Gimme shelter: does the Fair Housing Amendments Act of 1988 require accommodations for the financial circumstances of the disabled?

• Author: Rosenau, Brian R.

INTRODUCTION

In 1968, "Congress enacted what is popularly called the Fair Housing Act as title VIII of the Civil Rights Act of 1968." (2) The purpose of this portion of the Civil Rights Act was to end discriminatory housing practices across the United States. (3) It undertook this endeavor by making it illegal to discriminate, in housing contexts, on the basis "of race, color, religion, or national origin." (4) In 1974, Congress amended the Fair Housing Act to prohibit gender discrimination in housing contexts. (5) When Congress enacted this amendment, however, the Fair Housing Act still did not prohibit discrimination against the disabled.

Twenty years after Congress passed the Fair Housing Act of 1968, it determined that two additional groups needed protection from discrimination in housing contexts--the disabled (6) and families with children. (7) Congress enacted the Fair Housing Amendments Act of 1988 to stop discrimination against these two groups. (8) Specifically, to end discrimination against the disabled, Congress made it unlawful "[t]o discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap." (9) The FHAA further stated that discrimination against the disabled included "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a disabled person an] equal opportunity to use and enjoy a dwelling." (10)

Courts have frequently debated what Congress meant by the term "reasonable accommodations." It is generally agreed that Congress originally intended that the scope of reasonable accommodations, under the FHAA, be the same as that for reasonable accommodations under the Rehabilitation Act of 1973. (11) Beyond this agreement, however, courts have often struggled with the meaning of the term and have, on occasion, come to differing conclusions as to whether certain actions are reasonable accommodations within the meaning of the FHAA. (12)

One of the current issues concerning the meaning of the term reasonable accommodations is whether the FHAA requires landlords to accommodate for the financial circumstances of potential tenants who do not have an ability to earn sufficient incomes because of their disabilities. Some courts have found that landlords do not need to make accommodations in these situations, (13) whereas at least one court has found that accommodating for these circumstances is a reasonable accommodation within the meaning of the FHAA. (14)

This Note addresses the issue of whether a landlord must accommodate for the financial circumstances of a potential tenant, if those financial circumstances are caused by that person's disability. This issue is examined within the framework of two important cases, which reached differing conclusions concerning whether the FHAA requires this type of accommodation. First, in Salute v. Stratford Greens Garden Apartments, (15) the Second Circuit decided that, if a landlord has a policy of not accepting Section 8 vouchers from tenants, it is not a reasonable accommodation within the meaning of the FHAA to require that landlord to accept a Section 8 voucher from a disabled potential tenant, even if that potential tenant's need for the voucher is the product of his or her disability. Five years later, however, in Giebeler v. M&B Associates, (16) the Ninth Circuit determined that, even if a landlord has a policy against accepting cosigners, it is a reasonable accommodation within the meaning of the FHAA to allow a potential tenant to utilize a cosigner, as long as his or her need for that cosigner is the direct result of his or her disability.

This Note presents evidence that the court's decision in Salute was correct, whereas the court's ruling in Giebeler was improper. Part I of this Note gives a brief overview of the Section 8 voucher program. Part II presents a short synopsis of the Salute and Giebeler cases. Part III establishes that the reliance in Giebeler on US Airways, Inc. v. Barnett (17) is improper, as Barnett does not support the propositions that the Giebeler court purported it to support. Part IV then argues that it is unlikely that Congress intended "reasonable accommodations" to extend to accommodations for a disabled person's financial circumstances, even if those circumstances are caused by that person's disability. Finally, Part V demonstrates that accommodations for financial circumstances are not "necessary" to provide a disabled person with the "opportunity to use and enjoy a dwelling," which they are entitled to under the FHAA. (18) For these reasons, this Note concludes that accommodating for a disabled person's financial situation, even if that situation is caused by that person's disability, is not a reasonable accommodation within the meaning of the FHAA.

1. THE SECTION 8 VOUCHER PROGRAM

   A background knowledge of the Section 8 voucher program is necessary to fully comprehend the discussions present in this Note. The Section 8 program "allow[s] very low-income families to choose and lease or purchase safe, decent, and affordable privately-owned rental housing." (19) "To participate in the Section 8 program, an eligible family applies to a local" public housing agency. (20) The program applicants are then placed on a list and wait to receive their voucher. (21) Once a voucher has been obtained, the qualified individual or family then attempts to find an apartment that meets Section 8 guidelines and that has a landlord who is willing to accept Section 8 tenants. (22) The Section 8 voucher allows its holder to pay a specified percentage of his or her gross income as rent, while the government pays the tenant's landlord the remainder of the rent that is due. (23) "Participation [in the program] by landlords is voluntary; they lawfully may refuse to accept applications from Section 8 beneficiaries." (24)

   In a recent study that examined the Section 8 program, only twenty-two percent of Section 8 "voucher holders [in the study's sample population] had a disabled family member." (25) It can be inferred from this statistic that most Section 8 voucher holders are not disabled, nor do they have a disabled family member. (26)

2. CASE LAW CONCERNING ACCOMMODATIONS FOR FINANCIAL CIRCUMSTANCES UNDER THE FHAA

   1. Salute v. Stratford Greens Garden Apartments

      One of the first cases to address the issue of whether financial accommodations are required under the FHAA was Salute v. Stratford Greens Garden Apartments. In Salute, the management at the Stratford Greens apartment complex in Suffolk County, New York, denied two potential tenants' applications because they needed to use Section 8 vouchers to pay portions of their rent. Richard Salute, one of the potential tenants, suffered from "multiple medical problems, including chronic asthma, dextroscoliosis of the back, diverticulitis, ulcerative colitis and depression." (27) Salute had found a suitable apartment at Stratford Greens, but was denied an apartment because of his participation in the Section 8 program. (28)

      Marie Kravette, the other potential tenant that Stratford Greens denied, suffered from degenerative rheumatoid arthritis and clinical depression, which prevented her from working. (29) Kravette, like Salute, had applied for an apartment at Stratford Greens, but was denied because she participated in the Section 8 voucher program. (30)

      1. Section 8 Vouchers as Reasonable Accommodations in Salute

         At the time Salute and Kravette applied for apartments, Stratford Greens had a policy of refusing to accept tenants who participated in the Section 8 program. (31) Because of this policy, the management at Stratford Greens denied the applications of both Salute and Kravette. (32) Salute and Kravette then sued Stratford Greens, claiming that it had "violated ... the United States Housing Act's 'take one, take all' provision" (33) and had failed to reasonably accommodate their disabilities by not allowing them to use Section 8 vouchers to pay portions of their rents. (34)

         The Second Circuit determined that accommodations for the financial circumstances of a potential tenant do not fall within the FHAA's meaning of reasonable accommodations. It based this decision upon two principles. First, it determined that, even if the proposed action was an accommodation within the meaning of the FHAA, it was unreasonable, which placed it outside the scope of the FHAA. (35) Second, it determined that forcing a landlord to accept a Section 8 voucher was not an accommodation within the meaning of the FHAA, even if the need for that voucher came from the potential tenant's disability. (36)

         The court first found that, even if allowing the use of a Section 8 voucher were an accommodation within the meaning of the FHAA, it would be an unreasonable accommodation, and, therefore, not required. The court believed that the burdens imposed as a result of participation in the Section 8 program were so substantial that they "should not be forced on landlords, either as an accommodation to handicap or otherwise." (37) The court supported this assertion by stating that participation in the Section 8 program might expose a landlord to the unreasonable burdens of "financial audits, maintenance requirements, inspection of the premises, reporting requirements, [and] increased risk of litigation." (38) The court also expressed concern that if the government were to end the Section 8 program, a landlord who had been forced to accept Section 8 tenants would then face the unreasonable burden of either keeping or dismissing those tenants who no longer met the financial qualifications necessary to live in their particular dwellings without program assistance. (39) The court concluded that because of these potential burdens, an accommodation that required the acceptance of a Section 8 tenant, even when a landlord had a no Section 8 tenants policy, created an unreasonable...