Fair Housing

Idaho faces unique challenges in addressing protected class discrimination in housing and related activities. Chief among these is the need for consistent, ongoing and widespread education and outreach to ensure that all housing stakeholders (providers, advocates and consumers) understand their rights and responsibilities under the Fair Housing Act, the Americans with Disabilities Act (or ADA), Section 504, and related laws. Because of Idaho's rural and decentralized nature, those engaged in fair housing education and outreach must cooperate efficiently to help reduce unintentional violations and injury, whether in larger urban areas or hundreds of smaller rural communities.

Although violations still occur, Idaho has made great progress in addressing discrimination through a combination of education and enforcement tools. Over the past several years, thousands of housing providers have attended training in fair housing and lending, accessible design and construction, and reasonable accommodation modifications.

• Fair Housing Partners and Progress in Idaho
• The Fair Housing Act
• What is Prohibited?
• How to File a Complaint
• Glossary of Terms
• Common Types of Discrimination in Idaho
• Anatomy of a Complaint
• For Persons with a Disability
• Housing Opportunities for Families
• Common questions about service and support animals
• Resources for Housing Consumers
• Resources for Housing Providers and Other Stakeholders
• Training Opportunities and Presenters
• Other Resources
• 2006 Fair Housing Calendars
• 2004 Analysis of Impediments to Fair Housing and Accessibility

Several organizations conduct education, outreach, testing and enforcement in Idaho. Beyond these advocacy oriented stakeholders, it is important to acknowledge the shared role of housing providers and local communities in a larger discussion. When all impacted stakeholders have a seat at the table and a voice, we can all respond more proactively and productively to areas of noncompliance.

Idaho Fair Housing Forum - For several years now, the Idaho Fair Housing Forum has been cooperating and collaborating to provide education and outreach opportunities throughout Idaho. These include the Fair Housing Art Competition and Calendar, conferences and Fair Housing Month events. We are currently planning a web site at fairhousingforum.org to serve as a clearinghouse for fair housing and related information of interest to all housing stakeholders. The site is planned for a January 2008 launch.

The Fair Housing Forum is not an advocacy organization, but rather a place for open and respectful discussion of issues impacting housing consumers, providers and advocates. Our goals are to welcome diverse opinions, explore areas of common interest and overcome real or perceived barriers to 'affirmatively furthering fair housing' in Idaho by pooling our collective resources and expertise. Traditional Forum members include representatives from the following organizations and communities:

• Affordable Housing Management Association (AHMA)
• Boise City/Ada County Housing Authority
• City of Boise
• City of Nampa
• City of Pocatello
• City of Idaho Falls
• Greater Idaho Fall Association of Realtors
• Idaho Department of Commerce
• Intermountain Fair Housing Council
• Idaho Housing and Finance Association
• Idaho Human Rights Commission
• Idaho Legal Aid Services
• Idaho Partners for Prosperity
• National Association of Residential Property Managers
• U.S. Department of Housing and Urban Development (Forum host)

• HUD's History of Fair Housing
• HUD's information on Section 504 of the Rehabilitation Act
• History of the Americans with Disabilities Act
• U.S. Department of Justice Fair Housing page

• Race
• Color
• National origin
• Religion
• Sex
• Familial status (families with children)
• Handicap

• Refusal to rent or sell or negotiate for housing.
• Making housing unavailable.
• Denial of a dwelling.
• Setting different terms, conditions or privileges for sale or rental of a dwelling.
• Providing different housing services or facilities.
• Falsely denying that housing is available for inspection, sale or rental.
• Denial of access to or membership in a facility or service related to the sale or rental of housing.
• Steering prospective tenants to a certain neighborhood, development or unit.
• Refusal to make a mortgage loan or provide information regarding loans.
• Imposing different terms or conditions on a loan.
• Discrimination in appraising property.
• Refusal to purchase a loan.
• Setting different terms or conditions for purchasing a loan.

The nature of 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 design and construction that is usable by people of all abilities.

Accessible - This term applies to a program, service, built environment or event that can be used by persons of all abilities. Examples would include a courthouse or restroom that can accommodate wheelchair users, a public hearing that provides assistive listening devices for the hearing impaired, or a program offering outreach materials in alternate formats. In housing, the term is generally used in reference to multifamily or senior housing complexes, homeless shelters, etc.

Adaptable - Built environments that may or may not include finished accessible features such as ramps, grab bars, etc, but that can be easily adapted or modified to accommodate a variety of tenants. Examples include buildings with extra structural blocking in bathroom walls to allow future installation of grab bars in toilet and tub areas; wider hallways, entry ways and door openings; adjustable counter or cabinet elevations, removable cabinet doors under sinks to allow wheelchair access, etc.

Americans with Disabilities Act (ADA) - This act was signed into law July 26, 1990. The ADA primarily covers access to public spaces, programs and events. The Act covers employment, state and local government, public accommodations, telecommunications and transportation. ADA laws and design requirements also apply to certain public or common areas of multifamily housing complexes.

Disability - The Fair Housing Act defines disability as "any physical or mental impairment that substantially limits one or more major life activities."

Disparate Impact - This term describes the notion that an action or policy that is applied equally to all persons and that appears neutral may have an unintended but disparate, or unequal impact on members of a protected class. In some cases, this can be interpreted as a violation of Fair Housing law. One commonly used example is a policy stating that any tenants involved in domestic disturbances or abuse will face eviction. Since 90-95% of all domestic violence victims are women, this policy may have a disparate impact based on gender, a protected class.

Fair Housing Act - Congress passed The Fair Housing Act on April 11, 1968 The original Act prohibited discrimination in all housing transactions on the basis of race, national origin, sex, color and religion. It was subsequently amended to extend protections to persons with disabilities and families with children (familial status). Fair Housing Accessibility design and construction standards apply to multifamily housing consisting of four or more units and ready for first occupancy after March 13, 1991.

LEP/LAP - Idaho's growing population includes individuals with Limited English Proficiency (LEP). Some LEP populations are refugees (pushed from their home country through war, famine or political oppression), and some are immigrants (pulled to the U.S. or Idaho by perceived opportunity or family connections). Under Title VI of the Civil Rights Act of 1964 - National Origin Discrimination Against Persons With Limited English Proficiency (LEP Guidance), it is illegal to discriminate in access to programs or services that involve use of federal funds. Organizations that receive federal funds must create, implement and follow a Language Assistance Plan (LAP) that effectively accommodates the needs of all customers. Keep in mind that 'customer service is welcome in any language.' For more information, see http://lep.gov

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.

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.

Self-Testing - This is an opportunity for housing providers or other covered entities to identify potential violations in policies, procedures or design and construction. They may contract with Fair Housing testing and enforcement grantees who can provide professional testers to evaluate compliance in policies and procedures. In Idaho, the Intermountain Fair Housing Council (IHFC) has historically performed this service; it agrees to a limited "grace period" within which it agrees not to file a complaint for any areas of non-compliance discovered during self-testing. Clients may use this period to address violations. For more information, contact IHFC at 1-800-717-0695.

Service and Support Animals - "According to the Americans with Disabilities Act (ADA, 1990), an animal may be considered a 'service animal' if it has been 'individually trained to do work or perform tasks for the benefit of a person with a disability,' such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working, as well as disabilities that may not be visible, such as deafness, epilepsy, or psychiatric conditions." www.usdoj.gov/crt/ada/animal.html

Emotional support, therapy 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. They may, however, be 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. That being said, the broad distribution of such animals creates challenges for some providers, specifically for shelters or group homes where others 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.

Common fair housing complaints reported in Idaho involve accessibility, reasonable accommodation, familial status, and national origin. It may be that these areas are the least commonly understood fair housing requirements. Design and construction requirements vary depending on the space involved and the source of development funding, and are best interpreted and implemented by experienced professionals. Reasonable accommodation or modification requests can be confusing, even for experienced housing providers. Familial status violations can easily occur when the original intent is to ensure children's safety or the rights of other tenants. National origin can involve language barriers that pose challenges for small organizations with limited resources.

Good intentions, confusion or ignorance about the requirements of the Fair Housing Act are not a defense if charges of discrimination are alleged. Anyone can accuse anyone else of an actual or perceived violation. Once a complaint is filed, HUD conducts a neutral investigation that involves interviewing all parties and witnesses and reviewing documents. The investigation may also involve interviewing other tenants or requesting additional information from the parties. The burden is essentially on the accused to defend themselves against any complaint.

While complaints may be filed directly by consumers or tenants, it is not uncommon for complaints to be filed by testing and enforcement advocates on behalf of themselves, their organizations, existing tenants or even potential/future tenants. Courts have held that if they meet certain conditions, fair housing organizations have standing to file a fair housing complaint.

'Testing' may involve two separate individuals posing as prospective tenants or clients, who make separate inquiries in person or by phone, email or other means. The two testers are distinguished by their perceived membership in one or more 'protected classes' (see glossary). In theory, they make substantially identical inquiries about housing availability, terms or policies. If the answers they receive differ in a manner perceived as discriminatory, a complaint may be filed. Other types of testing may involve a single inquiry about support animals or other policies, reasonable accommodations or modifications, etc.

Once a complaint is filed, the parties are offered an opportunity to voluntarily participate in conciliation discussions while the investigation is proceeding. Conciliation terms can include requiring the "respondent" (person or entity the complaint was filed against) to attend fair housing training, to change policies and/or procedures, or to pay compensation to the "complainant," (person or entity filing the complaint).

Each conciliation agreement is unique to the specific complaint and represents the terms agreed to by the parties and approved by HUD. For example, a complaint may involve property that was not constructed in compliance with the design and construction requirements of the Fair Housing Act. If it is not economically feasible for the property to be modified, conciliation terms may involve the respondent paying into a fund. One such fund can be accessed by persons with disabilities, who need to make modifications to make a property accessible; another fund may support education and outreach efforts.

If conciliation fails, the investigation continues and HUD determines whether the Fair Housing Act has likely been violated as alleged in the complaint. If HUD determines there is no reasonable cause to believe the Act has been violated, the case will be closed, although the complainant still has the right to file a complaint in Federal Court. If HUD finds there is reasonable cause to believe the Act has been violated the case may be charged and proceed through legal system.

While there are no guaranteed methods for avoiding complaints, the best course of action for housing providers is to educate all property, site management and maintenance professionals that may come into contact with clients, tenants, prospective/virtual tenants, testers, their agents or the general public. New hires should receive training at the earliest opportunity, and regular education should also be offered to all those who establish or implement policies and procedures. Should you receive a complaint and wind up in court, it is often useful to document a history of due diligence to comply with federal laws.

The best defense involves clear and consistent policies that spell out what is required, are understood by any and all representatives and that demand excellent customer service for anyone and everyone they might encounter. Adopt a 'zero-tolerance' policy for any acts of discrimination, and deal quickly and clearly with violators. If you have questions, seek information and training from the various sources available in Idaho and beyond. Remember, denial is not a strategy.

1. Consider all requests for reasonable modifications to the dwelling or common use areas, at the tenant's expense, if necessary for the handicapped person to use the housing. (In cases where public financing is involved, landlords or property owners may be required to pay for reasonable accommodations.)
   
   
2. Consider all requests for reasonable accommodations in rules, policies, practices or services if necessary for the handicapped person to use the housing.
   
   *Exceptions for private housing providers may include modifications that pose an "undue financial or administrative burden," or for requests from tenants that may pose a "direct threat to others." Landlords or housing providers may request third-party verification that the tenant meets the legal definition for disability, and that the requested modification is both reasonable and effective in addressing the disability in question. Landlords may not ask about the specific nature of the disability.
   
   Note. Consideration does not always result in approval. Whether a request is ultimately approved or denied is a decision that should be informed by careful deliberation and a thorough understanding of the laws and request involved. For consumers and providers alike, when in doubt, consult an expert for clarification. In some cases, an alternative accommodation may be exist that meets and respects the needs of both parties.
   
   The Accessibility Improvements Program, or AIP (administered by IHFA in cooperation with local Independent Living Centers) provides resources for qualifying households to make modifications that increase accessibility. For more information on this program, see Accessibility Improvements for the Disabled
   

• Public and common areas must be accessible to persons with disabilities
• Doors and hallways must be wide enough for wheelchairs
• All units must have:
  
  • An accessible route into and through the unit
  • Accessible light switches, electrical outlets, thermostats and other environmental controls
  • Reinforced bathroom walls to allow later installation of grab bars and
  • Kitchens and bathrooms that can be used by people in wheelchairs.

• A parent
• A person who has legal custody of the child or children or
• The designee of the parent or legal custodian, with the parent or custodian's written permission.
• Familial status protection also applies to pregnant women and anyone securing legal custody of a child under 18.

The confusion around service and support animals is widespread in the housing and social service fields, and there are many interpretations of what is allowed. Federal and state laws may differ, so it is always best to consult the education, testing and enforcement entities in your area and/or seek qualified legal counsel. Landlords or property managers must and should consider any and all reasonable accommodation requests carefully before responding.

Remember, pets are one thing, but legitimate service, support or companion* animals are another under local and federal law. (*In Idaho, ‘companion’ animals regarded as having a therapeutic purpose for someone with a qualifying disability may not be considered pets)

The Delta Society, a national organization promoting service animal training, education and use offers this detailed description of the various categories as follows:

“Service animals are legally defined (Americans With Disabilities Act, 1990) and are trained to meet the disability-related needs of their handlers who have disabilities. Federal laws protect the rights of individuals with disabilities to be accompanied by their service animals in public places. Service animals are not considered "pets."

Therapy animals are not legally defined by federal law, but some states have laws defining therapy animals. They provide people with contact to animals, but are not limited to working with people who have disabilities. They are usually the personal pets of their handlers, and work with their handlers to provide services to others. Federal laws have no provisions for people to be accompanied by therapy animals in places of public accommodation that have "no pets" policies. Therapy animals usually are not service animals.

Companion animal is not legally defined, but is accepted as another term for pet.

"Social/therapy" animals likewise have no legal definition. They often are animals that did not complete service animal or service dog training due to health, disposition, trainability, or other factors, and are made available as pets for people who have disabilities. These animals might or might not meet the definition of service animals.” (Source: Delta Society)

Fraudulent claims - While the vast majority of reasonable accommodation requests involving animals are legitimate, some abuse does occur (although that’s not a reason to deny a request). Third-party professionals asked to write letters requesting a service, support or companion animal should not take the request lightly; in the event of a legal challenge, their judgment may be open to question. Fraudulent or frivolous claims undermine the credibility of the process and ultimately insult those whom this law was designed to protect. It is in everyone’s interest to maintain the integrity of this legal right.

Multiple animals - "The Fair Housing Act does not specifically limit the number of service animals an individual with a disability may have. Requests for multiple service animals may be reviewed on a case-by-case basis. It is possible that housing providers may impose limitations if it can be demonstrated that an individual's request for reasonable accommodation exceeds what is necessary for that person to have full use and enjoyment of the premises." (Source: Delta Society)

Damage, behavior and cleanup - Lease agreements may still hold tenants liable for damages caused by such animals and/or for unreasonable impacts to fellow tenants or neighbors. Tenants may still be expected to comply with local leash, kennel ordinances and/or laws involving animal waste.

• Intermountain Fair Housing Council
     Toll-free: 1-800-717-0695
  
  
• Idaho Housing and Finance Association (information and referral only)
     Toll-free Housing Hotline: 1-877-438-4472
     TDD/TTY: 1-800-545-1833
  
  
• Idaho Human Rights Commission
     Toll Free: (888) 249-7025
     TDD/TTY: (208) 334-4751
  
  
• Idaho Legal Aid Services
  Boise (208) 345-0106 / Caldwell (208) 454-2591 /
  Coeur d'Alene (208) 667-9559 / Lewiston (208) 743-1556 /
  Idaho Falls (208) 524-3660 / Pocatello (208) 233-0079 /
  Twin Falls (208) 734-7024
  
  
• State Independent Living Center (SILC)
     208/334-3800 (V/TDD)
     Toll Free in Idaho: 1-800-487-4866
  
  
• HUD / Fair Housing and Equal Opportunity Office
     Toll-free: 1-800-877-0246
  
  
• Ada County Court Assistance Office. The Court Assistance Office is a clearinghouse for legal resources, and is located on the first floor in the Ada County Courthouse and Administration building located at 200 West Front Street in Boise. The phone number is (208) 287-6963.

IHFA, the Idaho Department of Commerce, and other stakeholder groups sponsor regular fair housing and accessible design and construction workshops for housing industry professionals. The group is collectively known as the Idaho Fair Housing Forum, and has undertaken a variety of collaborative projects that reflect the common goal of the members: to reduce costs and injury associated with unintentional violations by increasing awareness of fair housing law. For current information on upcoming training opportunities, e-mail hirc@ihfa.org or visit www.fairhousingforum.org.

The Intermountain Fair Housing Council (IFHC) offers targeted training on request for advocates, providers and consumer groups. In addition, housing providers may contract with IFHC to conduct "self-testing" of its programs or facilities. In this case, IFHC provides professional testers to evaluate compliance in policies and procedures. IHFC may agree to a "grace period" within which it holds the client harmless for any areas of non-compliance discovered during self-testing. Clients may use this period to address violations. For more information, contact IHFC at 1-800-717-0695.

Idaho Legal Aid Services also offers fair housing training for various groups through its regional offices. ILAS represents tenants and other consumers in non fee-generating cases. Along with IFHC, ILAS receives funding from HUD's Fair Housing Inititiative Partnerships (FHIP) program to provide enforcement and education. You may reach ILAS at (208) 345-0106 or visit their Web site at www.idaholegalaid.org

HUD's Seattle FHEO office periodically supports and facilitates training to various stakeholder groups in Idaho and the Northwest. For more information about HUD training and outreach opportunities, call toll-free 1-800-877-0246.

Links to other regional training partners (besides those listed above):

• Fair Housing Council of Oregon (503)223-3542 / www.fhco.org
• Northwest Fair Housing Alliance (509) 325-2665 / nwfairhouse@nwadv.com

The U.S. Access Board. A resource for accessible design and construction information. http://www.access-board.gov

The Bazelon Center. The Bazelon Center for Mental Health Law is the leading national legal advocate for people with mental disabilities. www.bazelon.org

Center for Concrete Change. Good resource for information on visitability, or accessible, zero-step design and construction for single-family housing. www.concretechange.org

The Center for Universal Design. Universal Design principles apply to everything from built environments to telephones, tools and transportation. www.design.ncsu.edu/cud/default.aspl

Fair Housing Institute. Specializing in Civil Rights law; primarily representing housing industry and providers. www.fairhouse.net

Terry L. Kitay, Attorney at Law. Specializing in Civil Rights law; primarily representing housing industry and providers (founding partner, Fair Housing Institute now in private practice). www.kitaylaw.net

National Fair Housing Advocate Online. Resource for general information on Fair Housing law and related issues. www.fairhousing.com

NOLO. Service designed to address legal issues in plain English. Fair Housing FAQ link.www.nolo.org

Rental Housing On Line. A resource primarily for housing providers and related professionals. Membership and registration required for full access. www.rhol.org

For extensive information on service animals and related resources, visit the Delta Society.

Complimentary 2007 Fair Housing Calendars