THE ENFORCERS Cross burnings, witness tampering, sex trafficking, human enslavement, and apartments that fail to meet accessibility requirements? All in a day's work for the U.S. Department of Justice, whose agents pursue alleged “pattern and practice” violations of federal accessibility laws under the Americans With Disabilities Act (ADA) and the Fair Housing Act (FHA). Supplementing efforts by their peers at the U.S. Department of Housing and Urban Development (HUD), DoJ agents have filed 79 lawsuits since enforcement authority was placed with the department in 1990.
Their latest suit? Alexandria, Va.-based multifamily REIT AvalonBay Communities, which was served with a lawsuit in August alleging accessibility violations at the company's 361-unit Avalon Chrystie Place in New York City. AvalonBay denied the allegations, arguing that Chrystie Place was built to comply with local building codes, which they consider a safe harbor under both federal and local acessibility laws. “Contrary to the [DoJ] allegations, Avalon Chrystie Place was designed and constructed, and is operated, with a view to full compliance with all accessibility codes and laws,” AvalonBay said in a statement.
DoJ is apparently nonplussed. “I hate to say that we have zero tolerance because that can be interpreted in a number of ways, including aggressiveness in pursuing cases,” says a high-ranking enforcement official within DoJ's civil rights division who spoke on the condition of anonymity. “But we are committed to vigorously enforcing the law … and I think we have been very successful in that endeavor.”
While HUD typically pursues individual fair housing complaints, DoJ handles larger cases that feature multiple complainants or allegations of multiple violations involving a class of victims. DoJ also has the authority to initiate its own investigations independent of any complaint. However, the agency has neither publicly announced nor will confirm or deny handling such “independent” fair housing cases.
The two agencies can also refer cases back and forth, although such instances are rare. One notable case: In 2000, HUD referred allegations of fair housing violations at eight Las Vegas properties owned and managed by Houston-based Camden Property Trust. That case was ultimately settled for nearly $2 million, the lion's share of which was devoted to retrofitting apartments to ensure compliance.
Attorneys who specialize in fair housing claims say that DoJ has not been as active as it could be. “They have lost some attorneys that have moved into private practice or retired, and there has been a scandal in the Attorney General's Office in terms of political preference in hiring new lawyers that has [consumed] some time and resources,” says Mike Skojek, a partner with Baltimore-based Gallagher Evelius & Jones.
Still, DoJ agents are out there, and those in the know recommend cooperating if faced with an investigation. “DoJ is on a mission,” says Charlie Edwards, a real estate practice leader at Washington, D.C.-based law firm Womble Carlyle Sandridge & Rice, who is defending a discrimination case filed by DoJ. “An inspector visited every property in a four-state area with a torpedo level [measuring instrument] with the idea that, by God, he was going to find accessibility violations. And he did.”
Remedies to DoJ accessibility charges can involve extremely expensive retrofitting, monetary damages to victims of discrimination, and costly settlements whereby alleged violators pay plaintiffs' legal fees. To that end, DoJ recommends a no-nonsense approach to federal accessibility requirements. “Educate yourself with the requirements of the law, and comply with it; it's really as simple as that,” the DoJ official says. “As much as we are litigators and lawyers, we would much rather see a focus in the building community [to] do things right at the time of design and construction without any intervention from us.”