How to Avoid Discrimination on the Basis of Disability

By Kimberly Rau, MassLandlords, Inc.

The Fair Housing Act makes it illegal for housing providers, including landlords, to discriminate against someone based on their disability. Not all disabilities may be clearly observable or physical. Intellectual impairments and mental illnesses may also fall under this umbrella.

Which of these people have disabilities? The answer could be all of them. Not all disabilities are obvious, but all are protected under law. Lic: CC BY SA 4.0 MassLandlords Inc.

The Americans with Disabilities Act also protects the disabled from housing discrimination, and is integrated into Massachusetts law. This means that landlords who treat people with disabilities (or perceived disabilities) differently than they treat renters or applicants without disabilities can find themselves in trouble with the law.

In this article, we will briefly go over some basics about disabilities, reasonable accommodations and modifications (and how those can be requested) and how to avoid discriminating against someone based on their disability.

Not All Disabilities are Obvious

Sometimes, it is clear that someone has a disability. Someone with a white-tipped cane or a seeing eye dog does not need to be asked if they are blind or otherwise visually impaired. Someone in a wheelchair should not be asked why they need one.

However, other times, a disability may not be apparent. These so-called “invisible disabilities” are just as valid as ones that are obvious to the casual observer. They may include physical impairments that are not observable, mental illness and intellectual or cognitive impairments. All of these should be accommodated as you would a clear physical disability.

Modifications vs. Accommodations

There is a difference between a requested modification and requested accommodation. An accommodation is a change to a policy or rule that you may have in place as a landlord. For example, a renter may request a close parking space when you typically do not assign parking spaces. Or they may have a large German shepherd service dog even though your lease limits the size dog a renter can have.

A modification is a physical change to a rental unit or common area. You may be asked to create an open area below the sink where a cabinet would usually go for someone in a wheelchair. A deaf tenant may require specialized smoke alarms.

If I Can’t Ask if Someone Has a Disability, How Will I Know if They Need a Modification?

No one expects landlords to be mind-readers, but you’re not supposed to ask prying questions about someone’s disability. So how do you know if they need help?

It’s up to the tenant to request the accommodation they’re looking for. They do not have to submit it in a specific way (even if you have a preference for how requests are made), and may have someone else request it for them. They must make it clear that they are requesting a modification.

If you are not sure if your renter will truly benefit from the modification they’re asking for, you can sometimes ask for reasonable verification of their need. This should never be asked of someone with an obvious disability, and there are strict parameters surrounding what you can ask. You are not asking for specifics about the person’s medical history. You are asking for verification that the accommodation will help them.

What is a “Reasonable Accommodation” for Rental Housing Providers?

Disabled people are entitled to reasonable accommodations for their disabilities. These are changes or modifications that allow them to enjoy their living spaces the same way anyone else would. However, what that means for landlords depends a lot on what size rental operation you have. A landlord with a single double-decker rental will likely not be expected to put in an elevator. However, a landlord with thousands of units and large complexes may be compelled to install more extensive accessibility options.

Here are some common examples of reasonable accommodations or modifications a landlord may encounter.

Changes to smoke alarms or other notification systems

Smoke alarms are instrumental in saving lives in the event of a fire. Deaf or hard-of-hearing individuals may not be able to hear a smoke or fire alarm, though. Instead, they rely on alarms with strobe lights to alert them to danger. These alarms can also be connected to vibrating appliances, such as pillows or beds, that activate when an alarm goes off. This ensures the person will wake up if there is a fire.

There are also kits that can connect to a doorbell system. These set off a strobe effect when someone rings the bell.

These notification systems can also be useful for the elderly, who may find their ability to distinguish certain tones or frequencies diminishing as they age.

Grab bars

Someone who has mobility issues may not be able to safely use a bathtub or combination bathtub/shower without grab bars installed on the shower wall. These provide stability when entering, standing in or leaving the tub.

Grab bars are also useful next to toilets, as well as bathroom and kitchen sinks. They serve as a safety device for people with balance or mobility concerns.

All grab bars must be connected to wall studs to be safe and effective.

Lowered countertops and other kitchen modifications

The Americans with Disabilities Act recommends that countertops for wheelchair users have a maximum height of 36 inches. This is also the standard countertop height in typical construction, but kitchen breakfast bars or islands may be as high as 42 inches. If your tenant requests that the countertops be lowered, it could be that they are having trouble accessing them in their wheelchair.

Many kitchen sinks have a cabinet below them. This can prevent a wheelchair user from being able to use the sink. Your tenant may request the cabinet be removed so they can roll up to the counter and reach the sink.

Another request may be to have a stove installed with front controls. This allows a wheelchair user to more easily reach them.

Parking spaces and ground-floor units

Someone with mobility issues may request a parking space that is closer to their unit, even if you do not typically assign parking. This is an example of an accommodation instead of a modification. Or, a tenant with a physical disability may request they move to a ground-floor unit if one becomes available. Even if you typically do not allow unit switching mid-lease, this is something you should allow if you can.

When are housing providers exempt from providing accommodations or modifications?

A housing provider may be exempt from providing a modification if they can show that it will cause an undue hardship or fundamentally alter how their business is done.

For instance, a tenant requesting that you walk their service dog every day would be outside the expected scope of your business. At that point, before you deny the request, you should speak with your tenant and see if you can come to a compromise. You may not be able or willing to walk their dog every day. Instead, you could issue a guest parking pass to make it easier for your tenant to get a dog walker to come by the unit.

As always, we advise you to speak with your attorney before outright denying a modification or accommodation request. The word “reasonable” is one of the most highly litigated in the English language. What seems reasonable to one person may be unreasonable to another. In the end, if you wind up in court over a denial of modification, it’s going to come down to the judge’s interpretation of the situation.

On the other hand, if you do create an accessible unit, you will never have to worry about a vacancy again. Such accessible units are hard to come by, and once people move in, they’ll stay a long time. When they’re ready to leave, you’ll have a line out the door for tours.

What Constitutes Disability-based Discrimination?

Regardless of whether your tenant is legally entitled to a reasonable accommodation in your rental situation, all people are entitled to live their lives free of discrimination based on their disability. You may not need to install that elevator, but you cannot treat your renter or potential renter unfairly because they are disabled.

It is illegal to deny someone housing or refuse to deal with them because they have a disability. You cannot ask an applicant if they are disabled, or if anyone who will be occupying the unit is disabled. Remember, if your tenant or potential tenant needs an accommodation, they will ask you for it.

If your renter or applicant has an obvious disability, it is considered discriminatory to ask for documentation of the disability, or to ask about the nature or severity of their disability.

Finally, refusing reasonable accommodations that do not cause you undue hardship, or refusing to address requests for accommodations, is discriminatory.

Remember: Your tenant knows their disability better than you do.

If someone applies for an apartment, it is not up to you to decide if they are capable of living in it. You will not understand that person’s disability better than they do. You should only assess their ability to meet the same tenancy requirements (income, background, etc.) that you require everyone to meet.

A recent story from one of our landlords tells of a learning experience for both tenant applicant and housing provider. The apartment was a third-floor unit in a triple decker. Before coming to view the apartment, the applicant confirmed with the landlord that the unit was a walk-up (no elevator on site). She did not indicate that that would be an issue.

At the showing, the tenant struggled with the third set of stairs. She told the landlord she had a mobility impairment that would prevent her from renting the unit after all.

It’s not that this landlord’s stairs were steeper or more numerous than any other triple decker. But the applicant had never attempted to climb three flights of stairs before. She did fine with the first two floors, and learned that three was just too many for her.

If this happens to you, don’t complain or make a big deal about it. Chalk it up to a tour that didn’t go anywhere. So many end up that way anyway. In this scenario, the applicant probably won’t apply for any more three-floor walkups. The landlord will go on presuming that someone who applies for a walk-up will be able to manage the stairs (or will learn at the tour that they are mistaken).

Conclusion and Further Reading on Anti-discrimination Laws

We have written many articles on discrimination, and the vast majority of our advice amounts to this: if it is not relevant to the task at hand (renting a unit or addressing a tenant’s needs), don’t bring it up, comment on it or ask about it. Don’t make jokes that poke fun at protected classes. Remember, not all disabilities are obvious. Keep things on a professional level and you’re going to find it much easier to avoid a discrimination charge.

Knowing what the law requires will make your job as a landlord easier. If you haven’t already, make sure you read our articles on avoiding discrimination based on age, national origin, sexual orientation, ancestry and military status.  And for a cautionary tale every landlord should know, read about the Department of Housing and Urban Development ordering the Dallas housing authority to pay $500,000 following charges of discrimination based on disability.