Washington and Lee Law Review Online Washington and Lee Law Review Online
Volume 81 Issue 5 Article 1
5-13-2024
Addressing Mental Disability Head On: The Challenges of Addressing Mental Disability Head On: The Challenges of
Reasonable Accommodation Requests for Virginia Housing Reasonable Accommodation Requests for Virginia Housing
Providers Providers
Haley Fortner
Washington and Lee University School of Law
, fortner.h24@law.wlu.edu
Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr-online
Part of the Health Law and Policy Commons, Housing Law Commons, and the State and Local
Government Law Commons
Recommended Citation Recommended Citation
Haley Fortner,
Addressing Mental Disability Head On: The Challenges of Reasonable Accommodation
Requests for Virginia Housing Providers
, 81 WASH. & LEE L. REV. ONLINE 359 (2024),
https://scholarlycommons.law.wlu.edu/wlulr-online/vol81/iss5/1
This Note is brought to you for free and open access by the Law School Journals at Washington and Lee University
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359
Addressing Mental Disability Head
On: The Challenges of Reasonable
Accommodation Requests for Virginia
Housing Providers
Haley Fortner
*
Abstract
A person’s home should be a sanctuary of safety, security,
and comfortability away from the demands of the outside world.
Yet for many people living with mental illness, a home can all
too easily become a sort of temporary prison. Nowhere is this
more apparent than when a housing provider stands in the way
of allowing someone with a mental disability the equal
opportunity to use and enjoy their home. Fair housing law’s
reasonable accommodation requirement works to ensure those
living with mental illness receive the accommodations they need
in order to live safely and comfortably in their own home. Even
the most well-intentioned housing providers, however, continue
to find themselves in violation of fair housing law as they
struggle to decipher when and how they should grant requests
for reasonable accommodation.
This Note provides a comprehensive overview of fair housing
law both federally and in Virginia with a particular focus on the
* J.D. Candidate, Class of 2024, Washington and Lee University School
of Law. Thank you to my advisor, Professor Heather Kolinsky, for her
invaluable support and guidance throughout the writing process, and to
Kathleen Panagis whose insight and mentorship provided the inspiration for
this Note. Thank you as well to the incredible editors of the Washington and
Lee Law Review for helping bring this Note to publication. Lastly, a special
thank you to my family for their unwavering love and support all these years—
without you, none of this would have been possible.
360 81 WASH. & LEE L. REV. ONLINE 359 (2024)
reasonable accommodation requirement in the context of mental
disabilities. This Note not only seeks to explain why the
reasonable accommodation requirement is tricky for many
housing providers when the requested accommodation is made
on the basis of a mental disability but also seeks to inform
housing providers on how to navigate the requirement’s
challenges and offer potential solutions that could help alleviate
those challenges in the future.
Table of Contents
I
NTRODUCTION .................................................................. 361
I. C
URRENT LANDSCAPE OF FAIR HOUSING LAW ....... 362
A. Historical Backdrop .......................................... 362
B. Federal Fair Housing Law ............................... 365
C. Virginia Fair Housing Law .............................. 369
D. Americans with Disabilities Act of 1990 .......... 372
II. R
EASONABLE ACCOMMODATION REQUESTS: TO
GRANT OR NOT TO GRANT ....................................... 374
A. What Is a Reasonable Accommodation Request,
and When Must It Be Granted? ....................... 374
B. Frequently Seen Issue Spots ............................. 379
1. Hoarding Disorder ....................................... 379
2. Second Chance Accommodations and
Retaliation ................................................... 382
C. Underlying Problems ........................................ 384
III. C
ONSEQUENCES AND SIGNIFICANCE OF DECIDING
WRONGLY ................................................................. 389
A. Legal Investigation, Procedure, and Remedies 389
1. Administrative Review by HUD ................. 389
2. Judicial Review by Federal or State Courts
...................................................................... 394
B. Significance of Reasonable Accommodations .. 395
IV. L
OOKING FORWARD: POTENTIAL REFORMS AND
SOLUTIONS ............................................................... 399
A. Incorporating Mental Health and Disability
Experts into the Determination ........................ 400
B. Updating Fair Housing Training to Include
Behavioral Health Training ............................ 402
ADDRESSING MENTAL DISABILITY HEAD ON 361
C
ONCLUSION ...................................................................... 403
I
NTRODUCTION
Reasonable accommodations have been a longtime fixture
of fair housing law, serving an important societal function in
providing persons with disabilities an equal opportunity to use
and enjoy their homes.
1
Yet, housing providers in Virginia and
elsewhere continue to wrestle with when and how to grant
reasonable accommodation requests, particularly when those
requests are made on the basis of a mental disability.
2
Whether
it be intentional or unintentional, discrimination continues to
occur at the hands of housing providers who improperly deny
reasonable accommodations in violation of federal and state fair
housing law.
3
Ignorance of the law is no excuse,
4
but by
providing a resource that identifies the appropriate legal
response to reasonable accommodation requests, more housing
providers can stand poised to avoid fair housing violations in the
future. This Note seeks to help housing providers understand
how to navigate the particular complexities of reasonable
accommodations made by or on behalf of residents with a mental
disability, and it is hoped that in doing so, housing providers in
Virginia will feel empowered with the knowledge and
wherewithal to operate their businesses with the peace of mind
that they are helping, not hurting, those who live with mental
illness.
This Note begins with an introduction to the historical
underpinnings that led to the enactment of fair housing law in
America.
5
Next, the Note presents the statutory landscape of
fair housing law as it exists today, both federally
6
and in
Virginia,
7
along with a brief discussion of why the Americans
1. See infra Part III.B.
2. See infra Part II.
3. See infra Part III.B.
4. O
LIVER WENDELL HOLMES, THE COMMON LAW 47 (1881).
5. See infra Part I.A.
6. See infra Part I.B.
7. See infra Part I.C.
362 81 WASH. & LEE L. REV. ONLINE 359 (2024)
with Disabilities Act of 1990
8
lacks applicability in the housing
provider context.
9
The Note then proceeds to discuss the
contours of fair housing law’s reasonable accommodation
requirement, outlining what a reasonable accommodation
request looks like and when a housing provider is and is not
legally required to grant such a request.
10
This Section also
highlights a few of the most befuddling reasonable
accommodation request scenarios,
11
along with an analysis of
why reasonable accommodation requests more generally tend to
pose such a problem for housing providers.
12
The Note then
discusses the significance of reasonable accommodations
13
and
the consequences housing providers potentially face if they
improperly deny a tenant’s reasonable accommodation
request.
14
Lastly, the Note concludes with two potential
solutions for housing providers and the Commonwealth of
Virginia to consider that may be able to help reduce housing
discrimination against persons with mental disabilities moving
forward.
15
I. C
URRENT LANDSCAPE OF FAIR HOUSING LAW
A. Historical Backdrop
Prior to 1968, the year the Fair Housing Act (“FHA”)
16
was
signed into federal law, discrimination in housing and
housing-related transactions was a practice many Americans
assumed was perfectly legal.
17
No federal legislation prohibited
8. 42 U.S.C. §§ 12101–12313.
9. See infra Part I.D.
10. See infra Part II.A.
11. See infra Part II.B.
12. See infra Part II.C.
13. See infra Part III.B.
14. See infra Part III.A.
15. See infra Part IV.
16. Pub. L. No. 90-284, 82 Stat. 73 (1968) (codified as amended at 42
U.S.C. §§ 3601–3619).
17. See Michelle Adams, The Unfulfilled Promise of the Fair Housing Act,
N
EW YORKER (Apr. 11, 2018), https://perma.cc/FLD5-PVNL (“Before 1968, it
was assumed to be perfectly legal for owners to refuse to sell homes to black
families, or for a private bank to deny a potential black homebuyer a loan, or
for a broker to lie and say that no homes were available.”).
ADDRESSING MENTAL DISABILITY HEAD ON 363
otherwise.
18
Segregation in housing was rampant throughout
the first half of the twentieth century, especially as droves of
Black Americans moved away from the rural South into larger
American cities.
19
The Great Depression of the 1930s and the
subsequent aggravating effects of World War II in the late 1930s
and 40s further perpetuated mass urbanization of minorities.
20
Redlining remained commonplace across the country,
prejudicially producing inner city communities “plagued by
unemployment, crime, and other social ills.”
21
Despite the Supreme Court’s decisions in Shelley v.
Kraemer
22
and Jones v. Alfred H. Mayer Co.,
23
which together
outlawed the discriminatory exclusion of Blacks and other
minorities from predominately white neighborhoods,
24
race-based housing patterns continued to remain in effect into
18. See Arlene S. Kanter, A Home of One’s Own: The Fair Housing
Amendments Act of 1988 and Housing Discrimination Against People with
Mental Disabilities, 43 AM. U. L. REV. 925, 935–37 (1994) (detailing how the
Fair Housing Act of 1968 was the first comprehensive piece of legislation in
American history to prohibit discrimination in housing). But see Exec. Order
No. 11,063, 3 C.F.R. § 570.601 (1963) (prohibiting discrimination based on
race, color, creed, or national origin in housing and related facilities that were
federally owned or received federal assistance).
19. See, e.g., The Great Migration (1910–1970), N
AT’L ARCHIVES,
https://perma.cc/NZ5P-KB64 (“Black people who migrated during the second
phase of the Great Migration were met with housing discrimination, as
localities had started to implement restrictive covenants and redlining, which
created segregated neighborhoods . . . .”).
20. See id. (linking the migration of Black Americans to the United
States’ involvement in both World Wars); Fair Housing Act, H
ISTORY (Jan. 27,
2010), https://perma.cc/2PJW-KF3V (last updated Dec. 15, 2023) (noting the
1950s through 1980s saw a rise in America’s urban Black population as well
as urban ghettoes); see also Douglas S. Massey, The Legacy of the 1968 Fair
Housing Act, 30 SOCIO. F. 571, 572–74 (2015) (discussing the historical
backdrop in American society that predated the push for fair housing laws).
21. Fair Housing Act, supra note 20; see also Becky Little, How a New
Deal Housing Program Enforced Segregation, H
ISTORY (Oct. 20, 2020),
https://perma.cc/6SNQ-LHGK (last updated June 1, 2023) (discussing the
historical origin and effects of redlining).
22. 334 U.S. 1 (1948).
23. 392 U.S. 409 (1968).
24. See Shelley, 334 U.S. at 20–21 (ruling unconstitutional the judicial
enforcement of restrictive covenants that deny equal enjoyment of ownership
or occupancy to non-whites); Jones, 392 U.S. at 438–40 (upholding the Civil
Rights Act of 1866 as a valid exercise of Congress’s constitutional power to
pass legislation barring racial discrimination in the sale or rental of property).
364 81 WASH. & LEE L. REV. ONLINE 359 (2024)
the late 1960s.
25
Intensifying pressure from civil rights leaders
and activists for federal legislation outlawing housing
discrimination, however, finally came to fruition on January 17,
1967, when then-House Judiciary Committee chairman
Emanuel Cellar (D-N.Y.) introduced H.R. 2516,
26
the Civil
Rights Act of 1968.
27
Principal to this landmark bill was the
soon-to-be Fair Housing Act of 1968, the long-awaited piece of
federal legislation that would finally prohibit discrimination in
housing and housing-related transactions.
28
The bill, which was hotly debated in the U.S. Senate, only
passing by a slim margin, thanks to Senate Republican leader
Everett Dirksen, eventually went on to easy victory in the U.S.
House, in part due to the April 4, 1968, murder of Dr. Martin
Luther King, Jr.
29
Dr. King’s shocking death prompted
then-President Lyndon B. Johnson to intervene in the bill’s
passage by mounting increasing pressure on the House to pass
the bill, ultimately becoming the key kicker in enabling its
enactment.
30
H.R. 2516 was subsequently signed into law on
April 11, 1968, officially becoming the Civil Rights Act of 1968
whose Title VIII would forever become known as the FHA.
31
Over fifty years on from its passage, which occurred during one
of the darkest times in American history, the FHA continues to
achieve the important work of reducing barriers in housing
25. See Fair Housing Act, supra note 20 (discussing the continued
prevalence of race-based segregation into the late 1960s).
26. H.R. 2516, 90th Cong. (1967); see The Fair Housing Act of 1968, H
IST.,
ART & ARCHIVES: U.S. HOUSE REPRESENTATIVES, https://perma.cc/UJ42-S97B
(detailing the introduction of the FHA in Congress).
27. Pub. L. No. 90-284, 82 Stat. 73 (1968) (codified as amended in
scattered sections of 18, 25, and 42 U.S.C.).
28. See Fair Housing Act, supra note 20 (discussing the impetus for the
law).
29. See id. (detailing the events giving rise to the law’s passage).
30. See The Fair Housing Act of 1968, supra note 26 (“On Friday, April 5,
President Lyndon B. Johnson sent a letter to Speaker John McCormack of
Massachusetts asking him ‘to bring this bill to a vote’ as soon as possible in
order to show the nation that its leaders were acting on civil rights issues
championed by King.”).
31. See id. (“President Johnson signed the bill into law on April 11,
1968.”).
ADDRESSING MENTAL DISABILITY HEAD ON 365
opportunities for Americans from all backgrounds and walks of
life.
32
B. Federal Fair Housing Law
Despite being the first comprehensive piece of federal
legislation to prohibit discrimination in housing and
housing-related transactions,
33
the FHA, as it was originally
written, only prohibited discrimination on the basis of “race,
color, religion, or national origin.”
34
Federal law, therefore,
afforded no protection against housing-based discrimination for
persons living with a disability.
35
It was not until the passage of
the Fair Housing Amendments Act (“FHAA”)
36
twenty years
later in 1988 that federal fair housing law was finally expanded
to prohibit discrimination on the basis of disability as well.
37
Under the FHAA, the law changed so as to make it unlawful to
“discriminate in the sale or rental, or to otherwise make
unavailable or deny, a dwelling to any buyer or renter because
of a handicap,”
38
which the law defined broadly as any physical
or mental impairment that impacts one’s ability to complete a
major life activity.
39
32. See Julián Castro, The Fair Housing Act After Fifty Years: Opening
Remarks, 40 C
ARDOZO L. REV. 1091, 1091 (2018) (“And yet, during that darkest
of times, the seeds of tremendous progress were planted when . . . President
Lyndon Johnson signed the Fair Housing Act of 1968. Over the years, this
groundbreaking piece of legislation has helped to reduce barriers to housing
opportunities for Americans of all different backgrounds.”); Proclamation No.
10,177, 86 Fed. Reg. 19,775 (Apr. 15, 2021) (summarizing President Biden’s
sentiments towards the FHA, which he regards as a law that “still serves as a
powerful statement about who we are as a people” and “an enduring testament
to the ideals of Dr. King”).
33. See supra note 18 and accompanying text.
34. Fair Housing Act § 804 (current version at 42 U.S.C. § 3604).
35. See id. (failing to prohibit discrimination on the basis of disability).
36. Pub. L. No. 100-430, 102 Stat. 1619 (1988) (codified as amended at 42
U.S.C. §§ 3601–3631).
37. See id. § 6 (adding discrimination on the basis of a disability to the
list of federally prohibited discriminatory housing practices).
38. 42 U.S.C. § 3604(f)(1).
39. See 42 U.S.C. § 3602(h)(1) (defining handicap); see also Christopher
C. Ligatti, Cluttered Apartments and Complicated Tenancies: A Collaborative
Intervention Approach to Tenant “Hoarding” Under the Fair Housing Act, 46
S
UFFOLK U. L. REV. 79, 87 (2013) (“Courts have held that major life activities
366 81 WASH. & LEE L. REV. ONLINE 359 (2024)
The FHAA was not the first time federal law attempted to
prohibit discrimination on the basis of a disability. Congress
first attempted such a feat when it passed the Rehabilitation
Act of 1973 (“Rehabilitation Act”),
40
the first piece of federal
legislation addressing discrimination against individuals living
with a disability.
41
Section 504 of the Rehabilitation Act,
42
arguably the most important section of the law, continues to this
day to prohibit programs or activities that receive federal
financial assistance, including federally subsidized housing,
from discriminating against an “otherwise qualified individual
with a disability . . . solely by reason of her or his disability.”
43
Thus, although Section 504 was Congress’s first successful
attempt at prohibiting housing discrimination against persons
with a disability, it did so only in in the limited context of
federally funded housing.
44
The FHAA took the Rehabilitation Act’s prohibition even
further, prohibiting discrimination on the basis of disability in
all forms of housing, regardless of federal financial assistance.
45
Even so, the two laws share much in common with the FHAA
continuing, in many ways, to incorporate and mirror its
predecessor.
46
For instance, the FHAA’s definition of
include: working, sleeping, concentrating, self-care (including grooming and
household maintenance), and interacting with others.”).
40. Pub. L. No. 93-112, 87 Stat. 355 (1973) (codified as amended at 29
U.S.C. §§ 701–97).
41. See Kanter, supra note 18, at 939–42 (noting that although the
Rehabilitation Act technically marked the first federal law that addressed the
rights of persons with disabilities, its scope was limited).
42. Rehabilitation Act § 504 (codified as amended at 29 U.S.C. § 794).
43. 29 U.S.C. § 794. The subsequent Civil Rights Restoration Act of 1987
later clarified “programs or activities” to entail any organization “principally
engaged in the business of providing education, health care, housing, social
services, or parks and recreation.” Pub. L. No. 100-259, § 3, 102 Stat. 28, 28–
29
(1988) (codified as amended at 29 U.S.C. § 794(b)(3)(A)(ii)); see also id. § 4
(amending Section 504 of the Rehabilitation Act).
44. See Kanter, supra note 18, at 940 (“Section 504 of the Rehabilitation
Act prohibits essentially all forms of discrimination against a wide class of
people with disabilities; it applies, however, only to discrimination by federally
financed agencies.”).
45. Id. at 928, 934 (discussing the significance of the FHAA in the context
of federal antidiscrimination legislation).
46. See Gretchen M. Widmer, Note, We Can Work It Out: Reasonable
Accommodation and the Interactive Process Under the Fair Housing
ADDRESSING MENTAL DISABILITY HEAD ON 367
“handicap,” generally defined as a “physical or mental
impairment which substantially limits one or more of such
person’s major life activities,” is distinctly similar to the
definition of “disability” used in the Rehabilitation Act.
47
In
creating such parallels, Congress presumably intended for the
developed case law and definitions under the Rehabilitation Act
to be informative for interpreting new cases and circumstances
under the FHAA. Such a tactic not only wove the two pieces of
federal legislation together but made the work of interpreting
new case law under the FHAA much easier for attorneys and
judges alike.
48
To this day, the FHAA continues to be a remarkably
profound step in the way of federal fair housing law. For the first
time in America’s history, the law articulated a clear
pronouncement of the United States’ national commitment to
ending the unnecessary exclusion and discrimination against
members of society who live with one or more disabilities.
49
At
the heart of the amendment were four key goals: (1) integrating
persons with disabilities into mainstream society;
50
(2)
Amendments Act, 2007 U. ILL. L. REV. 761, 761–63 (2007) (noting the
similarities between the FHAA and the Rehabilitation Act).
47. Compare 42 U.S.C. § 3602(h) (defining handicap under the FHAA),
with 29 U.S.C. § 707(9) (defining disability under the Rehabilitation Act).
48. See Matt Hall, Note, The Role of the Exhaustion and Ripeness
Doctrines in Reasonable Accommodation Denial Suits Under the Fair Housing
Amendments Act, 24
BYU J. PUB. L. 347, 350 (2010) (explaining and analyzing
the similarities between the Rehabilitation Act and the FHAA).
49. See H.R.
REP. NO. 100-711, at 18 (1988)
The Fair Housing Amendements [sic] Act, like Section 504 of the
Rehabilitation Act of 1973, as amended, is a clear pronouncement
of a national commitment to end the unnecessary exclusion of
persons with handicaps from the American mainstream. It
repudiates the use of stereotypes and ignorance, and mandates that
persons with handicaps be considered as individuals. Generalized
perceptions about disabilities and unfounded speculations about
threats to safety are specifically rejected as grounds to justify
exclusion.
50. See Susan B. Eisner, There’s No Place Like Home: Housing
Discrimination Against Disabled Persons and the Concept of Reasonable
Accommodation Under the Fair Housing Amendments Act of 1988, 14 N.Y.L.
SCH. J. HUM. RTS. 435, 438 (1998) (noting the FHAA was written with the goals
of integrating persons with disabilities into mainstream society and
“increas[ing] the extent to which disabled persons are able to enjoy living in
their own homes” (alteration in original)).
368 81 WASH. & LEE L. REV. ONLINE 359 (2024)
increasing the ability of persons with a disability to enjoy living
in their own homes;
51
(3) providing individuals, and the
government, with a lower cost, easier-to-use administrative
process to enforce antidiscrimination law;
52
and (4) at base,
extending the coverage of the FHA to persons with a disability.
53
One of the FHAA’s most important additions, and the one
contemplated in this Note, is the FHAA’s reasonable
accommodation requirement codified at Section 3604(f)(3)(B).
54
Under the FHAA, discrimination in violation of fair housing law
not only includes discrimination in the sale or rental of housing
generally but also the “refusal to make reasonable
accommodations in rules, policies, practices, or services, when
such accommodations may be necessary to afford a person an
equal opportunity to use and enjoy a dwelling.”
55
Such a rule,
therefore, imposes upon all persons involved in housing and
housing-related transactions, as defined under Section
3602(d),
56
a duty to grant accommodation requests when those
requests are reasonable.
57
Despite its best intentions, Congress’s crafting of the
reasonable accommodation requirement has proved in practice
to be underlyingly flawed. The requirement’s competing
demands have created a challenging body of law under which
disputes are ultimately being determined by fine-line factual
analyses that fail to focus on the greater goals of the FHAA and
51. Id.
52. Hall, supra note 48, at 351.
53. See id. (“Congress enacted the FHAA to . . . expand the coverage of
the FHA to include the handicapped and families with children.”).
54. 42 U.S.C. § 3604(f)(3)(B).
55. Id.
56. 42 U.S.C. § 3602(d); see id. (defining person as “one or more
individuals, corporations, partnerships, associations, labor organizations,
legal representatives, mutual companies, joint-stock companies, trusts,
unincorporated organizations, trustees, trustees in cases under title 11,
receivers, and fiduciaries”).
57. See Eisner, supra note 50, at 444 (emphasizing that an
accommodation is reasonable “if it reduces the effect of the disability on the
disabled tenant, such that the disabled tenant is no more limited or restricted
in his use of the dwelling than non-disabled tenants are, with the benefit of
the accommodation”); see also U.S.
DEP’T JUST. & U.S. DEP’T HOUS. & URBAN
DEV., JOINT STATEMENT: REASONABLE ACCOMMODATIONS UNDER THE FAIR
HOUSING ACT 3 (2004) [hereinafter JOINT STATEMENT] (discussing who must
comply with the FHA’s reasonable accommodation requirement).
ADDRESSING MENTAL DISABILITY HEAD ON 369
instead focus on the particulars of who said what and when.
58
As a result, many scenarios have arisen during the last thirty
years that have left persons living with a disability without their
accommodation and housing providers confused and unsure of
how to proceed when they receive a reasonable accommodation
request.
59
C. Virginia Fair Housing Law
It is important to be aware that federal fair housing law
does not exist on its own but rather in conjunction with state
fair housing law. Since the passage of the FHA, all states have
gone on to adopt either identical or virtually identical fair
housing laws through their own legislatures.
60
Virginia is no
different, having passed its fair housing law—the Virginia Fair
Housing Law (“VFHL”)
61
—in 1972, just four years after the
enactment of the FHA.
62
The VFHL is virtually identical to
federal fair housing law.
63
It, too, prohibits discrimination
against persons with a disability or handicap and requires
reasonable accommodations be made by persons to whom fair
housing law applies.
64
The VFHL, however, goes above and
58. See infra Part II.C.
59. See infra Part II.
60. JoAnn Nesta Burnett & Gary A. Poliakoff, Prescription Pets(R):
Medical Necessity or Personal Preference, 36 N
OVA L. REV. 451, 457 (2012); see,
e.g., Ohio Rev. Code § 4112.02(H) (2023) (outlawing discrimination on the
basis of disability in housing); Cal. Gov’t Code § 12955 (2023) (outlining
various unlawful practices in housing, including discrimination on the basis of
disability).
61. V
A. CODE ANN. §§ 36-96.1–2323 (2022).
62. Lizbeth T. Hayes, 45 Years of Fair Housing for All of Virginia 1972–
2017, QUORUM, May 2017, at 12.
63. See id. (“The VFHL is substantially equivalent to the federal Fair
Housing Act which allows the federal Department of Housing and Urban
Development to refer most complaints of housing discrimination to Virginia’s
Fair Housing Office to be investigated.” (emphasis added)).
64. See V
A. CODE ANN. § 36-96.3(A)(8) (2022) (prohibiting discrimination
in the sale or rental of a dwelling because of a disability); id. § 36-96.3(A)(9)
(prohibiting discrimination in the “terms, conditions, or privileges of sale or
rental of a dwelling, or in the provision of services or facilities in connection
therewith because of a disability”); id. § 36-96.3:2 (setting forth the reasonable
accommodation requirement); see also id. § 36-96.1:1 (“For the purposes of this
chapter, the terms ‘disability’ and ‘handicap’ shall be interchangeable.”); id.
(defining who qualifies as a person to whom fair housing law applies).
370 81 WASH. & LEE L. REV. ONLINE 359 (2024)
beyond the amended FHA in that it protects a wider array of
classes.
65
For instance, in 2020, the Virginia General Assembly
expanded upon the growing list of protected classes under the
VFHL by adopting legislation adding sexual orientation, gender
identity, source of funds, and military status to the list.
66
The
extensive parallels between federal fair housing law and the
VFHL significantly help to simplify the analysis of fair housing
policies and procedures in Virginia, as both statutes are—for the
most part—analyzed in the same fashion.
67
Case outcomes,
therefore, on the federal level are particularly informative for
determining case outcomes on a Virginia level.
68
The similarity between federal fair housing law and the
VFHL runs even deeper in the context of reasonable
accommodations. First, many of the exceptions to the reasonable
accommodation requirement that are included in the amended
FHA have been adopted in the VFHL. For example, Virginia has
chosen to incorporate the FHA’s “direct threat” exception, which
excludes from coverage persons with disabilities “whose tenancy
would constitute a direct threat to the health and safety of other
individuals or whose tenancy would result in substantial
physical damage to the property of others.”
69
Under this
exception, housing providers are granted leeway in their general
duty to grant reasonable accommodation requests when the
65. See id. § 36-96.1 (“It is the policy of the Commonwealth of Virginia to
provide for fair housing throughout the Commonwealth, to all citizens,
regardless of race, color, religion, national origin, sex, elderliness, familial
status, source of funds, sexual orientation, gender identity, military status, or
disability . . . .”).
66. See H.D. 6, 2020 Gen. Assemb., Reg. Sess. (Va. 2020) (adding “source
of funds”); S. 868, 2020 Gen. Assemb., Reg. Sess. (Va. 2020) (adding “sexual
orientation, gender identity, status as a veteran” and changing “handicap” to
“disability”); see also Susie McClannahan, Virginia’s New Fair Housing
Protections, E
QUAL RTS. CTR. (July 8, 2020), https://perma.cc/3WLK-A422
(reporting on the adoption of these new protected classes under the VFHL).
67. See supra notes 63–64 and accompanying text.
68. Compare Commonwealth ex rel. Fair Hous. Bd. v. Windsor Plaza
Condo. Ass’n, 768 S.E.2d 79, 86–90 (Va. 2014) (outlining the Supreme Court
of Virginia’s analysis of claims alleging failure reasonable accommodate a
disability), with Bryant Woods Inn v. Howard County., 124 F.3d 597, 603–05
(4th Cir. 1997) (outlining the Fourth Circuit’s analysis of such claims).
69. 42 U.S.C. § 3604(f)(9); see V
A. CODE ANN. § 36-96.2(E) (2022) (“It shall
not be unlawful under this chapter for any owner to deny or limit the rental of
housing to persons who pose a clear and present threat of substantial harm to
others or to the dwelling itself.”).
ADDRESSING MENTAL DISABILITY HEAD ON 371
requesting resident poses a direct threat to the health, safety,
and well-being of other residents in the community.
70
Housing
providers, therefore, retain the discretion in such circumstances
to refuse to grant the requested accommodation even if the
accommodation is considered reasonable.
71
Virginia housing providers are also exempted from having
to grant accommodation requests for residents who use
controlled substances illegally or who are addicted to controlled
substances, as defined under Virginia or federal law.
72
Additionally, housing providers are not required to grant
accommodation requests for individuals who currently lack the
funds to finance their tenancy.
73
Legislators—both federally and
in Virginia—have therefore determined that these situations
present significant enough challenges to housing providers and
their housing communities that they should be excused from the
reasonable accommodation requirement, even in circumstances
where the requesting individual suffers from a qualifying
disability.
Second, VFHL, much like federal fair housing law, requires
housing providers engage in a “good-faith interactive process”
before denying a request for a reasonable accommodation.
74
Rather than denying an accommodation request outright, the
housing provider is required to work with the requesting
individual to “determine if there is an alternative
70. See VA. CODE ANN. § 36-96.2(E) (2022) (setting forth the “direct
threat” exception).
71. No case law in Virginia currently exists discussing the “direct threat”
exception. But see, e.g., Foster v. Tinnea, 96-2718, p. 5–9 (La. App. 1 Cir.
12/29/97), 705 So. 2d 782, 785–86 (reasoning a tenant constituted a direct
threat because he engaged in altercations with other residents, chased
children with a knife, listened to vulgar music, and made inappropriate sexual
comments, despite no evidence of actual harm).
72. See V
A. CODE ANN. § 36-96.1:1 (2022) (excluding from the VFHL’s list
of qualifying disabilities the “current, illegal use of or addiction to controlled
substances as defined in Virginia or federal law”). For a list of controlled
substances under Virginia law, see id. tit. 54.1, ch. 34, art. 5. For a list of
controlled substances under federal law, see 21 U.S.C. § 812.
73. See V
A. CODE ANN. § 36-96.2(I) (2022) (refusing to prohibit “an owner
of an owner’s managing agent from denying or limiting the rental or occupancy
of a rental dwelling unit to a person because of such person’s source of funds”).
74. See id. § 36-96.3:2(C) (setting forth the “good-faith interactive
process” requirement housing providers must engage in before denying a
request for a reasonable accommodation).
372 81 WASH. & LEE L. REV. ONLINE 359 (2024)
accommodation that would effectively address the
disability-related needs of the requestor.”
75
This requirement
works to afford the requesting individual extra security against
an outright denial of his or her accommodation request as it
effectively mandates housing providers take a deeper, second
look at all reasonable accommodation requests received before
denying them.
76
Although these similarities under the VFHL may not afford
persons with disabilities any greater protection than what is
provided under federal fair housing law, the extensive
similarities do help to significantly consolidate the legal
framework that housing providers must adhere to in their
day-to-day business operations. This arguably makes it easier
for Virginia housing providers to understand and abide by both
sets of fair housing laws, but it also raises the risk that the
housing provider will be found to have violated both the FHA
and VFHL.
77
D. Americans with Disabilities Act of 1990
Fair housing law is certainly not the only statutory
protection for individuals with disabilities. Perhaps the most
well-known civil rights law pertaining to persons with
disabilities is the Americans with Disabilities Act of 1990
(“ADA”),
78
which President George H.W. Bush signed into law
on July 26, 1990.
79
The ADA has been extremely influential in
affording greater rights and protections to individuals living
with a disability.
80
However, its influence in the housing context
75. Id.
76. For a more in-depth discussion of this interactive review requirement,
see infra Part II.
77. See, e.g., Matarese v. Archstone Pentagon City, 795 F. Supp. 2d 402,
431 (E.D. Va. 2011) (finding defendants in violation of both the FHA and VFHL
for discriminating against plaintiffs on the basis of their disability), aff’d in
part, vacated in part, 468 F. App’x 283 (4th Cir. 2012).
78. 42 U.S.C. §§ 12101–12313.
79. See 25th Anniversary of the Americans with Disabilities Act, N
AT’L
ARCHIVES, https://perma.cc/S8AK-2B5H (recounting the signing of the ADA by
President Bush in 1990).
80. See Nora McGreevy, The ADA Was a Monumental Achievement 30
Years Ago, but the Fight for Equal Rights Continues, S
MITHSONIAN MAG. (July
24, 2020), https://perma.cc/U2FB-RRDQ (discussing the passage of the ADA
and its lasting impact); Allison Norlian, 30 Years Later: How the ADA Changed
ADDRESSING MENTAL DISABILITY HEAD ON 373
has been limited since its coverage is narrowed to prohibiting
discrimination in places of public accommodation.
81
Unlike
hotels, day care centers, or public schools, for example,
residential facilities like apartments and condominiums are not
required to comply with the ADA as they are not considered
places of public accommodation.
82
Unless a housing provider is
legally considered “public housing”
83
or takes specific action to
open itself up to the public, the ADA is inapplicable to that
housing provider’s actions.
84
Only the FHA reaches far enough
within the privacy of a private residence to effect equal
protection from disability discrimination.
85
For instance, the ADA would afford an individual living in
a nursing home protection against discrimination on the basis
of his or her disability as nursing homes are considered public
housing; however, that same individual would not be able to
assert protection under the ADA for disability discrimination if
that individual was living in a private apartment. Even so,
certain spaces, such as leasing and sales offices, swimming
Life for People With Disabilities, FORBES (July 21, 2020),
https://perma.cc/3UZZ-L9UA (interviewing individuals with disabilities and
reporting on their opinions of the ADA’s impact).
81. Title III of the ADA prohibits discrimination based on disability in
any place of public accommodation. See 42 U.S.C. § 12182(a) (outlining the
ADA’s reach to places of accommodation); Burnett, supra note 60, at 455
(noting the ADA is “designed to prevent discrimination in public
accommodations, commercial facilities, employment, state and local
government services, transportation, and telecommunications” (emphasis
added)).
82. See H.R.
REP. NO. 101-485(II), at 100 (1990) (explaining the FHA, not
Title III of the ADA, covers residential housing); see, e.g., Regents of
Mercersburg Coll. v. Rep. Franklin Ins. Co., 458 F.3d 159, 165 n.8 (3d Cir.
2006) (“[R]esidential facilities such as apartments and condominiums are not
transient lodging and, therefore, not subject to ADA compliance.”).
83. See Disability Overview, U.S.
DEP’T HOUS. & URBAN DEV.,
https://perma.cc/R5EW-2QFY (specifying that Title II of the ADA prohibits
discrimination in housing “when the housing is provided or made available by
a public entity regardless of whether the entity receives federal financial
assistance”); id. (noting that Title II of the ADA is applicable to “housing
operated by public housing agencies that meet the ADA’s definition of ‘public
entity,’ and housing operated by States or units of local government”).
84. See Facilities Covered by the ADA, U.S.
ACCESS BD.,
https://perma.cc/6F4B-DEC9 (discussing the ADA’s inapplicability to places of
private accommodation).
85. See supra notes 81–82 and accompanying text.
374 81 WASH. & LEE L. REV. ONLINE 359 (2024)
pools, playgrounds, and fitness centers, when open to the
general public, are still subject to the ADA’s requirements; thus,
these spaces present the potential for violation of both fair
housing law and the ADA.
86
II. R
EASONABLE ACCOMMODATION REQUESTS: TO GRANT OR
NOT TO GRANT
A. What Is a Reasonable Accommodation Request, and When
Must It Be Granted?
As the name tends to convey, reasonable accommodation
requests are requests for a housing provider to make a change,
exception, or adjustment to a rule, policy, practice, or service the
housing provider ordinarily adheres to in their operations.
87
What the actual request looks like, however, varies
substantially case-by-case as fair housing laws both federally
and in Virginia grant significant flexibility in how
accommodation requests may be made to a housing provider.
88
No specific form is required,
89
nor are there any specific timing
requirements that dictate when or within what time frame the
86. Compare Intermountain Fair Hous. Council v. Orchards at Fairview
Condo. Ass’n, No. 1:09-cv-522-CWD, 2011 U.S. Dist. LEXIS 10466, at *27–30
(D. Idaho Jan. 18, 2011) (finding condominium’s community guideline against
unaccompanied minor children in the swimming pool in violation of the FHA
as it discriminated on the basis of familial status), with Cohan v. Ocean Club
at Deerfield Beach Condo Ass’n, No. 14-60196-CIV, 2014 U.S. Dist. LEXIS
41090, at *4–6 (S.D. Fla. Mar. 27, 2014) (contemplating whether a private
condominium’s swimming pool was within the scope of the ADA since the
condominium operated “short-term rentals of the variety normally associated
with hotels or inns”).
87. See Office of Fair Housing and Equal Opportunity, Reasonable
Accommodations and Modifications, U.S.
DEP’T HOUS. & URBAN DEV.,
https://perma.cc/P245-VEBV (defining a reasonable accommodation as “a
change, exception, or adjustment to a rule, policy, practice, or service”); see also
42 U.S.C. § 3604(f)(3)(b) (outlining the FHA’s reasonable accommodation
requirement); V
A. CODE ANN. § 36-96.3(B) (2022) (outlining the VFHL’s
reasonable accommodation requirement).
88. See Ligatti, supra note 39, at 88–89 (discussing the flexible standard
for making a reasonable accommodation request).
89. See id. at 88 (“Accommodation requests need not be in any specific
form, may be written or oral, and do not need to use any specific language.”).
ADDRESSING MENTAL DISABILITY HEAD ON 375
request for accommodation must be made.
90
Rather, the general
rule of thumb is that housing providers have a standing duty to
grant accommodation requests provided the request meets the
four—arguably ambiguous—requirements outlined in the
FHAA (“FHAA test”).
91
Under the FHAA test, a housing provider is under a legal
duty to grant a resident’s accommodation request when (1) the
request is made by or on behalf of a person suffering from an
FHAA-qualifying disability, (2) the housing provider knows or
should know of the disability, (3) the request is necessary to
afford the person an equal opportunity to enjoy his or her
property, and (4) the request is reasonable.
92
Of the four
requirements, the first is the least ambiguous, as any disability
constituting a physical or mental impairment that substantially
limits one or more major life activities qualifies as a disability
under the FHAA.
93
This may include, for example, a vision
impairment that inhibits a person from safely navigating
around his or her apartment or a mental disorder that severely
limits an individual’s ability to leave the confines of their own
home.
94
The other three requirements, however, pose significant
challenges for housing providers as they are the most
ambiguous and difficult to answer yet so very crucial in
90. See id. at 88–89 (“There is also no particular timing requirement. In
eviction cases, for instance, reasonable accommodation requests can be made
at any time prior to the actual physical eviction of the tenant.”).
91. See infra note 92 and accompanying text.
92. See Ligatti, supra note 39, at 87 (outlining the FHAA test). These four
requirements are the exact same requirements a claimant would have to show
in order to state a claim for failure to accommodate. See, e.g., Dubois v. Ass’n
of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2006)
(outlining the requirements necessary to prevail on a claim for failure to
accommodate); Fedynich v. Boulder Hous. Partners, No. 3:20cv165 (DJN),
2020 U.S. Dist. LEXIS 164368, at *23 (E.D. Va. Sept. 8, 2020)
To state a claim alleging a failure to accommodate under the FHA, a plaintiff
must show that (1) she suffers from a disability under the definition set out in
the FHA, (2) the defendant knows of the disability or reasonably should know,
(3) the accommodation is reasonable and necessary to afford the plaintiff an
equal opportunity to use and enjoy the dwelling, and (4) the defendant refused
to make such an accommodation.
93. See 42 U.S.C. § 3602(h)(1) (defining disability under the FHA).
94. See, e.g., The Fair Housing Act, U.S.
DEP’T JUST.,
https://perma.cc/BS8A-8MKU (last updated June 22, 2023) (listing various
disabilities that qualify under the FHAA).
376 81 WASH. & LEE L. REV. ONLINE 359 (2024)
determining whether an accommodation request must be
granted.
95
If all four requirements of the FHAA test are met by an
accommodation request, then the housing provider has no choice
but to grant the request.
96
If, however, the housing provider
receives a request that appears on its face to not meet the
requirements of the FHAA test, then the housing provider is still
not entitled to outrightly deny the request, at least not right
away.
97
Rather, the housing provider must engage in an
interactive process with the requesting party to determine
whether a reasonable, alternative solution can be agreed upon
and put into place.
98
Guidance from the U.S. Department of
Justice (“DOJ”) makes abundantly clear that in determining
whether a proposed accommodation meets the tenant’s
disability-related needs, the individual with the disability is the
person who understands their disability and their needs the
best; thus, they should be the person who has the primary
influence on how the requested accommodation should
ultimately be granted.
99
Of course, the obligations imposed upon housing providers
by the reasonable accommodation requirement are not without
their limits.
100
Housing providers are not required to do “all that
95. See infra Part II.C.
96. See supra notes 91–92 and accompanying text.
97. See Ligatti, supra note 39, at 89 (“Housing providers may not reject
accommodation request out of hand. Instead they are instructed to engage in
an interactive process with tenants requesting reasonable accommodations.”).
98. See J
OINT STATEMENT, supra note 57, at 7 (emphasizing the
importance of an “interactive process” with an open line of communication
between the housing provider and requesting person to work out a solution
that accommodates the person’s disability within reason).
99. See id. at 8
However, providers should be aware that persons with disabilities
typically have the most accurate knowledge about the functional
limitations posed by their disability, and an individual is not
obligated to accept an alternative accommodation suggested by the
provider if she believes it will not meet her needs and her preferred
accommodation is reasonable.
Ligatti, supra note 39, at 89 (discussing the deference housing providers
should give to persons with disabilities when determining how to grant a
request for reasonable accommodation).
100. See Eisner, supra note 50, at 445 (“While the FHAA aims to eliminate
the housing discrimination confronting disabled persons, the affirmative
ADDRESSING MENTAL DISABILITY HEAD ON 377
is ‘humanly possible’” to accommodate an individual with a
disability.
101
In fact, an accommodation may be considered
unreasonable if granting it would impose a fundamental
alteration to the housing provider’s program or entail an undue
financial or administrative burden on the housing provider.
102
This undue burden analysis, as it is commonly referred to as,
determines “reasonableness” by looking at (1) the financial
resources of the housing provider, (2) the benefits the
accommodation would afford to the requestor, and (3) the
possibility of a less expensive option that would still meet the
disability-related need.
103
Should the requested accommodation
fail this analysis, courts are more likely to find the request
unreasonable and not an accommodation the housing provider
is obligated to grant.
104
Housing providers are also statutorily entitled to deny an
accommodation request if the “person on whose behalf the
request for an accommodation was submitted is not disabled” or
the requesting person does not identify a disability-related need
for the accommodation.
105
A person is only considered “disabled”
for purposes of the FHA and VFHL if that person (1) has a
“physical or mental impairment which substantially limits one
obligation it imposes on landlords to accommodate disabled tenants is not
without limitation.”).
101. Id. at 446.
102. Ligatti, supra note 39, at 88; see Eisner, supra note 50, at 446 (“An
accommodation will not be considered reasonable, if, as a result of making the
accommodation, the landlord is either unduly burdened or shoulders an undue
hardship, and the principal goal of the requirement at issue is undermined.”);
see also V
A. CODE ANN. § 36-96.3:2(A) (2022) (explaining when an
accommodation request is unreasonable).
103. See VA. CODE ANN. § 36-96.3:2(C) (listing the factors considered in
determining whether an accommodation poses an undue financial and
administrative burden); Ligatti, supra note 39, at 88 (discussing the factors
considered in an undue burden analysis).
104. See, e.g., Huberty v. Wash. Cnty. Hous. & Redevelopment Auth., 374
F. Supp. 2d 768, 775 (D. Minn. 2005) (finding tenant’s requested
accommodation unreasonable “because it would work a fundamental
alteration of the Section 8 program” by requiring the housing provider pay the
tenant’s rent, regardless of financial need).
105. See V
A. CODE ANN. § 36-96.3:2(D) (specifying four scenarios whereby
a reasonable accommodation may duly be denied); J
OINT STATEMENT, at 6 (“To
show that a requested accommodation may be necessary, there must be an
identifiable relationship, or nexus, between the requested accommodation and
the individual’s disability.”).
378 81 WASH. & LEE L. REV. ONLINE 359 (2024)
or more of such person’s major life activities,” (2) has a record of
having such an impairment, or (3) is regarded as having such an
impairment.
106
The requestor must, therefore, meet the
requirements of this definition, as well as specify a plausible
nexus between his or her disability and the requested
accommodation sought, in order for the housing provider to be
legally required to grant the request.
107
If the requestor does not
have a disability or fails to specify a plausible nexus between his
or her disability and the requested accommodation, the housing
provider may ultimately deny the accommodation.
108
Both
grounds for denial relate back to two of the four core
requirements of the FHAA test: first, that the individual
requiring the accommodation does in fact have a disability, and
second, that the requested accommodation is necessary because
of a disability-related need.
109
In practice, evaluating accommodation requests based on
these standards is far from a simple endeavor. Federal and state
fair housing law certainly afford some black and white answers
to housing providers about how to handle the grant of an
accommodation request, but the uniqueness of real-life
situations and circumstances often makes the evaluation far
from clear. Many housing providers—and their legal counsel, for
that matter—struggle with understanding where exactly to
draw the line, especially so when the requesting party is
requesting an accommodation due to a mental disability. The
unfortunate result is that, all too often, housing providers are
denying accommodation requests in violation of fair housing law
106. Neither the FHA nor the VFHL recognize the “current, illegal use of
or addiction to a controlled substance” as a disability. See 42 U.S.C. § 3602(h);
V
A. CODE ANN. § 36-96.1:1 (2022).
107. See J
OINT STATEMENT, supra note 57, at 6 (emphasizing the
importance of a reasonable accommodation request identifying the
relationship or nexus between the requested accommodation and the
individual’s disability); e.g., Godlove v. Martinsburg Senior Towers, L.P., No.
3:14-CV-132(GROH), 2015 U.S. Dist. LEXIS 51808, at *11–12 (N.D. W. Va.
Apr. 21, 2015) (dismissing reasonable accommodation claim because plaintiff
failed to allege a nexus between his underlying disability and the requested
accommodation sought).
108. See Godlove, 2015 U.S. Dist. LEXIS 51808, at *11–12 (finding
defendant was entitled to deny the requested accommodation because plaintiff
failed to allege a plausible nexus).
109. See supra note 92 and accompanying text.
ADDRESSING MENTAL DISABILITY HEAD ON 379
and consequently jeopardizing the livelihood of those living with
a disability.
B. Frequently Seen Issue Spots
The challenge of discerning when a reasonable
accommodation request must be granted has precipitated a
substantial amount of litigation and case law attempting to
make sense of the requirement’s unfortunate ambiguity.
Nowhere is this more apparent than in the context of reasonable
accommodations made on the basis of a mental disability. Such
requests seem to pose a significant problem for housing
providers, especially so in a few narrow circumstances,
including but not limited to hoarding disorder
110
and “second
chance” accommodations.
111
There have also been numerous
claims alleging retaliation by housing providers, particularly
when a housing provider moves to evict a tenant or fails to renew
a tenant’s lease subsequent to the tenant’s request for
accommodation.
112
1. Hoarding Disorder
One of the significant areas of challenge for housing
providers are accommodation requests made on the basis of
hoarding disorder, a mental disability characterized by an
abnormal fear of parting with one’s possessions, even those that
are trivial.
113
As a result, persons with hoarding disorder have
an immense amount of clutter in their homes, which tends to
110. See, e.g., Brian Gilmore, “Have You Seen Her?”: Mental Health and
the Reasonable Accommodations Defense in Landlord Tenant Proceedings, 20
J.L. SOC’Y 141, 141–75 (2020) (discussing the use of a reasonable
accommodation request to save a tenant who had been living in unsanitary
conditions from eviction).
111. See Haley Adams, A Public Health Approach to Addiction Starts at
Home, 135 H
ARV. L. REV. F. 391, 399–401 (2022) (summarizing the case law
and legal standards on “second chance” accommodations).
112. See, e.g., Costello v. Malcolm, No. 5:12cv00025, 2012 U.S. Dist. LEXIS
90248, at *15–17 (W.D. Va. June 29, 2012) (presiding over plaintiff’s claim for
retaliation under the FHA).
113. See What is Hoarding Disorder, A
M. PSYCHIATRIC ASS’N,
https://perma.cc/L3BJ-S5SW (defining hoarding disorder and discussing its
causes and manifestations).
380 81 WASH. & LEE L. REV. ONLINE 359 (2024)
lend itself to an immense amount of contamination too.
114
The
substantial health and safety risks that such living conditions
pose to the resident and neighboring residents are a continuous
concern for housing providers.
115
Most leasing agreements
contain requirements that specify the resident shall keep the
home’s premises clean and in safe condition,
116
which many
persons with hoarding disorder find themselves in substantial
breach of due to their disability.
117
Housing providers, unsurprisingly, struggle to reconcile
these breaches of contract with fair housing law’s reasonable
accommodation requirement.
118
In their eyes, the reasonable
accommodation requirement in hoarding circumstances
overlooks the fundamental nature of the leasing transaction and
the housing provider’s business, instead favoring a stance of
ignorance towards the breach. On a practical level, it can also be
extremely difficult for housing providers to distinguish general
squalor that does not stem from any particular mental disability
from general squalor that is very much the direct byproduct of a
hoarding disorder.
For instance, in Douglas v. Kriegsfeld Corp.,
119
litigation
ensued after a tenant, who had been living in squalor, made a
reasonable accommodation request to her landlord after she was
served with a thirty-day notice to “cure or quit.”
120
The
apartment’s conditions were allegedly found to be so derelict
that the landlord’s representative had referred the tenant for
114. Id.
115. Ligatti, supra note 39, at 81.
116. See, e.g., V
A. CODE ANN. § 55.1-1227(A)(2) (2022) (requiring tenant’s
to keep the dwelling unit “as clean and safe as the condition of the premises
permit”, regardless of the provisions of the tenant’s rental agreement).
117. Compare Ligatti, supra note 39, at 84 (“[W]hen housing laws are
implicated, it is difficult for any landlord to confront a tenant regarding
hoarding behaviors and reach an effective solution”), with id. at 102 (“A
landlord has the right to demand that health or safety hazards under the lease
or under state or local law will be remedied.”).
118. See James Campbell, Hoarding Disorder: Situations and Solutions for
Property Managers, N
AT’L APARTMENT ASS’N (Nov. 29, 2022),
https://perma.cc/9K5N-KWBS (last updated Jan. 10, 2023) (reporting on the
difficulties housing providers experience when overseeing tenants who hoard).
119. 884 A.2d 1109 (D.C. Cir. 2005).
120. Id. at 1115.
ADDRESSING MENTAL DISABILITY HEAD ON 381
psychiatric evaluation.
121
When the tenant subsequently failed
to remedy the situation post-notice, the landlord filed to reclaim
the apartment, an action which ultimately precipitated the
request for a reasonable accommodation by the tenant’s
counsel.
122
Despite being in substantial breach of her lease, the
tenant’s attorney argued that the tenant was nevertheless
entitled to a reasonable accommodation because the filthy living
conditions were a byproduct of her mood disorder, which
affected her ability to keep the apartment safe and sanitary.
123
Counsel, however, never specified how the situation could be
remedied through an accommodation.
124
The trial court initially justified the housing provider’s
failure to grant the requested accommodation, holding that the
state of the apartment constituted a direct threat to the health
and safety of other residents in the building.
125
Yet, on appeal,
the appellate court pushed back against the trial court’s
application of the “direct threat” exception.
126
Instead, the
appellate court ruled that genuine issues of material fact existed
as to whether the situation could have been remedied in some
alternative manner so as to still afford the tenant a reasonable
accommodation.
127
In refusing to accept the trial court’s
relatively straightforward application of the “direct threat”
exception, the appellate court ultimately called into question
when, if at all, reasonable accommodations must be granted for
tenants with hoarding disorder or hoarding-like tendencies.
121. Id.
122. Id.
123. Id. at 1116.
124. Id.
125. Id. at 1119.
126. See id. at 1125
Contrary to the trial court’s understanding, however, federal courts
construing the Fair Housing Act have held—and we agree—that
this exception does not come into play until after the trial court has
evaluated the landlord’s response to a requested accommodation
and has determined, after a factual inquiry, that no reasonable
accommodation could ameliorate the situation sufficiently to
protect the health, safety, and property of others.
127. Id. at 1144.
382 81 WASH. & LEE L. REV. ONLINE 359 (2024)
2. Second Chance Accommodations and Retaliation
“Second chance” accommodations are another challenging
area for housing providers. As a special subset of
accommodations, they are essentially where a tenant, instead of
requesting a permanent modification to a housing provider’s
rule, policy, procedure, or service, requests a “second chance” to
remain in a residence following a lease violation.
128
As a
last-ditch attempt to avoid eviction, the resident attempts to
“argue that the lease violation was a result of their disability,
such that evicting them because of the violation constitutes a
failure to reasonably accommodate.”
129
In the context of mental
illness and mental disability, these types of accommodations are
generally seen after a tenant violates their lease due to some
form of undesirable, violent, or illegal behavior that stems from
the tenant’s mental illness.
130
For instance, in 529 W. 29th LLC v. Reyes,
131
a tenant
requested a “second chance” accommodation after he breached
his lease by committing a “pattern of conduct that led to two
fires in three months” in his apartment.
132
The apartment
provider unsurprisingly moved for eviction, but the trial court
determined that the tenant was entitled to a reasonable
accommodation and chose instead to issue a stay of the warrant
of eviction.
133
The trial court reasoned that the tenant’s
condition had greatly improved as a result of an intensive
treatment program and social service assistance, lending the
court in favor of granting him a second chance.
134
The appellate
court agreed and affirmed the trial court’s holding.
135
Other
courts have also been inclined to rule this way, despite fair
housing law’s “direct threat” exception, provided there is
128. See Adams, supra note 111, at 399 (discussing “second chance”
accommodations).
129. Id.
130. Id.
131. 100 N.Y.S.3d 475 (N.Y. App. Term 2019).
132. Id. at 477.
133. See id. (finding the trial court properly stayed issuance of the warrant
of eviction as a reasonable accommodation).
134. Id. at 478.
135. Id. at 479.
ADDRESSING MENTAL DISABILITY HEAD ON 383
substantial assurance that the tenant is working productively
towards not repeating such behaviors in the future.
136
Another area where housing providers tend to see requests
for second chances is when a tenant is repeatedly behind on rent
and attempts to seek a reasonable accommodation for their
failures to pay rent on time. When those failures arise from
tenants who rely on disability benefits to pay their rent, these
scenarios are generally resolved easily by modifying the due
date of the tenant’s rental payments so as to align with the date
the tenant receives his or her disability benefits.
137
The situation
is more complicated, however, when the repeated failures to pay
rent on time arise from less legitimate reasons, such as when a
tenant attempts to excuse their delinquency in paying rent on
the sole ground that the failure should be accommodated simply
because the tenant has a disability.
138
Although the courts
generally seem to side with housing providers in these
situations, upholding the subsequent evictions as legitimate,
139
such is not always the case as courts generally undertake a
cost-benefit analysis to determine whether accepting late rental
payments constitutes a reasonable accommodation.
140
136. See, e.g., Boston Hous. Auth. v. Bridgewaters, 898 N.E.2d 848, 861
(Mass. 2009) (rejecting housing provider’s attempt to invoke the direct threat
exception because the tenant was in treatment for her bipolar disorder).
137. See, e.g., Galia v. Wasatch Advantage Grp. LLC, No.
19-cv-08156-JCS, 2021 U.S. Dist. LEXIS 73982, at *14–16 (N.D. Cal. Apr. 16,
2021) (finding a tenant’s request for a later rent due date to be a valid
reasonable accommodation request because the tenant’s SSDI payments
arrived later in the month).
138. See, e.g., Stephenson v. Ridgewood Vill. Apartments, No.
1:93-CV-614, 1994 U.S. Dist. LEXIS 16924, at *12–13 (W.D. Mich. Nov. 10,
1994) (finding no discrimination when a housing provider refused to make a
reasonable accommodation for a tenant who justified their repeated failures to
pay rent merely on the fact that she suffered from manic depressive disorder).
139. See, e.g., Dempsey v. Hous. Operations Mgmt., Inc., No. 3:15-CV-615
(SRU), 2016 U.S. Dist. LEXIS 21455, at *3 (D. Conn. Feb. 23, 2016)
[T]he payment of rent as consideration for the right to possess and
use a property is the very basis and nature of the transaction
between a lessor and a lessee. The Fair Housing Act requires
housing providers to make reasonable accommodations for renters’
disabilities, but it does not undermine the nature of their
transactions or so fundamentally alter their relationship that it
removes eviction as a remedy for nonpayment of rent.
140. Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir. 1995).
384 81 WASH. & LEE L. REV. ONLINE 359 (2024)
These scenarios also present a significant risk to the
housing provider that they will be sued for retaliating against
the tenant who requested the accommodation.
141
Such a risk is
particularly apparent when the tenant requests a reasonable
accommodation just prior to eviction or nonrenewal of the lease,
since such circumstances tend to appear causally related.
142
Many courts have noted that even when a housing provider
exercises a contractually-specified right, such as a decision not
to renew a tenant’s lease, such conduct can still constitute
retaliation if the conduct is done to interfere with the tenant’s
rights under the FHA.
143
Determining what circumstances do
and do not constitute retaliation is, therefore, a highly
fact-specific endeavor with little to no bright line to help guide
housing providers in this arena.
144
C. Underlying Problems
Part of the difficulty housing providers face in granting
accommodation requests made on the basis of a mental
disability is rooted in the inherent tension created by the FHA’s
broad definition of what constitutes a disability coupled with the
inability of a housing provider to inquire into a person’s
disability.
145
Under the FHA, a person is considered “disabled,”
141. See 42 U.S.C. § 3617 (defining what actions constitute retaliation
under the FHA).
142. See, e.g., Hood v. Midwest Sav. Bank, 95 F. App’x 768, 779 (6th Cir.
2004) (noting that a successful claim for retaliation requires a showing that
there was a causal connection between plaintiff’s exercise of their FHA rights
and defendant’s conduct); Cooper v. PJ Apartments, LLC, No. 2:18-cv-1222,
2020 U.S. Dist. LEXIS 124024, at *19–22 (S.D. Ohio July 15, 2020) (finding
genuine issues of material fact as to whether housing provider’s non-renewal
of tenant’s lease subsequent to her request for reasonable accommodation
constituted retaliation).
143. See, e.g., Ponce v. 480 E. 21st St., LLC, No. 12 CIV.4828 (ILG) (JMA),
2013 U.S. Dist. LEXIS 122769, at *4 (E.D.N.Y. Aug. 28, 2013) (denying
housing provider’s motion to dismiss because the decision to not renew the
tenant’s lease post-request for accommodation could be considered a
retaliatory act under the FHA).
144. See Laird v. Fairfax Cnty., 978 F.3d 887, 893 (4th Cir. 2020)
(“Ultimately, retaliation claims and discrimination claims require fact-specific
analysis that ‘depend on the particular circumstances of the case.’”).
145. See Eisner, supra note 50, at 443 (indicating that the definition of
handicap under the FHA is broad in recognition of the historical
ADDRESSING MENTAL DISABILITY HEAD ON 385
for purposes of fair housing law, if the person has a mental or
physical impairment that substantially limits one or more major
life activities.
146
Persons who have a record of such an
impairment will meet this standard, as well as persons who do
not have a record but who are generally regarded as having such
an impairment.
147
The unintended problem created by such a
definition, especially with the leeway it gives to establishing a
person’s disability-status, is that it inherently creates a
challenge for both the individual and the housing provider when
it comes to meeting the FHA’s notice requirement,
148
especially
when the disability is a mental disability rather than a physical
disability since the former is not so readily visible.
The challenge lies in the fact that housing providers are not
under a duty to grant an accommodation request unless the
request is considered reasonable, and requests are not
considered reasonable unless the housing provider knows or
should know of the requestor’s disability.
149
In other words, the
housing provider has to be on notice of the requesting
individual’s disability. This issue of notice is quite challenging,
however, considering the degree to which housing providers are
restricted in when and how they can inquire into a resident’s
disability status.
150
Housing providers are not allowed to
outrightly inquire into a person’s disability status, and persons
living with a disability are—for obvious reasons—not required
to disclose their disability.
151
Thus, it becomes a tricky balance
for housing providers to navigate when the law seems to forbid,
or at least highly discourage, discussion of an individual’s
disability yet makes the duty to grant accommodations so highly
discrimination that has “often swept widely and affected many persons not
generally associated with traditional notions of handicap”).
146. 42 U.S.C. § 3602(h)(1).
147. Id.
148. See supra note 92 and accompanying text.
149. Id.
150. See J
OINT STATEMENT, supra note 57, at 11 (“Under the Fair Housing
Act, it is usually unlawful for a housing provider to (1) ask if an applicant for
a dwelling has a disability . . . or (2) ask about the nature or severity of such
persons’ disabilities. Housing providers may, however, make the following
inquiries . . . .”); VA. CODE ANN. § 36-96.3:2 (2022) (forbidding additional
inquiry into a person’s disability unless the reasonableness and necessity for
the accommodation was not established).
151. See supra note 150 and accompanying text.
386 81 WASH. & LEE L. REV. ONLINE 359 (2024)
dependent on whether one’s disability, in essence, has been
discussed.
Further compounding the difficulty is the extremely broad
nature of what notice can look like in practice, as it can take a
variety of forms that are less direct than oral or written
communication with a housing provider.
152
For instance, in
Anast v. Commonwealth Apartments,
153
the Northern District of
Illinois determined that the defendant, a largescale housing
provider, was indeed aware of a tenant’s mental disability but
not because the tenant ever properly informed the housing
provider of the disability.
154
Rather, the court reasoned that the
housing provider was aware of the tenant’s disability because
the housing provider’s building manager had called police on the
tenant several times due to her presentation of mental illness.
155
In Taylor v. Harbour Pointe Homeowners Ass’n,
156
the
Western District of New York arrived at a different conclusion,
ultimately finding that there had been a lack of sufficient notice
of the disability for the plaintiff to have been discriminated
against by her homeowners association (“HOA”).
157
The
plaintiff, who owned a home in a neighborhood governed by an
HOA, filed a claim asserting the HOA had discriminated against
her by failing to grant a reasonable accommodation for the
deteriorating appearance of her house.
158
Despite never formally
notifying the association of her disability or need for
accommodation, the homeowner attempted to rely on such
“appearances” as qualifying as sufficient notice to the HOA of
152. See, e.g., Galia v. Wasatch Advantage Grp., LLC, No.
19-cv-08156-JCS, 2021 U.S. Dist. LEXIS 73982, at *17–18 (N.D. Cal. Apr. 16,
2021) (considering housing provider on notice because plaintiff used SSDI
benefits to pay rent each month).
153. 956 F. Supp. 792 (N.D. Ill. 1997).
154. See id. at 795 (discussing the property manager’s phone calls to
police); id. at 801 (denying defendant’s motion to dismiss).
155. Id. at 801.
156. No. 09-CV-257, 2011 U.S. Dist. LEXIS 16148 (W.D.N.Y. Feb. 16,
2011), aff’d, 690 F.3d 44 (2d Cir. 2012).
157. See id. at *14 (finding the plaintiff failed to notify the HOA of her
disability); id. at *20 (granting the HOA’s motion for summary judgment).
158. Neighbors had complained to the HOA about the appearance of both
the exterior of plaintiff’s unit and the cluttered contents of plaintiff’s
glass-enclosed patio, which was visible from the main road of the community.
Id. at *4–8.
ADDRESSING MENTAL DISABILITY HEAD ON 387
her underlying mental disability.
159
The court ultimately sided
with the HOA, deciding that such “appearances” were not
sufficient notice of a disability.
160
Another confounding issue facing housing providers is the
great deal of flexibility and style that accommodation requests
are allowed to take.
161
Although the law does not currently
require accommodation requests take on any specific form or
include any specific “magic words,”
162
courts have determined
that requests for accommodation must state sufficient facts to
indicate to a reasonable housing provider that further inquiries
are necessary to determine whether an accommodation is
necessary.
163
Simply referencing “mental health needs,”
“disabilities,” “medical conditions,” or “health issues,” for
example, is not enough detail from which a reasonable housing
provider can infer that the requesting individual is currently
suffering from an FHA-qualifying disability.
164
The individual
must do more than simply label themselves as disabled in order
to make a sufficient reasonable accommodation request that can
withstand scrutiny.
165
He or she must also identify a plausible
159. See id. at *14 (“[T]he record is clear that plaintiff did not make a
‘sufficiently direct and specific request’ to put defendants on notice that an
accommodation of plaintiff’s disability might be necessary . . . .”); id. at *15–
18 (explaining why plaintiff’s claim for failure to accommodate under the FHA
failed).
160. See id. at *20 (granting defendants motion for summary judgment).
161. See, e.g., Douglas v. Kriegsfeld Corp., 884 A.2d 1109, 1122–23 (D.C.
Cir. 2005) (finding tenant’s failure to identify the type of accommodation she
was requesting not fatal).
162. Warren v. S&S Prop. Mgmt., No. 1:17-CV-4187, 2020 U.S. Dist.
LEXIS 161859, at *15 (N.D. Ga. June 3, 2020).
163. See, e.g., Highland Mgmt. Grp. v. Moeller, 2019 Minn. Dist. LEXIS
207, at *12 (2019) (noting there should be sufficient facts to incite appropriate
inquiries); Hunt v. Aimco Props., L.P. 814 F.3d 1213, 1226 (11th Cir. 2016)
(refusing to determine what form the request for a reasonable accommodation
must take); Conneen v. MBNA Am. Bank, N.A., 334 F.3d 318, 332 (3d Cir.
2003) (“The law does not require any formal mechanism or ‘magic words,’ to
notify an employer such as MBNA that an employee needs an
accommodation.”).
164. See Fedynich v. Boulder Hous. Partners, No. 3:20cv165, 2020 U.S.
Dist. LEXIS 164368, at *24 (E.D. Va. Sept. 8, 2020) (“Plaintiffs fail to plausibly
allege that they suffer from any disabilities as defined under the FHA. Instead,
Plaintiffs simply reference ‘mental health needs,’ ‘disabilities,’ ‘medical
conditions’ and ‘health issues.’”).
165. Id.
388 81 WASH. & LEE L. REV. ONLINE 359 (2024)
nexus between the alleged disability and the requested
accommodation, explaining how and why the accommodation is
necessary to ensure the disability-related need is properly
met.
166
DOJ and U.S. Department of Housing and Urban
Development (“HUD”) guidance is emphatic that housing
providers should generally default to approving reasonable
accommodation requests and defer to the requesting person’s
view of the accommodation, as he or she understands his or her
disability and needs best.
167
Yet, this standard is unhelpful for
housing providers who lack an understanding of mental
disabilities and ignores the threat of disability fraud that
housing providers face and which the DOJ undoubtedly
prosecutes.
168
The stark lack of further inquiry pushed by fair
housing regulations and guidance, even in circumstances where
such inquiry might actually be beneficial for helping secure an
appropriate reasonable accommodation for a tenant, creates a
prime avenue for fraud and deception.
169
Clever tenants are able
to exploit this weakness by manipulating the law to their
advantage, disadvantaging those who live with a disability and
who desperately need accommodations yet get pinched out by
limitations on space and resources.
170
166. See id. at *24–26 (discussing the nexus requirement and why it is
necessary).
167. See J
OINT STATEMENT, supra note 57, at 8 (“[P]roviders should be
aware that persons with disabilities typically have the most accurate
knowledge about the functional limitations posed by their disability . . . .”).
168. See Burnett, supra note 60, at 468
While this may seem to be an extreme situation, unfortunately it is
not; it occurs every day. These authors have encountered several
situations in which a requesting party has a friend or family
member physician write a “prescription” for an emotional support
animal, knowing full well that the requesting party does not suffer
from a disability or handicap. HUD and its investigative agencies
frightened most associations from challenging even the most
egregious violations—until recently, that is.
169. Id.
170. See id. (discussing fraud and deception in reasonable accommodation
requests).
ADDRESSING MENTAL DISABILITY HEAD ON 389
III. C
ONSEQUENCES AND SIGNIFICANCE OF DECIDING
WRONGLY
A. Legal Investigation, Procedure, and Remedies
There are two avenues of recourse for individuals who
believe that they have been discriminated against by a housing
provider’s refusal to grant a reasonable accommodation.
171
The
individual may either proceed administratively by filing a
complaint with HUD, which will open an investigation to review
the claim of alleged discrimination or proceed judicially by filing
a lawsuit in federal or state court.
172
1. Administrative Review by HUD
If an individual chooses to proceed administratively, he or
she can initiate the process of administrative review by filing a
complaint detailing the alleged discrimination with HUD’s
Office of Fair Housing and Equal Opportunity.
173
Said complaint
must be filed within one year of the date of the last alleged
incident of discrimination in order for it to be considered
reviewable by HUD.
174
After the complaint is appropriately filed
with HUD, notice is subsequently served upon the respondent
“identifying the alleged discriminatory housing practice and
advising such respondent of the procedural rights and
obligations” entitled to such respondent.
175
The receipt of this
notice generally serves as a the first indication to respondent
that a fair housing violation may have been committed and legal
counsel should be obtained or notified. Following such receipt,
171. See The Fair Housing Act, U.S. DEP’T JUST., https://perma.cc/SJX7-
JJQS (last updated June 22, 2023) (noting the two options for recourse are
either filing a complaint with HUD or filing a lawsuit in federal or state court).
172. Id. Alternatively, should the Secretary of HUD become aware of a
discriminatory incident, he or she may file a complaint on their own initiative.
42 U.S.C. § 3610(a)(1)(i).
173. See 42 U.S.C. § 3610(a) (outlining how to file a complaint with HUD);
24 C.F.R. § 8.56(c)(1) (2023) (detailing the specific requirements for filing a
complaint with HUD); see also File a Complaint, U.S.
DEP’T HOUS. & URBAN
DEV., https://perma.cc/DNM9-8ZY3 (discussing the process of filing a
complaint).
174. 42 U.S.C. § 3610(a)(1)(A)(i).
175. Id. § 3610(a)(1)(B)(ii).
390 81 WASH. & LEE L. REV. ONLINE 359 (2024)
respondent then has 10 days to file an answer to the
complaint.
176
Once these due process elements have been met, HUD then
begins their formal investigation into the complaint’s alleged
discrimination, which kickstarts a 100-day period whereby an
assigned HUD investigator works in conjunction with the
complainant and the respondent to arrive at a determination of
whether the alleged discrimination did in fact occur and
whether it was in violation of fair housing law.
177
It is not
uncommon for the investigatory period to run longer than the
standard 100-day window, particularly if the investigator is
unable to formulate sufficient findings within the designated
period of time.
178
For the respondent, HUD’s investigative period is
unsurprisingly a tense time, especially as it can leave
respondent and respondent’s legal counsel feeling as though
they are boxing against an opponent in the dark. Although the
respondent is legally entitled to a copy of the initial complaint,
179
the investigation is otherwise a closed administrative process
with little to no information communicated to the complainant
or the respondent concerning what information the HUD
investigator has discovered during the investigation.
180
Even
the most well-intentioned and well-devised FOIA request will
likely not provide the parties with any information concerning
the investigation’s findings and will, instead, only work to
further any semblance of an adversarial relationship with the
176. Id. § 3610(a)(1)(B)(iii).
177. See id. § 3610(a)(1)(B)(iv) (specifying the investigation period is to last
for 100 days). The investigative period serves as the principal mechanism
whereby HUD determines “whether reasonable cause exists to believe that a
discriminatory housing practice has occurred or is about to occur.” Id.
§ 3610(g)(1).
178. See 7 Pitfalls to Avoid When Responding to Fair Housing Complaints,
F
AIR HOUS. COACH (Apr. 19, 2022), https://perma.cc/W45M-GNKC (indicating
most investigations run longer than 100 days); see also 42 U.S.C.
§ 3610(a)(1)(C) (setting forth the procedures for investigations that run longer
than 100 days).
179. 42 U.S.C. § 3610(a)(1)(B)(ii).
180. See id. § 3610(d)(2) (noting the information HUD obtains during its
investigation is only available to the aggrieved person and the respondent
after the investigation has been completed).
ADDRESSING MENTAL DISABILITY HEAD ON 391
HUD investigator.
181
It should, therefore, not be expected that
the HUD investigator will reveal information he or she received
from the complainant.
182
The discovery period of HUD’s investigation should be
expected to be thorough.
183
Frequent contact with the HUD
investigator is commonplace, and the respondent should expect
HUD to request witness statements or interviews, especially of
the respondent’s agents, if any, who may be implicated in the
alleged discrimination.
184
For example, the HUD investigator
will likely want to question any property managers who oversaw
the complainant’s tenancy, along with any other maintenance or
administrative personnel that may have been involved with the
complainant. The Secretary of HUD may also order subpoenas
and other forms of discovery to the same extent as may be
ordered in a civil action.
185
After HUD completes its investigation, it then prepares and
completes a final investigative report summarizing the
information retained during its investigation.
186
If HUD finds
that a discriminatory housing practice has likely occurred or is
about to occur, the Secretary will immediately issue a charge on
behalf of the aggrieved person that contains a statement
regarding the evidence found to have been determinative of
181. See U.S. DEP’T HOUS. & URBAN DEV., FOIA GUIDANCE (2006),
https://perma.cc/PT8C-9TDM (PDF) (explaining HUD’s right to withhold
information pertaining to open fair housing investigations); 24 C.F.R.
§§ 15.101–.110 (2023) (outlining HUD’s procedures for processing FOIA
requests). See generally ED GRAMLICH, NAT’L LOW INCOME HOUS. COAL., USING
THE
“FREEDOM OF INFORMATION ACT” FOR HOUSING ADVOCACY(2019),
https://perma.cc/VM74-2288 (PDF) (explaining how to use FOIA requests to
obtain records and documents from federal agencies like HUD).
182. See 42 U.S.C. § 3610(d)(2) (summarizing HUD’s policy to refrain from
sharing information related to or obtained during an open investigation).
183. See U.S.
DEP’T HOUS. & URBAN DEV., TITLE VIII COMPLAINT INTAKE,
INVESTIGATION, AND CONCILIATION HANDBOOK NO. 8024.1, ch. 7 (discussing in
detail HUD’s investigation process after receiving a complaint).
184. See id. at 7-1 (“Investigators gather evidence by interviewing
complainants, respondents and witnesses, and analyzing their respective
statements; collecting, organizing and analyzing related documents and
records; and inspecting and/or measuring the subject dwelling and
environment.”); id. at 7-33 (“If the respondent has named employees as
witnesses, the investigator should arrange to interview them separately.”).
185. 42 U.S.C. § 3611(a).
186. Id. § 3610(b)(5).
392 81 WASH. & LEE L. REV. ONLINE 359 (2024)
discrimination.
187
Such an issuance will also immediately
trigger the commencement of administrative law proceedings by
the DOJ.
188
Alternatively, if HUD does not find that a
discriminatory housing practice likely occurred, the Secretary
will promptly dismiss the complaint and make public disclosure
of such dismissal.
189
Dismissal of a complaint, however, does not
preclude the complainant from filing a private civil action if they
so choose.
190
Rather, the dismissal merely indicates the ends of
HUD’s involvement in the matter.
191
Throughout the investigatory period—beginning with the
filing of the complaint and ending with the filing of a charge or
dismissal—HUD is required to engage in conciliation efforts as
a means of resolving the matter.
192
Conciliation imposes upon
HUD investigators an obligation to attempt to bring
complainants and respondents together to not only work out a
just remedy for the alleged discrimination but also arrive at an
agreement that ensures such discriminatory practices do not
occur again.
193
Should the parties agree to conciliate, HUD
works with the parties to develop a written conciliation
agreement with terms outlining the expectations to be held of
respondent moving forward to ensure a repeat incident of
187. Id. § 3610(g)(2).
188. Id. § 3610(g)(2)(C).
189. Id. § 3610(g)(3).
190. See id. § 3613(a) (allowing an aggrieved person to file a civil action in
federal or state court regardless of whether the person filed a complaint with
HUD so long as the action is filed within two years of the alleged
discrimination).
191. See 24 C.F.R. § 103.225 (2023) (indicating HUD’s investigation and
involvement in the matter concludes upon a determination that no reasonable
cause exists to believe that a discriminatory housing practice has occurred or
is about to occur).
192. See 42 U.S.C. § 3610(b) (requiring HUD to engage in conciliation, to
the extent feasible, with respect to complaints the agency receives that allege
fair housing violations); see also 24 C.F.R §§ 103.300–.335 (2023) (outlining
HUD’s conciliation procedures).
193. See 24 C.F.R. § 103.300(b) (2023) (emphasizing that conciliation
should “attempt to achieve a just resolution of the complaint and to obtain
assurances that the respondent will satisfactorily remedy any
violations . . . and take such action as will assure the elimination of
discriminatory housing practices . . . in the future”).
ADDRESSING MENTAL DISABILITY HEAD ON 393
discrimination does not occur again.
194
HUD retains the right to
conduct compliance reviews of respondent’s practices to ensure
the respondent has not at any time breached the conciliation
agreement.
195
A believed breach of the conciliation agreement
would subject the respondent to civil action by the Attorney
General under Section 814(b)(2) of the FHA.
196
Nothing said or
done during the course of the conciliation process will be made
public nor will it be allowed to be used in subsequent fair
housing proceedings, unless with the written consent of the
concerned parties;
197
however, the final conciliation agreement
will be made public, unless the aggrieved person and the
respondent request nondisclosure and the Secretary determines
that disclosure is not required to further the purposes of the
FHA.
198
Ultimately, a housing provider’s decision to conciliate or not
conciliate is a voluntary decision that is highly dependent on the
specific circumstances of the alleged incident of discrimination.
Effective lawyering against a HUD complaint involves making
every attempt possible to ascertain from the HUD investigator
whether he or she is leaning towards or away from a finding of
discrimination, rather than resorting to conciliation as an easy
and quick fix. Good lawyers will ensure they have in hand
everything they need from their client, including but not limited
to emails, letters, phone call records, housing policies and
procedures, licenses, etc., in order to inform themselves of the
situation. A majority of cases HUD investigates end up with a
finding of “No Cause,” indicating that no discrimination was
found to have occurred; thus, legal counsel should be smart
194. See id. § 103.310(a) (“The terms of a settlement of a complaint will be
reduced to a written conciliation agreement. The conciliation agreement shall
seek to protect the interests of the aggrieved person, other persons similarly
situated, and the public interest.”).
195. See id. § 103.335 (indicating that HUD “may, from time to time,
review compliance with the terms of any conciliation agreement”).
196. Id.
197. See id. § 103.330(a) (prohibiting anything that is said or done during
the course of conciliation from being disclosed or used in a subsequent
administrative proceeding).
198. Id. § 103.330(b).
394 81 WASH. & LEE L. REV. ONLINE 359 (2024)
about evaluating the strength of their client’s position before
defaulting to conciliation.
199
2. Judicial Review by Federal or State Courts
Individuals who believe they have been the victim of
housing discrimination may also choose to file a lawsuit in
federal or state court irrespective of whether the administrative
process was exhausted prior to filing.
200
Courts have held,
however, that such actions are not ripe for review unless the
housing provider has first been given a reasonable opportunity
to accommodate the individual’s request.
201
If the housing
provider has been given such an opportunity but fails to do so,
the individual has two years after the occurrence or termination
of the alleged discriminatory housing practice to bring a claim
for failure to reasonably accommodate under 42 U.S.C. § 3604,
along with any other claims the individual may choose to raise
under state fair housing law, the Rehabilitation Act, or the
ADA.
202
In order to prevail on a claim for failure to accommodate
under 42 U.S.C. § 3604(f)(3)(B), plaintiffs are required to show
(1) he or she suffers from a disability as defined in the FHA; (2)
the defendant knows or reasonably should know of the
disability; (3) the accommodation is reasonable and necessary to
afford the plaintiff an equal opportunity to use and enjoy the
dwelling; and (4) the defendant refuses to make such an
199. In its 2021 Annual Report to Congress, HUD reported that, of the
7,543 complaints it investigated, 53.7% were completed with a finding of “No
Cause” while 22.3% were conciliated. U.S.
DEP’T HOUS. & URBAN DEV., STATE
OF
FAIR HOUSING: ANNUAL REPORT TO CONGRESS 58 tbl.1.3 (2021),
https://perma.cc/23Y8-JWXW (PDF) [hereinafter 2021 HUD
ANNUAL REPORT].
200. See 42 U.S.C. § 3613(a) (allowing the filing of civil actions regardless
of whether the administrative process was exhausted beforehand).
201. See Christine Abramowitz, When is Claim Under Fair Housing Act
(42 U.S.C.A. 3601 et seq.) Ripe for Adjudication, 3 A.L.R. Fed. 3d 2 (2022)
(discussing ripeness of reasonable accommodation claims).
202. See 42 U.S.C. § 3613(a)(1)(A) (imposing a two-year statute of
limitations for reasonable accommodation claims); see, e.g., Fedynich v.
Boulder Hous. Partners, No. 3:20cv165, 2020 U.S. Dist. LEXIS 164368, at *2–
3
(E.D. Va. Sept. 8, 2020) (raising claims under the FHA, ADA, and
Rehabilitation Act).
ADDRESSING MENTAL DISABILITY HEAD ON 395
accommodation.
203
If the plaintiff is able to show all four
requirements are met, then the court is entitled to “broad and
flexible equitable powers to fashion a remedy,”
204
including but
not limited to awarding actual and punitive damages, issuing a
temporary or permanent injunction,
205
issuing a temporary
restraining order, or issuing an order requiring affirmative
action by the housing provider be taken.
206
The plaintiff may
also be awarded reasonable attorney’s fees and costs,
207
as well
as compensatory damages for emotional distress and
humiliation.
208
Particularly if the housing provider was already
ordered to pay penalties under an administrative law judgment,
the potential monetary costs that a housing provider could be
ordered to pay under a civil action can be quite costly.
209
B. Significance of Reasonable Accommodations
While not everyone will need to make or grant a reasonable
accommodation request in their lifetime, nearly everyone is a
renter at some point in their life, whether by choice or by
203. Fedynich, 2020 U.S. Dist. LEXIS 164368, at *23 (E.D. Va. Sept. 8,
2020); Dubois v. Ass’n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175,
1179 (9th Cir. 2006).
204. 3B M.J. Civil Rights § 7.
205. But see Saunders v. Gen. Servs. Corp., 659 F. Supp. 1042, 1060 (E.D.
Va. 1987) (limiting the court’s discretion to grant injunctive relief to only those
circumstances where there “exists some cognizable danger of recurrent
violation” (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953))).
206. See 42 U.S.C. § 3613(c)(1) (listing the various forms of relief a plaintiff
may be awarded should the court find that a discriminatory housing practice
has occurred).
207. See id. § 3613(c)(2) (permitting the court to award the prevailing
party, other than the United States, reasonable attorney’s fees and costs).
208. See, e.g., Saunders, 659 F. Supp. at 1061 (indicating compensatory
damages for emotional distress and humiliation are compensable under the
FHA); Smith v. Anchor Building Corp., 536 F.2d 231, 236 (8th Cir. 1976)
(“[A]ctual damages may be awarded for emotional distress and humiliation.”);
Sec’y HUD v. Collier, No. 18-15079, 2019 U.S. App. LEXIS 2102, at *15 (11th
Cir. Jan. 22, 2019) (“Under the Fair Housing Act, an aggrieved party may
recover damages for emotional distress as a consequence of a respondent’s
discriminatory acts.”).
209. See, e.g., Parris v. Pappas, 844 F. Supp. 2d 271, 279 (D. Conn. 2012)
(awarding plaintiff $100,000 in compensatory damages); Sanzaro v. Ardiente
Homeowners Ass’n, 364 F. Supp. 3d 1158, 1183 (D. Nev. 2019) (awarding
plaintiff $350,000 in compensatory damages and $285,000 in punitive
damages, as well as attorneys’ fees and costs).
396 81 WASH. & LEE L. REV. ONLINE 359 (2024)
necessity.
210
Renting offers distinct advantages compared to
home ownership, and younger and younger generations are
increasingly seizing on the opportunity to buy rental investment
properties either to live in or use as an income generator.
211
It is
also estimated that approximately 29% of the U.S. population
lives in private communities governed by condominium,
cooperative, or housing associations.
212
Thus, it is highly likely
that most everyone will encounter fair housing law or housing
providers at some point in their lifetime, regardless of their
choice to rent or buy.
In the most recent data set, HUD complaints alleging
disability discrimination comprised the largest category of
complaints of any protected class under fair housing law.
213
Of
the 8,403 total complaints filed in 2021, 41.5% of those
complaints concerned a failure to make a reasonable
accommodation.
214
Incidents alleging housing providers failed to
reasonably accommodate, therefore, constituted the second most
numerous category of complaint alleged in 2021, second only to
complaints alleging discriminatory terms, conditions, privileges,
or services and facilities.
215
Although there has not been a
drastic rise in the number of HUD complaints alleging
discrimination on the basis of a disability, the numbers have
210. JOINT CTR. FOR HOUS. STUDS. HARVARD UNIV., AMERICA’S RENTAL
HOUSING–RENTER DEMOGRAPHICS 13 (2011).
211. See Shane Phillips, Renting is Terrible. Owning is Worse., A
TLANTIC
(Mar. 11, 2021), https://perma.cc/BQZ3-EWPV (“Renting carries certain
intrinsic advantages over ownership, for individuals as well as society.”);
Melissa Dittmann Tracey, Young Buyers Focus on Investment Properties to
Build Wealth, R
EALTOR MAG. (Oct. 27, 2022), https://perma.cc/G4VD-MDCP
(discussing the rise in rental investment properties as a popular choice for
generating income amongst individuals under the age 40).
212. F
OUND. FOR CMTY. ASS’N RSCH., 2021–22 U.S. NATIONAL AND STATE
STATISTICAL REVIEW 3 (2022).
213. See 2021 HUD
ANNUAL REPORT, supra note 199 55, tbl.1.0 (“Disability
continues to be the top basis of alleged discrimination under the Fair Housing
Act, with 4,791 complaints filed in FY 2021.”).
214. See id. at 57, tbl.1.2 (indicating the total number of complaints filed
in FY 2021 and the percentage that alleged a failure to make a reasonable
accommodation).
215. See id. (identifying the categories with the most complaints filed in
FY 2021).
ADDRESSING MENTAL DISABILITY HEAD ON 397
unfortunately not declined either, remaining consistently
steady throughout the years.
216
Administrative findings of housing discrimination not only
remain commonplace, but they also continue to remain costly
mistakes for housing providers. Over $8 million in monetary
relief was awarded to complainants subjected to housing
discrimination in 2020, and over $7 million was further awarded
in 2021.
217
The individual payouts required of housing providers
once they enter into a conciliation agreement or are found to
have discriminated are not small either.
218
For instance, in September 2022, HUD announced that it
had entered into a Voluntary Compliance
Agreement/Conciliation Agreement with the Housing Authority
of Dallas, Texas (“DHA”) after a tenant filed a complaint
alleging she had been discriminated against on the basis of her
disability when DHA failed to grant her request for reasonable
accommodation.
219
The tenant, who had been involved in a car
accident that left her with a mobility disability, was no longer
able to access her second-floor apartment; thus, she requested
an accommodation to be moved to a first-floor apartment.
220
DHA , however, denied the request and instead moved to evict
216. See id. at 56, tbl.1.1 (highlighting the consistent five-year trend in the
number of complaints filed that allege disability discrimination).
217. Compare U.S.
DEP’T HOUS. & URBAN DEV., STATE OF FAIR HOUSING:
ANNUAL REPORT TO CONGRESS 12 (2020), https://perma.cc/V8QF-URXQ (PDF)
(indicating $8.08 million in monetary relief was awarded in housing
discrimination cases in FY 2020), with 2021 HUD ANNUAL REPORT, supra note
199, at 27 (indicating $7.18 million in monetary relief was awarded in housing
discrimination cases in FY 2021).
218. See, e.g., HUD Enters Agreement with Atlanta Housing Authority to
Resolve Compliance Review Findings of Disability Discrimination, U.S.
DEP’T
HOUS. & URBAN DEV. (Nov. 22, 2022), https://perma.cc/QRA2-B2E7 (reporting
on the $2 million in damages the Atlanta Housing Authority must pay to
victims of its alleged disability discrimination).
219. See 2021 HUD
ANNUAL REPORT, supra note 199, at 30–31
(summarizing the investigation and ultimate findings in the DHA case).
220. See id. at 30 (“HUD’s investigation found that the DHA failed to
transfer a tenant with a mobility disability to a ground-floor unit, forcing her
to leave her wheelchair and crawl up or down the stairs to access or leave her
housing.”); Leah Walters, Dallas Housing Authority Must Pay $500K in
Discrimination Settlement, HUD Says, D
ALLAS MORNING NEWS (Sept. 19,
2022), https://perma.cc/GCR8-NML5 (discussing the events that led to the
tenant’s mobility disability).
398 81 WASH. & LEE L. REV. ONLINE 359 (2024)
the tenant.
221
HUD’s Letters of Finding, unsurprisingly, found
that DHA discriminated against the tenant not only in violation
of the FHA but also Title II of the ADA and Section 504 of the
Rehabilitation Act.
222
Such an egregious violation of fair housing
law ended up costing DHA $500,000,
223
not including the
associated legal fees and reputational costs that DHA likely
faced and will continue to face in the wake of such a finding.
224
Shockingly, the DHA was not the only Dallas housing provider
found to have committed disability discrimination that same
year.
225
Monetary costs should not be the only incentive, however,
for housing providers to avoid discriminating against persons
with disabilities. It should also be of paramount importance to
housing providers the sorts of devastating consequences that
such discrimination has for persons living with a disability.
Reasonable accommodations undoubtedly serve important
personal and societal functions for those living with a
disability.
226
The freedom and the power of being able to make a
request for an accommodation is an essential civil right that
allows individuals with disabilities the ability to live and remain
in their homes comfortably as well as receive equal protection of
the law.
227
Many individuals with disabilities experience
financial obstacles when it comes to finding affordable housing
221. 2021 HUD ANNUAL REPORT, supra note 199, at 30.
222. HUD Announces Settlement Agreement Requiring Dallas Housing
Authority to Pay $500,000 to Victim of Housing Discrimination, U.S. DEP’T
HOUS. & URBAN DEV. (Sept. 9, 2022), https://perma.cc/7YAT-KDM8.
223. 2021 HUD
ANNUAL REPORT, supra note 199, at 31.
224. See, e.g., Walters, supra note 220 (reporting on the consequences faced
by DHA).
225. See HUD Charges Dallas-Area Housing Providers for Failure to
Accommodate Individuals with Disabilities, U.S.
DEP’T HOUS. & URBAN DEV.
(Oct. 4, 2022), https://perma.cc/PXF8-9MPP (reporting that HUD charged
several owners and operators of single-family rental homes with
discriminating against tenants with disabilities).
226. See Christina Kubiak, Everyone Deserves a Decent Place to Live: Why
the Disabled are Systematically Denied Fair Housing Despite Federal
Legislation, 5 R
UTGERS J.L. & PUB. POL’Y 561, 569–70 (2008) (discussing the
importance of reasonable accommodations).
227. See id. (emphasizing the value of reasonable accommodations in
helping persons with disabilities forgo significant moving costs).
ADDRESSING MENTAL DISABILITY HEAD ON 399
that suits their disability-related needs.
228
Homelessness
continues to be a significant problem for Americans living with
a disability, especially those persons who live with severe and
persistent mental illness, and it remains a large societal
problem that communities across the country continue to
grapple with on a daily basis.
229
The majority of persons age
eighteen and older with severe and persistent mental illness
struggle to afford decent housing as they rely significantly on
Social Security Insurance or Social Security Disability
Insurance payments to pay for their housing.
230
Those
payments, however, usually amount to little more than
poverty-level income.
231
The critical implication of this is that it is imperative for
housing providers to bear in mind that persons with mental
illness quite often do not have many options for housing; thus,
it is very likely that said person’s current housing is very much
the only option that person has available to them before
resorting to homelessness.
232
The consequences of denying a
reasonable accommodation request extend much farther than
the mere imposition such a denial will have on the day-to-day
life of that person. Denying a reasonable accommodation
request may very well send that person into homelessness,
potentially permanently.
IV. L
OOKING FORWARD: POTENTIAL REFORMS AND SOLUTIONS
The essential question in balancing the legal rights and
needs of housing providers and persons living with a mental
228. See Jaboa Lake et al., Recognizing and Addressing Housing Insecurity
for Disabled Renters, C
TR. FOR AM. PROGRESS (May 27, 2021),
https://perma.cc/LZ4G-UJU6 (highlighting the prevalence of housing
insecurity for individuals with disabilities).
229. See id. (noting that nearly 25% of persons experiencing homelessness
on any given night in the United States have a disability).
230. Sandra Newman & Howard Goldman, Putting Housing First, Making
Housing Last: Housing Policy for Persons With Severe Mental Illness, 165 A
M.
J. PSYCHIATRY 1242, 1243 (2008).
231. Id.
232. See Heidi Schultheis, Lack of Housing and Mental Health Disabilities
Exacerbate One Another, C
TR. FOR AM. PROGRESS (Nov. 20, 2018),
https://perma.cc/J3YR-TBQ8 (discussing how a mental health disability limits
the number of housing options an individual can find and obtain).
400 81 WASH. & LEE L. REV. ONLINE 359 (2024)
disability is: what can be done proactively to prevent housing
providers from discriminating against persons they provide
housing to and who live with a mental disability, especially
when said person makes a request for reasonable
accommodation? Although resolving this issue overnight is
undoubtedly unrealistic, housing providers can and should do
more to prevent disability discrimination, particularly when it
comes to implementing better practices and policies that help
minimize the chance of violating fair housing laws. Improving
the way housing providers approach reasonable accommodation
requests will not only help insulate housing providers from fair
housing violations, but it will also help ensure fewer and fewer
individuals with disabilities are left without the equal
opportunity to use and enjoy their own home.
A. Incorporating Mental Health and Disability Experts into
the Determination
Many housing providers, as of now, likely do not employ or
involve experts in mental health or disability in their ordinary
business operations, let alone in the processing of reasonable
accommodation requests.
233
Yet, the addition of such experts
could very well be a vital gamechanger for both the housing
provider and its residents.
234
Determining whether a reasonable
accommodation must be granted or may be denied is no easy
feat; rather, it is “an extremely complex and highly fact specific
determination that perplexes even the most astute legal and
medical minds.”
235
Having to make a determination about a
reasonable accommodation request on one’s own is difficult, but
having to make such a determination on one’s own and with
little to no experience with mental health or disability is a
disaster waiting to happen. Thus, it could be extremely
beneficial for housing providers to incorporate someone with
experience or expertise in the area of mental health and
233. See, e.g., CORIANNE PAYTON SCALLY ET AL., URB. INST., IMPROVING
EXPERIENCES FOR RESIDENTS WITH DISABILITIES IN FEDERALLY ASSISTED FAMILY
HOUSING 12 (2022), https://perma.cc/LQ4Z-KK3K (PDF) (noting “housing and
services systems function independently” as two fragmented systems).
234. See id. (opining that the integration of housing and support services,
like mental health experts, would better serve residents with disabilities and
ensure they remain stable).
235. Burnett, supra note 60, at 454.
ADDRESSING MENTAL DISABILITY HEAD ON 401
disability to help ease the pressure off making those sorts of
determinations.
Determining what that incorporation looks like will
undoubtedly vary with the sophistication and size of the housing
provider. Many smaller-scale or federally assisted housing
providers are limited in their funding, making it difficult to
incorporate or involve mental health experts on each and every
accommodation request received.
236
Larger-scale housing
providers, who are more likely to have the financial freedom to
make such allowances, may be able to hire mental health or
disability experts as full-time or part-time employees. Smaller
housing providers, in contrast, may only be able to retain the
occasional services of a mental health expert as needed.
Housing providers and their property managers should also
make a concerted effort to build working relationships with case
managers who help oversee and monitor persons with a mental
disability, ensuring they are safe and receiving appropriate
medical attention as needed.
237
Fostering strong relationships
between case managers and housing providers, subject to
healthy privacy limitations of course, can help ensure that all
parties are informed of how best to care for and manage the
acute needs of those with a mental disability.
238
Management
should have a plan in place, ideally developed with the help of a
case manager, for how to manage a resident’s needs before he or
she ever requires the need of an accommodation.
239
Such
236. See SCALLY ET AL., supra note 233, at 5 (“Funding for service
coordination and case management within federally assisted housing . . . is
thin . . . .”).
237. See N
AT’L APARTMENT ASS’N, ADDRESSING RESIDENTS WITH MENTAL
HEALTH CONCERNS 3 (2020), https://perma.cc/D5WJ-LZAG (PDF) (“A case
manager who can act as a go-between can be very helpful—and help build
trust—for both the resident and property manager.”); see also Case
Management, H
ORIZON BEHAV. HEALTH, https://perma.cc/WG3K-NAFR (last
visited Mar. 20, 2024) (discussing the role and duties of a mental health case
manager).
238. See A
DDRESSING RESIDENTS WITH MENTAL HEALTH CONCERNS, supra
note 237, at 2, 3 (discussing why it is important for housing providers to work
in conjunction with case managers).
239. See id. at 2 (“Before a resident experiences a mental health crisis, or
exhibits signs that indicate a crisis is imminent, management should have a
plan in place, ideally developed with help from a case manager or a mental
health skill builder.”).
402 81 WASH. & LEE L. REV. ONLINE 359 (2024)
proactivity on the front end could significantly help avoid the
potential risk of discrimination later on.
240
B. Updating Fair Housing Training to Include Behavioral
Health Training
Another important aspect in reducing the potential for
disability discrimination in housing is ensuring that persons
working in property management have proper fair housing
training. Finding fair housing training is not a problem for
individuals interested in learning about fair housing law; many
different organizations and groups offer fair housing training
across the country, both virtually and in-person.
241
The issue,
however, lies in the fact that neither federal law nor Virginia
law currently require fair housing training for housing
providers.
242
At best, Virginia law currently entitles the Virginia
Fair Housing Board with the “power and duty to establish, by
regulation, an education-based certification or registration
program for persons subject to the Fair Housing Law who are
involved in the business or activity of selling or renting
dwellings,” but such has yet to be done.
243
Making fair housing
training a requirement, whether by statute or regulation, would
significantly help ensure that housing providers at all
levels— whether corporate or individual—are well-versed in the
fair housing issues they could potentially face.
244
Such training
would be no different than the mandatory CPR training and
240. Id.
241. See, e.g., Fair Housing Training Classes and Events Schedule, V
A.
DEP’T PRO. & OCCUPATIONAL REGULATION, https://perma.cc/PV94-4LTA (listing
upcoming fair housing trainings offered by the Virginia Fair Housing Office);
National Fair Housing Training Academy (NFHTA), HUD EXCH.,
https://perma.cc/4K45-FP7K (last visited Mar. 20, 2024) (providing
information about fair housing training courses and resources).
242. See Training FAQ, F
AIR HOUS. INST., https://perma.cc/QDX3-DS7M
(last visited Mar. 20, 2024) (“There are currently no federal requirements for
fair housing training.”). But see Fair Housing Training Classes and Events
Schedule, supra note 241 (encouraging “anyone who sells, leases, owns, or
manages the [sic] residential property” to take fair housing training with the
Virginia Fair Housing Office).
243. V
A. CODE ANN. § 54.1-2344(D) (2022).
244. See Training FAQ, supra note 242 (agreeing that it would be more if
fair housing training was legally required).
ADDRESSING MENTAL DISABILITY HEAD ON 403
certification requirement Virginia law requires of staff working
at child daycare centers, for example.
245
In addition to having required fair housing training in
Virginia, increasing the comprehensiveness of fair housing
training to include a particular focus on behavioral health and
disability is important too. One in five U.S. adults experience
mental illness each year, and one in twenty experience serious
mental illness each year;
246
thus, it is highly likely that housing
providers will encounter tenants who have mental health needs
that require the help of an accommodation. Ideally, staff at all
levels should be aware of the common types of mental health
conditions and the community resources available to help
persons with a mental disability.
247
Local mental health and
social service agencies often offer trainings or workshops to help
educate members of the public about mental disability and the
proper ways to care for community members who live with one
or more mental health conditions.
248
The National Alliance on
Mental Illness (“NAMI”), for example, provides a substantial
amount of information and resources that can be useful for
housing providers and their staff.
249
Requiring housing
providers keep abreast of developments in fair housing law and
mental health would greatly help to ensure housing providers of
all sizes and varieties are well educated on these vitally
important areas of concern.
C
ONCLUSION
One would be remiss to believe fair housing law regarding
reasonable accommodation requests is anything but difficult.
Add on to those challenges the uniqueness and sensitivity of
245. See 8 VA. ADMIN. CODE § 20-780-530 (2023) (requiring at least one
staff member be trained and certified in CPR at child day centers).
246. Mental Health by the Numbers, N
AT’L ALL. ON MENTAL ILLNESS,
https://perma.cc/D2EY-SGDJ (last visited May 5, 2024).
247. See ADDRESSING RESIDENTS WITH MENTAL HEALTH CONCERNS, supra
note 237, at 3 (“Ensure that staff are up to speed on diagnoses and resources
available through various specialized training options from your local network
of mental health and social service agencies.”).
248. Id.
249. See, e.g., Mental Health Education, N
AT’L ALL. ON MENTAL ILLNESS,
https://perma.cc/7XRS-3XKV (offering education classes, presentations, and
other resources related to outreach, advocacy, and wellness).
404 81 WASH. & LEE L. REV. ONLINE 359 (2024)
mental health disabilities, and it is no wonder why housing
providers continue to make mistakes. Understanding the best
ways to navigate the legal challenges surrounding reasonable
accommodation requests will continue to be a critical component
of housing providers’ business operations, as well as a critical
lifeline for those seeking an accommodation. Virginia housing
providers have the similarities of the FHA and VFHL working
to their advantage, but they should also make efforts to invest
in quality education and training that will allow them the
assurance they need to know that they are not discriminating
by violating fair housing laws. The resources are out there, and
it is time that housing providers take note.
