How to Avoid Discrimination Complaints When Dealing with Environmental Concerns

October 16, 2018

According to federal reports issued in June 2018, HUD lacks adequate oversight of lead-based paint in the public housing and Housing Choice Voucher programs. The reports, issued by the HUD Office of Inspector General and U.S. Government Accountability Office (GAO), described disjointed communication between HUD and the local housing authorities it oversees. Cases of children poisoned by lead aren’t always identified and followed up on in a timely manner.

The inspector general concluded that HUD failed to ensure that the nation’s 3,800 public housing authorities properly identified and eliminated lead hazards, “thus increasing the potential of exposing children to lead poisoning due to unsafe living conditions.” And the GAO report also faulted HUD for failing to hold housing authorities accountable “consistently and in a timely manner” and for relying too heavily on the honor system.

The audit reports came as federal prosecutors and the public accused the New York City Housing Authority of failing to inspect for lead-based paint and to remove it or clean it up where it’s found, while falsely telling HUD it had done so. At the time, the city’s department of health said 820 children younger than 6 residing in public housing were found to have elevated levels of lead in their blood between 2012 and 2016.

While lead poisoning tops the list of environmental hazards receiving attention from HUD, there are other ones such as mold and bedbugs that are also health and safety threats for your residents. Failure to comply with various laws, regulations, and health and safety codes applicable to your site can lead to costly remediation expenses, fines, or penalties.

At the site level, if you’re not careful when dealing with environmental concerns, you could draw unwanted attention from prosecutors and agencies. You could even trigger fair housing complaints from residents based on the presence of hazardous substances, the way you handle reported problems, or the methods used to remedy the offending situation. We’ll give you five rules to help you abide by fair housing law when dealing with environmental concerns.

What the Law Says

The Fair Housing Act (FHA) prohibits discrimination in housing because of race, color, religion, sex, national origin, familial status, or disability. The law targets discriminatory practices by making it unlawful to deny housing—or to discriminate in the terms and conditions of the rental—because of race, disability, or any of the other protected characteristics. In particular, it’s unlawful to fail or delay maintenance or repairs of rental dwellings because of race, color, religion, sex, familial status, national origin, or disability, according to HUD regulations.

When dealing with environmental hazards, keep in mind that fair housing law protects those most at risk, including young children, pregnant women, and individuals with disabilities. For example, you could face a fair housing complaint if you turn away households with young children or pregnant women—even in an effort to minimize exposure to environmental hazards. (It’s important to note, however, that the FHA bans discrimination based on familial status except in sites that qualify for an exemption under strict rules governing housing for older persons.)

With regard to the FHA’s disability provisions, you must grant requests for reasonable accommodations or reasonable modifications when necessary to enable an individual with a disability to fully enjoy use of the property. Examples of reasonable accommodations with respect to environmental concerns include changing the type of paint, cleaning products, or pesticides used in or around a resident’s unit. Examples of reasonable modifications include removal of carpeting or installation of air purifiers, at the resident’s expense, if necessary to alleviate problems caused by exposure to allergens and other environmental concerns.

FOLLOW FIVE RULES

Rule #1: Don’t Exclude Families with Children to Avoid Lead-Based Paint Exposure

Federal law requires multifamily housing communities built before 1978 to warn tenants about the hazards of lead-based paint. The Disclosure Rule, published on March 6, 1996, specifies the types of information that owners must give to applicants prior to signing their leases [40 CFR part 745, subpart F and 24 CFR part 35, subpart A, Requirements for Disclosure of Known Lead-Based Paint and/or Lead-Based Paint Hazards in Housing]. These requirements apply to all properties built prior to Jan. 1, 1978, with certain exemptions established by regulation [HUD Handbook 4350.3, par 6-8(A)].

With all the news reports of housing authorities and owners facing liability for lead poisoning in children, you may be tempted to steer families with young children or pregnant women away from your site, especially if your site was built before 1978. However, under fair housing law, it’s unlawful to exclude families with young children or pregnant women from rental housing—even if motivated by concerns about health and safety risks posed by environmental hazards [HUD Handbook 4350.3, par 6-8(A)(2)].

Editor’s Note: Lead-based paint requirements that must be met during the life of the site are discussed in Handbook 4350.1, Multifamily Asset Management and Project Servicing. These requirements include:

Visual assessments to identify deteriorated paint or (for assistance over $5,000 per unit annually) risk assessments to identify lead-based paint hazards;
Paint stabilization or (for assistance over $5,000 per unit annually) interim controls with clearance testing when appropriate;
Ongoing paint maintenance and (for assistance over $5,000 per unit annually) re-evaluation every two years to identify hazards;
Notification of tenants about the actions above; and
Special actions when a child under 6 years old is reported to have high blood lead levels [HUD Handbook 4350.3, par. 6-8 (B)(2)].

Rule #2: Don’t Write Off Environmental Concerns

Don’t dismiss complaints about environmental concerns. In general, the FHA does not impose liability for failure to address complaints about mold or other environmental problems, but it’s important to listen closely to determine whether complaints voicing environmental concerns are related to a disability.

If an environmental complaint comes from an individual with a disability, then you should take it seriously. If it appears that the request reflects a disability-related need for an exception to your policies, practices, or services, then you should evaluate the complaint under your standard policy governing reasonable accommodation requests. Depending on the circumstances, you may request documentation if either the resident’s disability or his disability-related need for the requested accommodation isn’t obvious or apparent.

Rule #3: Evaluate Requests Related to Chemical Sensitivities

Though it’s a matter of controversy among medical experts, a 1992 HUD memo recognizes multiple chemical sensitivity (MCS) and environmental illness (EI) as disabilities under the FHA. In contrast to common allergies, which wouldn’t qualify as a disability, HUD says that MCS and EI are conditions that involve an extreme hypersensitivity or allergic reaction to a number of different common substances. Since they may involve a wide array of bodily impairments that limit an individual’s ability to breathe, care for herself, and other major life activities, MCS and EI could satisfy the FHA’s definition of “disability,” according to HUD.

Because of the law’s broad definition of “disability,” the FHA may apply to claims of chemical sensitivity even if a resident’s condition doesn’t amount to a qualifying impairment. A community could face liability under the FHA for claims by a resident that she was subjected to discriminatory treatment because she was “regarded as” having a disability.

Rule #4: Consider Disability-Related Requests for Green Alternatives to Conventional Products

Fair housing rules may require you to address objections to chemicals used in conventional products that don’t cause problems for most people, but may trigger health problems in people who have disabilities. Chemicals or fumes from a variety of products commonly used in cleaning, painting, or pest control operations may aggravate symptoms for individuals with disabilities, particularly those with breathing problems or chemical sensitivities that may make any level of exposure dangerous.

Just because a person has a disability, however, it doesn’t mean that you must grant a request to use alternatives to your standard products. In cases like these, however, it’s a good idea to get legal advice to figure out how far you must go to address a disabled resident’s concerns. A case from New York, involving green alternatives to the chemicals used to exterminate bedbugs, shows how complicated it can be.

In February 2017, a New York City housing court judge denied a landlord’s request to evict a resident for unreasonably refusing to grant access to remediate a problem with bedbugs in her unit. The case dates back to 2014, when the landlord first filed for eviction, alleging that the resident, citing medical reasons, refused entry into her unit for the bedbug treatment. The landlord allegedly offered alternative treatments that would not affect her condition, but her continued refusal to allow treatment had allowed the infestation to spread into other units.

After a trial, the judge ruled that the resident had a qualifying disability under city law, which provided her with greater protection than the federal and state laws on the unique facts presented. She had a respiratory condition that flared up when she was exposed to certain environmental elements, including the chemicals used in specified extermination treatment methods.

Nevertheless, her reasonable accommodation claim failed. The evidence showed that, in response to her accommodation requests, the landlord attempted, in two different ways, to accommodate her special needs. In 2014, the landlord’s contractors exterminated the unit using nonchemical means, but it was unsuccessful to remove the problem. The landlord also offered to temporarily move her while it used a chemical process, but she declined.

Ultimately, the court declined to order her eviction, ruling that the evidence was inconclusive to determine whether the use of a nonchemical bedbug extermination in her home, if properly prepared, would be ineffective or if the infestation was so severe that the chemical bedbug extermination treatment had to be used. The court ordered the landlord to exterminate again using the nonchemical means deemed to be most effective by its contractor, or if the resident chose, to use chemical means as long as the landlord relocated her and her family until it was safe for them to return [2 Perlman Drive, L.L.C. v. Stevens, February 2017].

Rule #5: Take Complaints About Secondhand Smoke Seriously

Secondhand smoke is a common source of environmental complaints. As of August 2018, all public housing agencies were required to implement a smoke-free policy banning the use of prohibited tobacco products in all restricted areas.

According to the rule, restricted areas include all public housing living units; indoor common areas in public housing; public housing agency administrative office buildings; and all outdoor areas up to 25 feet from the public housing and administrative office buildings. In addition, PHAs may, but are not required to, further restrict smoking to outdoor dedicated smoking areas outside the restricted areas, create additional restricted areas in which smoking is prohibited (for example, near playgrounds), or make their entire grounds smoke-free.

If you have a privately owned HUD-assisted site, regardless of whether or where smoking is allowed, you should pay attention to complaints from residents who claim disability-related problems with exposure to secondhand smoke. Under fair housing law, you must consider a reasonable accommodation request to reduce exposure to secondhand smoke, when necessary to enable an individual with a disability to use and enjoy the property.

Follow your standard policies and procedures to determine whether the resident has a disability that makes her susceptible to the effects of secondhand smoke. In general, an individual is entitled to a reasonable accommodation or modification when there is a clearly identifiable disability-related need for the requested accommodation or modification. Merely being annoyed by secondhand smoke doesn’t give the resident any special rights under fair housing law.

Unless the resident has an impairment that’s obvious or apparent, you don’t have to take her word for it. You’re entitled to request verification from a credible source, such as a health care provider, that she qualifies as an individual with a disability under the FHA—that is, she has a physical or mental impairment that substantially limits one or more major life activities. Such determination must be made on a case-by-case basis, depending on the nature of the resident’s impairment and the severity of her reaction to secondhand smoke.

If you determine that the resident has a disability-related problem with exposure to secondhand smoke, then the next hurdle is deciding what to do about the accommodation request. In general, fair housing law doesn’t require communities to grant an accommodation request unless it’s reasonable—that is, it doesn’t impose an undue or financial and administrative burden on the site or would fundamentally alter the nature of the site’s operations. Though sites may reject unreasonable requests, HUD says that they should do so only after engaging in an “interactive process” to discuss whether there’s a reasonable alternative that would effectively address the resident’s disability-related needs without excessively burdening the site.

Topics

Feature