This year marks the 40th anniversary of the Fair Housing Act. Enacted as Title VIII of the Civil Rights Act of 1968, it prohibits discrimination in the sale or rental of a home on the basis of race, color, religion, or national origin. The measure was signed into law one week after the assassination of Dr. Martin Luther King Jr., memorializing his civil rights work.

The Fair Housing Act was amended 20 years later, in 1988, in order to grant protected class status to families with children and people with disabilities. These amendments required that multifamily properties of four or more units built for first occupancy on or after March 13, 1991, be designed to allow access to the disabled.

The goal of providing fair housing to the disabled community has been embraced by the multifamily industry. Many firms conduct extensive fair housing training programs for their employees and construction teams. However, a recent increase in legal activity suggests that now may be a good time for multifamily firms to review and update their internal programs.

Indeed, apartment owners must fully understand their obligations under the law—navigating the veritable minefield that surrounds fair housing issues can be tricky. Here, the National Multi Housing Council identifies five of the most important questions facing the industry today about accessible housing.

1 Why is fair housing such a hot-button issue today? Whether the issue is lead in toys or inaccessible housing, litigation has a way of raising awareness. Ultimately, the courts will determine the legitimacy of such complaints, but until clear lines are drawn, nonprofit advocacy groups and state and federal agencies have placed the pursuit of accessibility violations high on their agendas.

According to the U.S. Department of Housing and Urban Development (HUD), more than 10,000 housing discrimination complaints were filed in 2007; 43 percent of them alleged discrimination against persons with disabilities. The U.S. Department of Justice (DoJ) also conducted a record number of housing discrimination investigations in 2007, filing 30 lawsuits and obtaining settlements requiring the payment of more than $5 million in damages to victims of discrimination. DoJ also filed six accessibility cases, settled seven others, and obtained seven favorable summary judgments in two accessibility cases.

What's more, since 2004, at least 10 large national multifamily builders have been sued by the Equal Rights Center, a Washington, D.C.-based civil rights group, for fair housing violations. This is in addition to the many cases pending at HUD and the DoJ, as well as those filed by private plaintiffs and state and local agencies.

2 Must all multifamily properties and units be accessible?

Jeanne McGlynn Delgado is vice president of business and risk management policy for the National Multi Housing Council in Washington, D.C.
Jeanne McGlynn Delgado is vice president of business and risk management policy for the National Multi Housing Council in Washington, D.C.

No. Only “covered properties” must comply with the design and construction requirements. This includes any multifamily property of four or more units that was built for first occupancy on or after March 13, 1991. If that property has an elevator, all units must be in compliance; if not, then only ground-floor units must be accessible. [Note: All owners must make reasonable modifications or accommodations when necessary to allow equal access to a unit.]

The seven features required by law: accessible building entrance on an accessible route; accessible and usable public and common areas; usable doors; accessible routes into and through covered units; accessible locations of light switches, electrical outlets, thermostats, and other controls; reinforced walls in bathrooms for later installation of grab bars; and usable kitchens and bathrooms. These requirements seem straightforward, but the complicated construction process presents many challenges to property owners trying to balance the requirements of accessible design, building codes, and general safety issues.

This is further complicated by the varying interpretations over minimum requirements. The legislative language in the Fair Housing Act is the sole source for what constitutes “mandatory minimum” design requirements, but it lacks specificity. HUD has written guidelines and a design manual (revised in 1988) to provide builders with a way to achieve compliance, but they also recognize that builders can use any reasonable design to deliver housing that meets the requirements. Unfortunately, these documents and other stated “safe harbors” are being applied as minimum standards in enforcement actions and are, thus, at odds with the language of the law.

3 Who can file a lawsuit? Virtually anyone. Complaints do not always come from the victims of discrimination. Instead, anyone who believes a disabled party may be victimized by a discriminatory housing practice can file a complaint.

Every complaint brought to or initiated by HUD is investigated, and conciliation is attempted through a dispute resolution process. If that fails, HUD will issue a finding on the merits of the case. If there is in-sufficient evidence, HUD may dismiss the complaint. If evidentiary support is found, however, HUD will issue a charge, and the case will likely be argued before an administrative law judge. It is important to note that the Fair Housing Act and similar state laws require the agencies to attempt to resolve every case through conciliation.

The DoJ, likewise, also can file accessibility lawsuits. This happens in two instances: 1) where there is reason to believe that there is a “pattern or practice” of discrimination (i.e., the actions were not an isolated case), or 2) where a denial of rights to a group of persons raises an issue of general public importance. In most accessible housing cases, the DoJ alleges both.