One of the thorniest problems housing providers face is responding properly to requests for reasonable accommodations and modifications from persons claiming a disability. That task may not be made easier by a proposal, issued by the Justice Department on January 30, 2014, that would significantly increase the scope of a “disability” under the Americans with Disabilities Act (“ADA”). 79 Fed. Reg. 4839.
The new rules implement 2008 amendments to the ADA, which in turn responded to court interpretations that narrowed the scope of a disability under the ADA and in some respects made it more difficult for a person to demonstrate that she is disabled, for purposes of that statute. The proposed rule does not significantly alter the definition of a disability, but expands rules of construction and provides additional examples of the “major life activities” that are used to identify disabilities. Together, as the Justice Department proposal explains, the focus of these changes is to shift attention to whether covered entities “have complied with their obligations and whether discrimination has occurred, not the extent to which an individual’s impairment substantially limits a major life activity.” Id. at 4845.
The ADA generally does not apply to disability-related discrimination in housing cases, which is normally governed by the Fair Housing Act (the “FHAct”) or, for properties receiving federal financial assistance (such as Section 8 payments), Section 504. But there are places where the coverage of those statutes overlaps (for example, rental offices generally are governed by the ADA). Moreover, the definitions of a disability in these statutes are similar enough that courts are mindful of ADA guidance when they interpret the disability protections provided by the FHAct and Section 504. As a result, housing providers should study Justice Department’s proposals and consider making comments, which are due by March 31, 2014.