Laws involving fair housing and accessibility are complex and dynamic. Depending on the type of housing, the funding source and the tenants involved, several different laws and codes may be involved. There are also several terms used to refer to a built environment that is usable by people of all abilities. Please note. The information below—as with any portion of this web site—is merely provided as a starting point; it is not a substitute for current professional legal advice. Terms and definitions are subject to change and interpretation.
Protected Class – This refers to members of populations characterized by race, national origin, sex, color, religion, familial status and disability. Under the Fair Housing Act (see above), persons are protected from discrimination based solely on their membership (or perceived membership) in one or more of these seven protected “classes.”
Reasonable Accommodation – Persons with a qualifying disability (see above) may request a reasonable accommodation from a housing provider, employer or government entity in order to participate fully in programs or events, or to occupy housing. The accommodation may involve policy modification such as a designated parking space or nonstandard communication protocol. The requested accommodation should realistically and effectively accommodate the individual’s particular disability (according to a professional third party familiar with the specific disability), and (under certain conditions) may not represent an undue financial or administrative burden.
Reasonable Modification – Persons with a qualifying disability (see above) may also request a reasonable modification from a housing provider, employer or government entity in order to participate in programs or events, or to occupy housing. A physical modification, such as a wheelchair ramp, should realistically and effectively accommodate the individual’s particular disability (according to a professional third party familiar with the specific disability), and (under certain conditions) may not represent an undue financial or administrative burden. View the HUD / Department of Justice Joint Statement on Reasonable Modification reasonable_modifications_mar08.
Request for Reasonable Accommodation and/or Modification. – Keep in mind that when you receive a request for either a reasonable accommodation or a reasonable modification, there are clear rules: As a provider, you shall not ask for information on the nature or severity of a disability. You may require independent third-party verification from a qualified professional (i.e., medical professional, case worker, vocational/rehab specialist, therapist, pastor or priest) familiar with the applicant’s condition and who will testify in writing that the tenant or client has a disability as defined by HUD, and that the requested accommodation is necessary to address the disability. Remember, it is not your responsibility to assess disability status or need; leave this to the third-party professional. You may provide (but not require) a form to be used, or accept alternate written verification. The key is whether the request is reasonable; when in doubt, seek legal advice from a qualified civil rights legal expert or HUD/FHEO. See ‘Resources and Links‘ page.
Section 3 / Economic Empowerment – This is a provision of the HUD Act of 1968 that promotes local economic development, neighborhood economic improvement, and individual self-sufficiency. The intent of Section 3 is to harness the economic power of HUD investments in housing and community development and to expand economic opportunity for low-income families in the neighborhoods where they live. Section 3 is triggered by a need for new hires to work on any covered Section 3 project or activity when the recipient receives $200,000 or more, or when a contractor receives $100,000 or more.
Section 504 (of the Rehabilitation Act of 1973) – According to HUD’s definition, Section 504 specifies that no otherwise qualified individual with a disability shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. Section 504 design and construction requirements apply to housing developments that are constructed with or receive federal funding, and are generally more rigorous than those required by the Fair Housing Accessibility design and construction standards.
Important Note. Sectrion 504 is not Fair Housing or ADA! Know the differences to avoid mistakes.
Self-Assessment – This is an opportunity for housing providers or other covered entities to identify potential violations in policies, procedures or design and construction. They may conduct an internal assessment or contract with a reliable third-party expert to evaluate compliance in policies and procedures. Many options exist to conduct a self-assessment. See ‘Resources and Links’ for sample resources and providers. Regardless of how the assessment is performed, providers or covered entities should move quickly to address any and all potential violations uncovered during this process.
Service Animals The materials below provide some clarity to the definition of ‘service animals.’ (not to be confused with animals variously referred to as ‘companion’/’emotional support’/’assistance’ animals and covered separately under the Fair Housing Act.)
FHEO-2020-01 The most recent HUD Guidance, FHEO Notice: FHEO-2020-01
was issued January 28, 2020. Subject: Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act
Pre-2020 guidance. The Department of Justice published revised final regulations implementing the Americans with Disabilities Act (ADA) for title II and title III on September 15, 2010, in the Federal Register. The 2010 revisions defined service animals as follows:
- “Beginning on March 15, 2011, only dogs* are recognized as service animals under titles II and III of the ADA.
- A service animal is a dog that is individually trained to do work or perform tasks for a person with a disability.
- Generally, title II and title III entities must permit service animals to accompany people with disabilities in all areas where members of the public are allowed to go.”
“Service animals are defined as dogs [*miniature horses are allowed under certain specific conditions enumerated below] that are individually trained to do work or perform tasks for people with disabilities. Examples of such work or tasks include guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person who is having a seizure, reminding a person with mental illness to take prescribed medications, calming a person with Post Traumatic Stress Disorder (PTSD) during an anxiety attack, or performing other duties. Service animals are working animals, not pets. The work or task a dog has been trained to provide must be directly related to the person’s disability. Dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA.
This definition does not affect or limit the broader definition of “assistance animal” under the Fair Housing Act or the broader definition of “service animal” under the Air Carrier Access Act.
Some State and local laws also define service animal more broadly than the ADA does. Information about such laws can be obtained from the State attorney general’s office.
Miniature horses. In addition to the provisions about service dogs, the Department’s revised ADA regulations have a new, separate provision about miniature horses that have been individually trained to do work or perform tasks for people with disabilities. (Miniature horses generally range in height from 24 inches to 34 inches measured to the shoulders and generally weigh between 70 and 100 pounds.) Entities covered by the ADA must modify their policies to permit miniature horses where reasonable. The regulations set out four assessment factors to assist entities in determining whether miniature horses can be accommodated in their facility. The assessment factors are (1) whether the miniature horse is housebroken; (2) whether the miniature horse is under the owner’s control; (3) whether the facility can accommodate the miniature horse’s type, size, and weight; and (4) whether the miniature horse’s presence will not compromise legitimate safety requirements necessary for safe operation of the facility.”
http://www.ada.gov/service_animals_2010.htm / www.usdoj.gov/crt/ada/animal.html Another great resource is the Psychiatric Service Dog Society.
A collection of additional resource material on service and/or assistance animals is available via the Fair Housing Council of Oregon here.
Important Note. Emotional support, therapy, assistance or companion animals are not legally defined (at the federal level) in the same way as service animals, and may not have been individually trained to perform specific tasks (see ‘assistance animal’). Under the Fair Housing Act, they are exempt from pet policies and deposits if certified by a knowledgeable expert as enabling their owner to compensate for or cope with a qualifying mental, emotional or physical disability.
Remember, whatever the terminology, if someone requests an accommodation involving any animal in any housing or shelter situation, the first response from a provider should be: “we consider all requests for reasonable accommodation.” These requests must always be evaluated and considered in light of the rights and responsibilities covered under the Fair Housing Act. Denying a legitimate request can land you in a great deal of trouble.
That being said, the broad distribution of such animals can create challenges for some providers, specifically for shelters or group homes where others with allergies, PTSD or other conditions may be impacted by the presence of animals. (Source: Delta Society; see also “Common questions about service and support animals”).
Universal Design – A commonly misunderstood term, “Universal Design” refers to general design principles intended to “simplify life for everyone by making products, communications, and the built environment more usable by as many people as possible at little or no extra cost.” Accessible residential, commercial and public space (i.e., “built environments”) fall under one aspect of universal design.
Visitability – This term differs from “accessibility” only in that it is primarily used to refer to accessible single-family construction as opposed to multifamily housing. Site grading, design and construction reflect universal design principles such as an accessible entrance into and route through the main floor, and at least one accessible bathroom and bedroom. Tenants or owners may or may not require the accessibility features at the time of first occupancy; they may simply wish to accommodate guests with mobility impairments or to anticipate their own future needs as they age in place.
Many homeowners find that these features enhance their home’s resale value, reduce tripping hazards and simplify routine activities. Related terms include “no-step construction,” “house for life” or “zero-threshold construction.” See www.concretechange.org or www.easylivinghome.org for more information.
