Community Connections, Spring 2003
Reasonable
Accommodations for Tenant Posing a "Direct Threat" to Others
Fair Housing Information Sheet #8
From the Bazelon Center Website
http://www.bazelon.org/issues/housing/index.htm
The
Fair Housing Amendments Act of 1988 (FHAA) has an important caveat to
its general requirement that landlords provide tenants with necessary
and reasonable accommodations for their disabilities. The Act excludes
from coverage individuals with disabilities “whose tenancy would
constitute a direct threat to the health and safety of other individuals
or whose tenancy would result in substantial physical damage to the property
of others.” 42 U.S.C. § 3604(f)(9). In light of this exclusion,
landlords may refuse to grant tenants reasonable accommodations in certain
situations. This information sheet explores what constitutes a “direct
threat” for purposes of the Act, what kinds of behavior have triggered
the exclusion in the past, and finally what circumstances will require
a reasonable accommodation despite a tenant’s admittedly threatening
behavior.
What
constitutes a “direct threat?”
When evaluating whether an individual with a mental disability poses a
direct threat to other tenants, courts should not accept “[g]eneralized
assumption,” “subjective fears,” or “speculation”
as conclusive evidence of dangerous behavior. H.R. REP. NO. 711, 100th
Cong., 2d Sess. 18, 29, reprinted in 1988 U.S. CODE CONG. ADMIN. NEWS
2173. Rather, courts will require particularized proof of dangerous behavior
based on objective evidence before the protections of the FHAA will be
denied individuals with disabilities. For example, in Township of West
Orange v. Whitman, 8 F.Supp.2d 408 (D.N.J. 1998), a municipality and
homeowners brought a claim against state officials in an attempt to prevent
two group homes for individuals with mental illness from locating in residential
areas. Based on the profile of the residents that were to live in the
group homes, the plaintiffs asserted that these individuals posed a heightened
risk of danger to the community. Id. at 428. The court, however,
held that even had the plaintiffs proven the existence of a correlation
between the profile factors and heightened risk of danger, they would
have still not met the burden of proving individualized dangerousness.
Id. Thus the residents could not be excluded from the protections
of the FHAA based on this evidence alone.
posted
6/13/03
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