Many community associations, at one point or another, have discrimination charges filed, or threatened to be filed, against them. For the most part, such threats and charges are a direct result of the association enforcing the terms of its governing documents and compelling residents to do something they do not want to do, or prohibiting residents from doing something they want to do. Sometimes these threats and charges are valid and many other times they are not. Who can tell?
The primary federal statute that applies to associations, addressing housing discrimination is the Fair Housing Amendments Act (“FHAA”). Additionally, Colorado has a state statute (Colorado Civil Rights Act) that prohibits housing discrimination. If an association is found to have discriminated under the FHAA or the Colorado Civil Rights Act (“CCRA”), it may be ordered to pay damages to the victim (ranging anywhere from $1 to over $1million, based on the facts), attorney fees, and possible fines.
The FHAA and CCRA establish “protected classes” of people making it unlawful to treat persons differently due to their protected class. Protected classes under the FHAA include: race, color, religion, sex, handicap, familial status and national origin. The CCRA adds marital status, creed, ancestry, and sexual orientation as protected classes. The two classes that affect associations the most are the handicap and familial classes. Each one is addressed separately below.
“Handicap” is defined as a physical or mental impairment which substantially limits one or more of a person’s major life activities, a record of having such impairment, or being regarded as having such impairment. Discrimination based on handicap primarily occurs when an association refuses to give a reasonable accommodation or modification to a handicapped resident when such an accommodation is needed.
After a determination is made that a resident is in fact handicapped or disabled, an association must grant such person a “reasonable accommodation” if requested. A reasonable accommodation may be made by waiving or modifying a particular rule, policy, procedure or practice in order for a handicapped or disabled person to have equal access to and enjoyment of their housing. For example, the association should grant a blind person’s request to have a seeing-eye dog, even if the association has a rule against pets.
Keep in mind, however, although the accommodation must be reasonable, the association need not do everything possible to accommodate a handicapped or disabled person. In determining whether an accommodation is reasonable, courts will consider whether the accommodation imposes an undue financial or administrative burden on the association. Courts will also consider whether the accommodation fundamentally alters the nature of the association’s services.
Furthermore, the association is not required to approve a requested accommodation where the disability or handicap is not related to the accommodation. For example, the association need not accommodate a handicapped person’s request to pay her assessments at a later date where her inability to timely pay is based on her ex-husband’s failure to make alimony payments rather than on her handicap. On the other hand, if the handicapped person cannot pay her assessments in a timely manner because her disability check does not arrive until the 15th of each month, such accommodation may be reasonable.
An association must also allow a handicapped or disabled person, at his or her own expense, to make a “reasonable modification” necessary for the full enjoyment of the community. A “reasonable modification” is a structural, architectural or other physical change to a unit, building, or common element in order to provide a handicapped or disabled person use or equal access. Examples of reasonable modifications are wheelchair ramps, pool lifts, modifications to doors to accommodate wheel chairs, or grab bars.
Again, however, the modification must be reasonable. While a reasonable modification may require the approval of a ramp for a wheel-chair bound person, the association need not approve a plywood ramp in a community that is primarily brick and wrought iron. The association may condition approval on the installation of a brick and wrought iron ramp. However, if the expense of the brick and wrought iron ramp would cause undue hardship for the handicapped person, the association cannot reject the ramp simply because of the aesthetic impact. The association might want to consider paying the additional cost to have the ramp comply with the association’s architectural standards.
Once a resident claims to be handicapped and requests a reasonable accommodation or modification, an association may seek verification of the handicap. However, this should be done with extreme caution and with the assistance of legal counsel. Specifically, the association may inquire as to how the disability limits the resident’s major life activities, but may NOT ask or require the resident to disclose the actual disability.
It is extremely important for associations to comply with fair housing laws, as failure to do so could result in substantial penalties, damages and attorney fees. Associations should establish and follow written procedures, policies and guidelines. Should the association be faced with an accommodation or modification request, having standardized procedures in place helps ensure that the association conforms to fair housing laws. Examples of procedures/policies and forms are Non-Discrimination Policies, Reasonable Accommodation and Modification Policies, and Reasonable Accommodation and Modification Request Forms. In addition, written documentation and recordkeeping of all fair housing requests and responses is essential. Should a discrimination complaint arise, detailed records not only confirm and verify how events actually occurred, but they also establish a non-discriminatory practice by the association. Finally, consult your attorney if you are unsure whether a request for accommodation or modification is reasonable, and/or if your association is faced with a discrimination complaint.
Discrimination based on family status includes unequal treatment of children under the age of 18 who live in the community, pregnant women and families based on their size or content. For example, many associations adopt rules prohibiting children from playing on common elements. This is a typical example of a rule that is discriminatory under the FHAA. Another example of a rule that may constitute a discriminatory practice under the FHAA is one that defines the term “family” as a certain number of persons as well as certain occupancy standards.
Types of Discrimination
The law recognizes two types of discrimination: discriminatory treatment and disparate impact. Discriminatory treatment is where the victim is expressly treated differently than others in the community based on his/her protected class. The rule prohibiting children from playing on common elements is an example of discriminatory treatment because the rule expressly acknowledges that the children are being prohibited from doing something that others are not based on their status as children.
Discrimination through disparate impact occurs when a neutral rule has the effect of discriminating against a protected group. A typical example of this type of discrimination is a rule that prohibits tricycles in the community. Although the rule does not specifically single out children, it has the effect of only affecting children because adults do not usually ride tricycles. Thus, such a rule is likely to be considered discriminatory based on disparate impact.
Because associations are not always aware of what can constitute discrimination, and because the penalty for violating the FHAA can be quite costly, associations should be very careful when adopting rules and regulations, and have their legal counsel review any proposed rules prior to their adoption. Furthermore, associations should always notify their legal counsel if a discrimination complaint is received.
For more information about fair housing laws and discrimination, please contact a Altitude Community Law attorney at 303.432.9999.