Every real estate professional should already know that the federal Fair Housing Act prohibits discrimination in housing on the basis of race, color, religion, sex, familial status, national origin and disability. What many people do not realize, though, is that the Act does not protect an individual with a disability whose tenancy would constitute a “direct threat” to the health or safety of other individuals or result in substantial physical damage to the property of others unless the threat can be eliminated or significantly reduced by reasonable accommodation.
So, how can a housing provider determine if an individual poses a “direct threat” under the Fair Housing Act?
The Fair Housing Act does not allow for exclusion of individuals based upon fear, speculation, or stereotype about a particular disability or persons with disabilities in general. A determination that an individual poses a direct threat must rely on an individualized assessment that is based on reliable objective evidence (e.g., current conduct, or a recent history of overt acts). The assessment must consider: (1) the nature, duration, and severity of the risk of injury; (2) the probability that injury will actually occur; and (3) whether there are any reasonable accommodations that will eliminate the direct threat.
Consequently, in evaluating a recent history of overt acts, a housing provider must take into account whether the individual has received intervening treatment or medication that has eliminated the direct threat (i.e., a significant risk of substantial harm). In such a situation, the housing provider may request that the individual document how the circumstances have changed so that he no longer poses a direct threat. A housing provider may also obtain satisfactory assurances that the individual will not pose a direct threat during the tenancy. The housing provider must have reliable, objective evidence that a person with a disability poses a direct threat before excluding him from housing on that basis.
Example 1: A housing provider requires all persons applying to rent an apartment to complete an application that includes information on the applicant’s current place of residence. On her application to rent an apartment, a woman notes that she currently resides in Wilson House. The manager of the apartment complex knows that Wilson House is a group home for women receiving treatment for alcoholism. Based solely on that information and his personal belief that alcoholics are likely to cause disturbances and damage property, the manager rejects the applicant.
The rejection is unlawful because it is based on a generalized stereotype related to a disability rather than an individualized assessment of any threat to other persons or the property of others based on reliable, objective evidence about the applicant’s recent past conduct. The housing provider may not treat this applicant differently than other applicants based on his subjective perceptions of the potential problems posed by her alcoholism by requiring additional documents, imposing different lease terms, or requiring a higher security deposit. However, the manager could have checked this applicant’s references to the same extent and in the same manner as he would have checked any other applicant’s references. If such a reference check revealed objective evidence showing that this applicant had posed a direct threat to persons or property in the recent past and the direct threat had not been eliminated, the manager could then have rejected the applicant based on direct threat.
Example 2: John Doe, a tenant at the Oak Street apartment complex, is arrested for threatening his neighbor while brandishing a baseball bat. The Oak Street lease agreement contains a term prohibiting tenants from threatening violence against other residents. Oak Street’s rental manager investigates the incident and learns that John Doe threatened the other resident with physical violence and had to be physically restrained by other neighbors to keep him from acting on his threat. Following Oak Street’s standard practice of strictly enforcing its “no threats” policy, the Oak Street rental manager issues John Doe a 30-day notice to quit, which is the first step in the eviction process. John Doe’s attorney contacts Oak Street’s rental manager and explains that John Doe has a psychiatric disability that causes him to be physically violent when he stops taking his prescribed medication. Suggesting that his client will not pose a direct threat to others if proper safeguards are taken, the attorney requests that the rental manager grant John Doe an exception to the “no threats” policy as a reasonable accommodation based on John Doe’s disability.
The Oak Street rental manager need only grant the reasonable accommodation if John Doe’s attorney can provide satisfactory assurance that John Doe will receive appropriate counseling and periodic medication monitoring so that he will no longer pose a direct threat during his tenancy. After consulting with John Doe, the attorney responds that John Doe is unwilling to receive counseling or submit to any type of periodic monitoring to ensure that he takes his prescribed medication. The rental manager may go forward with the eviction proceeding, since John Doe continues to pose a direct threat to the health or safety of other residents.
The two examples described above are merely hypothetical situations used to demonstrate the "direct threat" exclusion of the Fair Housing Act. Because of the potential for civil liability for violations of the Fair Housing Act, I recommend consulting with an attorney before excluding someone as a "direct threat" in order to minimize potential liability for discrimination.
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