless people have some form of severe mental illness.3 However, most of these individuals could remain in the community if appropriately housed, with only five to seven percent requiring institutionalization.4 when unsuitably housed, many individuals with mental illness experience more severe manifestations of their symptoms and struggle to retain control of their lives.5 The ability to access safe, affordable housing is crucial.

The Fair Housing Amendments Act of 1988 (FHAA) promised greater housing opportunities for people with disabilities.6 congress declared, “[p]rohibiting discrimination against individuals with handicaps is a major step in changing the stereotypes that have served to exclude them from American life. These persons have been denied housing because of misperceptions, ignorance, and outright prejudice.”7 The law forbids the denial of housing opportunities because of a physical and mental disability.8 People with disabilities have the right to the use and enjoyment of their homes, but for those with mental disabilities this right is often not the reality.1 Many tenants cannot find housing or face eviction from their homes because of needs or behaviors directly related to their disabilities.2 The FHAA’s legal requirements are disconnected from the day-to-day reality of people with mental disabilities.3 This is particularly true for tenants of subsidized housing. Because tenants of subsidized housing cannot afford a market rate unit, subsidized housing is often the last opportunity before becoming homeless.4 Public housing authorities (PHA) manage and control most subsidized units.5 In larger cities, the PHA can be a huge bureaucratic agency with thousands of employees.6 This bureaucracy includes employees of the housing authority and contracted agencies that manage properties.7 In Chicago, the housing authority serves more than 50,000 households.8 Eligible families can be wait-listed for years.9 The sheer number of tenants and applicants makes it easy for individuals to fall through the cracks.

Legal Standards under the FHAA and Other Federal Regulations. In 1988, congress defined people with disabilities as a protected class for purposes of housing discrimination.10 In passing the FHAA, congress intended to make a “clear pronouncement of a national commitment to end the unnecessary exclusion of persons with handicaps from the American mainstream.”11 The FHAA prohibits discrimination “against any person in the terms, conditions or privileges of sale or rental of a dwelling, or in the provision of services of facilities in connection with such a dwelling because of a handicap.”12 Due to the variety of disabilities and the wide array of barriers to safe, affordable housing, congress intentionally wrote the statute with many open-ended definitions.13 In interpreting this broadly written statute, “generous construction” is needed, and appropriately given, in order to achieve “a policy that congress consider[s] to be of the highest priority.”14 The FHAA anti-discrimination policies apply to private and public landlords.15 Tenants and potential tenants of subsidized housing have additional protection under the federal Department of Housing and urban Development (HUD) regulations.16 HUD regulations cover all federally assisted PHAs.17 Part 9 of the HUD regulations clarifies what actions a PHA must take to accommodate tenants with disabilities.18 It also clarifies the FHAA standards that apply to all landlords, and increases the burden on PHAs to take steps to ensure that a tenant with a disability has an “equal opportunity to the uses and enjoyment of the dwelling.”19 The FHAA prohibits discrimination “against any person in the terms, conditions or privileges of sale or rental of a dwelling, or in the provision of services of facilities in connection with such a dwelling because of a handicap.”20 Under the FHAA, “handicap” is defined as “(1) a physical or mental impairment which substantially limits one or more of such person’s major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment, but such term does not include current, illegal use of or addiction to a controlled substance.”21 The statute states that “major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”22 This extremely broad definition takes into account a wide variety of disabilities confronted by the American population.

One of the most important tools in ensuring that people with disabilities have continuing access to safe, affordable housing is the “reasonable accommodations” requirement. Under the FHAA, unlawful discrimination includes “a refusal to make reasonable accommodations in rules, polices, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.”23 Most people think of reasonable accommodations in terms of the physically disabled, such as the widening of doors for wheelchair access and waiving a “no pet” policy for a service animal.24 These accommodations allow the person with a disability to access the dwelling.

Unfortunately, for many with a mental disability, the need for a reasonable accommodation often comes at a time of great conflict with the landlord.25 Behavior that is a direct result of the disability may violate the lease.26 In these cases, the request for a reasonable accommodation is a defense to an eviction proceeding.27 The accommodation may excuse the violation and allow the tenant to remain in the dwelling. This would be easiest when a violation is unlikely to happen again, such as an aggressive verbal outbreak during a transition to a new treatment plan. The same solution would be appropriate for minor lease violations, such as noise.

PHAs have an affirmative obligation to make all tenants aware of their rights under the FHAA.28 “The [PHA] shall provide a notice to each tenant that the tenant may, at any time during the tenancy, request reasonable accommodation of a handicap of a household member, including reasonable accommodation so that the tenant can meet lease requirements or other requirements of tenancy.”29 Many PHAs expressly recognize the requirement in their voluntary compliance agreements with HuD.30 It is particularly important that the PHA convey to the tenant that the reasonable accommodation can assist in meeting lease requirements.31 Even people living with disabilities often think of accommodation in terms of the physical environment and may not know how powerful the accommodation requirements are.

A reasonable accommodation is only required when the PHA has enough notice to consider the accommodation.32 It is the duty of the tenant to “request” the reasonable accommodation.33 “As a predicate to obtaining a reasonable accommodation in federally financed public housing, a disabled tenant must, if his landlord is not already aware, inform the landlord that he has a disability and must request some accommodation.”34 “To make a reasonable accommodation request, no ‘magic’ words are required.”35 A request can simply inform the “landlord that the tenant is a qualified handicapped person, and that the tenant is currently being denied an equal opportunity to use and enjoy a dwelling.”36 In making the request, the tenant is not required to make the request in writing or cite any legal standard.37 The landlord cannot deny a reasonable accommodation request because the tenant did not provide evidence of the disability, or because the connection between the request and the disability is unclear in the initial request.38 “If a landlord is skeptical of a tenant’s alleged disability . . . it is incumbent upon the landlord to request documentation or open a dialogue.”39 The landlord may ask for additional proof, but the landlord cannot create an unreasonable burden by severely limiting the possible sources of proof that the tenant may use to demonstrate the disability.40 The tenant need not state the exact accommodation that would be appropriate. Courts recognize that requesting a reasonable accommodation should be an “interactive process.”41 Creating an accommodation that will ensure an equal opportunity and still be reasonable requires knowledge of the disability and possible changes to the status quo. This information is naturally divided between the parties. The tenant has the greatest understanding of his or her own disability and limitations. In the public housing context, the landlord has information about the abilities of the entire PHA. The landlord may have information about possible services or other buildings that would benefit the tenant.

Once notice is given, the burden is on the landlord to do an individual evaluation of the request. For a private landlord this is a fairly basic cost/benefit analysis of the burden to the landlord and the benefit to the tenant.42 For a federally funded PHA, the standard for what would be unreasonable is different.43 “[A] reasonable accommodation is required where there is a causal link between the disability for which the accommodation is requested and the misconduct that is the subject of the eviction” or other barrier to remaining housed.44 Because subsidized housing is housing of last resort, displacement heavily burdens the tenant.45 “For all aspects of the lease and grievance procedures, a handicapped person shall be provided reasonable accommodation to the extent necessary to provide the handicapped person with an opportunity to use and occupy the dwelling unit equal to a non-handicapped person.”46 Therefore, mere cost or inconvenience is an unacceptable reason for the PHA to deny an accommodation.

The FHAA provides an exception to private and public landlords’ obligation to grant a reasonable accommodation. “Nothing in this subsection requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.”47

The House Committee Report compares the exception to §504 Rehabilitation Act, which governs programs and activities receiving federal financial assistance.48 Under §504, an “otherwise qualified handicapped individual” may not be subjected to discrimination based on his or her handicap.49 “An individual is not otherwise qualified if . . . he or she would pose a threat to the safety of others, unless such threat can be eliminated by reasonable accommodation.”50

The House Committee Report also cited School Board of Nassau County v. Arline, in explaining how to apply the exception.51 In Arline, a teacher who had suffered several relapses of tuberculosis was determined to be a “threat” to the safety of others in the school.52 Her condition was a disability because it limited her ability to work.53 The court held if a person was “otherwise qualified” under the definition of a handicapped individual, the question was “whether the employer could reasonably accommodate the employee.”54

The legislative history also shows the House rejected a more sweeping provision than that adopted; it would have excluded “a category of individuals with disabilities from the [antidiscrimination] protections of the [FHAA].”55 Congress believed only the most severe cases of endangerment should deprive someone of a place to live.56 The House committee noted: “[a]lthough the committee believes it extremely unlikely that the tenancy of an individual with handicaps would ever pose a direct threat to others, such that the reasonable accommodation requirement would be necessary to eliminate the threat, the requirement exists for those situations in which it might be necessary.”57

While “direct threat” is not defined by the FHAA, its regulations do provide a definition.58 “Direct threat’ means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.”59 HUD has made clear that its policies require federally funded housing programs to comply with the statements within the FHAA legislative history.60 A PHA cannot evict a tenant for being a threat to others if there is an action that the PHA can take to minimize the threat to an acceptable level.61

Stereotypes or generalizations of people with the same or similar disabilities cannot form the basis for denying a reasonable accommodation.62 In determining whether an individual poses a direct threat to the health or safety of others, the agency must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures will mitigate the risk.63

The PHA must consider the individual actions, behaviors, and needs of the tenant in question.64 Furthermore, it is also required to work with the tenant, through a dialog, to discover what accommodations could minimize the threat the tenant causes.65 If the tenant initially provides an unfeasible course of action, the PHA must still explore other possible options.66

The burden is not on the tenant to propose the perfect accommodation that would eliminate the threat to others.67 If the PHA wants to evict a tenant because the tenant’s disability creates a threat, the PHA must show that no accommodation could make the tenant a non-threat.68 “The [FHAA] requires [a PHA] to demonstrate that no ‘reasonable accommodation’ will eliminate or acceptably minimize the risk [the tenant] poses to other residents … before they may lawfully evict him.”69

The Massachusetts Supreme Court held the Boston Housing Authority to this standard in Boston Hous. Auth. v. Bridgewaters.70 In Bridgewater, a tenant with severe bipolar and borderline personality disorders assaulted another tenant causing hospitalization and temporary paralysis of his right side.71 The assault occurred after the defendant’s doctor removed him from medication because of negative side effects.72 By the time of trial, the defendant was “in a better situation” with a stable treatment plan including medication and psychiatric support.73

Before a federally assisted public housing authority such as the [Boston Housing Authority] may lawfully evict a disabled tenant who requests a reasonable accommodation as posing a threat to others, it must either demonstrate the failure of an accommodation instituted at the request of the tenant, or demonstrate that no reasonable accommodation will acceptably minimize the risk the tenant poses to other residents. Disabled tenant who requests a reasonable accommodation as posing a threat to others, it must either demonstrate the failure of an accommodation instituted at the request of the tenant, or demonstrate that no reasonable accommodation will acceptably minimize the risk the tenant poses to other residents.74 

The standard that “once a reasonable accommodation had been requested, ‘the burden is on the landlord’ to ‘demonstrate that no reasonable accommodation will eliminate or acceptably minimize any risk’ that tenant ‘imposes on other residents’” goes a long way in protecting tenants with mental disabilities.75  The intent of the FHAA was to allow people with physical and mental disabilities to find safe, affordable housing in the community.76 The direct threat standard shows the extent that congress and HUD believe accommodations must be made for individuals with disabilities. 

Conclusion. Safe, affordable housing is a necessity for all people. Individuals with mental disabilities who have stable housing are less like to be hospitalized, visit the emergency room, or be arrested.77 Protecting individuals’ access to affordable housing is the only way to insure that individuals with mental disabilities can continue living within and being a part of the larger community.78 Protecting tenant’s rights is more important in subsidized housing because subsidized housing is housing of last resort.79 When the safety net of subsidized housing fails, there is nothing to prevent homelessness.80 The FHAA and HUD regulations impose a higher standard on PHAs than on private landlords. The law requires a wide variety of reasonable accommodations and an interactive process between the parties. PHAs cannot justify denying a reasonable accommodation with cost. They must also meet a higher burden in showing that no accommodation could alleviate a threat caused by a tenant. These requirements are vital because they could make all the difference for tenants with mental disabilities on the verge of homelessness. 

1 Meghan P. Carter, How Evictions from Subsidized Housing Routinely Violate the Rights of Persons with Mental Illness, 5 NW J. l. AND SOC. POL’Y 118 (2010).
2 Id.
3 Id.
4 Susan J. Popkin, No Simple Solution: Housing CHA’s Most Vulnerable Families, 1 NW J. l. ANd SOc. POl’y 148,160 (2006).
5 Hud’s Public Housing Program, U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, http://portal.hud. gov/hudportal/Hud?src=/topics/rental_assistance/phprog (last visited Feb. 25, 2012).
6 The Plan for Transformation, THE CHICAGO HOUSING AUTHORITY, transformation/22.php (last visited Feb. 25, 2012).
7 Id.
8 About CHA, THE CHICAGO HOUSING AUTHORITY, http:// (last visited  Feb. 25, 2012).
9 “CHA’s property management firms have already started screening applicants from the most recent Wait list. However, it may take up to five to seven years before you get a call to be screened.” Family Wait List Lottery FAQs, THE CHICAGO HOUSING AUTHORITY, pages/family_wait_list_lottery_faqs/76.php (last visited feb. 25, 2012).
10 H.R. REP. No. 100-711 at 18.
11 Id.
12 42 U.S.C. § 3604 (West).
13 “[T]he definition of handicap does not include a list of specific diseases and conditions that constitute physical or mental impairments because of the difficulty of ensuring the comprehensiveness of any such list and because some conditions covered under the definition of handicap may not even been discovered or prevalent in the population at the time of passage of legislation.” H.R. REP. No. 100-711 at 22.
14 Trafficante v. Metro. Life Ins. co., 409 U.S. 205, 211(1972).
15 42 U.S.C. § 3604 (West).
16 24 c.f.r. § Part 9
17 Id.
18 Id.
19 Id.
0 42 U.S.C. § 3604 (West).
21 42 U.S.C. § 3602 (West).
22 42 U.S.C. § 12102 (West).
23 42 U.S.C. § 3604 (West).
25 carter, supra note 9.
26 Id.
27 Boston Hous. Auth. v. Bridgewaters, 898 N.E.2d 848 (mass. 2009).
28 24 c.f.r. § 966.7.
29 Id.
31 24 c.f.r. § 966.7.
32 Beck v. Univ. of Wis. Bd. of regents, 75 f.3d 1130, 1135 (7th cir. 1996).
33 Id.
34 Bridgewaters, 898 N.E.2d at 857.
35 Id. at 859.
36 Id. at 857.
37 Id.
38 Jankowski lee & Assoc. v. city of Milwaukee, 91 f.3d 891, 895 (7th cir. 1996).
39 Id.
40 24 c.f.r. § 966.
41 Beck, 75 f.3d at 1135.
42 42 u.S.c.A. § 3604 (West).
43 24 c.f.r. § 966.
44 Bridgewaters, 898 N.E.2d at 860.
45 See, Popkin, supra note 12.
46 24 c.f.r. § 966.7.
47 42 u.S.c. § 3602(f )(9) (West).
48 H.r. rep. No. 100–711 at 28.
49 Id.
50 Id. (Emphasis supplied).
51 Id.
52 Sch. Bd. of Nassau county, fla. v. Arline, 480 u.S. 273, 276 (1987).
53 Id. at 282.
54 Id. at 288.
55 H.r.rep. No. 100–711at 28.
56 Id.
57 Id.
58 24 c.f.r. § 9.131.
59 Id.
60 Id.
61 Id.
62 H.r.rep. No. 100-711 at 18; Bangerter v. Orem city corp., 46 f.3d 1491, 1504 (10th cir. 1995).
63 24 c.f.r. § 9.131.
64 H.r.rep. No. 100-711 at 18; Bangerter v. Orem city corp., 46 f.3d 1491, 1504 (10th cir. 1995).
65 Beck, 75 f.3d at 1135.
66 Id.
67 24 c.f.r. § 9.131.
68 Id.
69 roe v. Sugar river mills Assoc., 820 f. Supp. 636, 640 (d.N.H. 1993).
70 Bridgewaters 898 N.E.2d at 851.
71 Id.
72 Id.
73 Id. at 852.
74 Id. at 855.
75 Bridgewaters 898 N.E.2d at 856.
76 H.r. rep. No. 100-711 at 24.
78 Id.
79 Popkin, supra note 12.
80 Id.

Kylin Fisher graduated from C h i c a g o – K e n t College of Law in May 2013 and sat for the July 2013 Illinois Bar Exam. She currently works at Robson and Lopez LLC, a consumer protection firm. She received her Bachelors of Environmental Design majoring in Design Studies and minoring in Mathematics from the University of Colorado – Boulder.

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