Understanding and Contrasting the ADA and FHA
Originally published in Quorum Magazine, November 2013.
No one who becomes a board member for their community association does so with the idea that they want to discriminate against their neighbors. Yet, more and more boards are facing discrimination accusations under the Fair Housing Act and Americans with Disabilities Act. It is critical, therefore, for board members - and the managers and lawyers who assist them – to understand the civil rights laws that apply to them and how these laws can affect the day to day operation of the community association.
The federal government adopted two civil rights acts that can affect community associations. The first is the Fair Housing Act (“FHA”), which was adopted in 1968 and which prohibits discrimination in the operation, leasing or sale of multi-unit housing, including community associations. The second is the Americans With Disabilities Act (“ADA”), which Congress enacted in 1990 and which prohibits discrimination against the disabled in places of public accommodation.
What is the FHA? What is the ADA?
Initially, it is important to understand that the FHA and ADA are civil rights acts, enacted to provide certain protected classes with equal access to use housing and places of public accommodation. Because of the strong public policy concerns underlying the adoption of both Acts, both should be and are liberally interpreted to provide protection for the classes of individuals they cover.
The purpose of the FHA is to provide certain classes of people with equal access to housing and to the facilities and services associated with housing. The protected classes include race, color, religion, sex, national origin, familial status and disability. Many of the provisions of the FHA regarding renting, selling and advertising housing do not typically apply to community associations. Discrimination claims against community associations under the FHA are most often made under the following provisions:
- 42 U.S.C. § 3604(f)(3)(A) – which requires a community association to allow reasonable modifications to common elements, common area, units and/or lots to accommodate a disabled person;
- 42 U.S.C. § 3604(f)(3)(B) – which requires a community association to make a reasonable accommodation in its rules, policies, practices, or services to allow a disabled person equal opportunity to use and enjoy their home; and
- 42 U.S.C. § 3604(f)(2) – which prohibits a community association from discriminating against any of the protected classes in the provision of services or the use of its facilities.
Because of these FHA requirements, a community association must be careful that the rules and regulations it adopts apply equally to all residents and that it cautiously analyzes requests for reasonable modifications and reasonable accommodation so as to avoid any claim of discrimination.
The ADA has less potential to impact the operation of a community association because it prohibits discrimination against disabled individuals in the use and enjoyment of places of public accommodation. 42 U.S.C. §12182(a.) Places of public accommodation are required to maintain certain accessibility features to allow disabled persons an equal opportunity to access and use the public accommodation.
Private community associations who facilities are only open to owners and residents do not qualify as places of public accommodation and are not subject to the ADA's requirements. The exception to this rule is if a community association opens up its facilities to the public, such as when a community association's pool is used for a swim meet with a team from another community. If a community association does engage in activities that make it a place of public accommodation, then it is subject to the requirements of the ADA for that portion of the property and may be required to install accessibility features.
What are the primary differences between the FHA and ADA?
The FHA and ADA are both intended to prevent discrimination, but there exist significant differences between the two that impact how they affect community associations.
- Private v. Public – The FHA governs private communities and, therefore, affects the operation of all community associations. The ADA applies only to places of public accommodation and, thus, unless a community association takes specific action to open itself to the public, the ADA does not apply to community associations.
- Disability v. Broader Protected Class – The ADA only prohibits discrimination for disabled individuals, while the FHA prohibits discrimination based on race, color, religion, sex, national origin, familial status and disability.
- Design & Construction Requirements – The ADA creates an ongoing obligation to have certain accessibility features and to update their property whenever “readily achievable” to meet changing accessibility requirements. Practically, this means that a community association that has opened a portion of its property as a place of public accommodation must upgrade their property, as necessary, to provide the requisite accessibility features in that portion of its property. The accessibility features are identified in the ADA Accessibility Guidelines (ADAAG). The FHA requires that housing designed and constructed for first occupancy after March 13, 1991 have certain accessibility features, but unlike the ADA, does not require that the property be retrofitted with accessibility features if designed and constructed prior to March 13, 1991.
- Enforcement – The Department of Justice is involved in the enforcement of both the ADA and the FHA. Also, both the ADA and the FHA create a private cause of action that allows individuals to file suit directly against a community association for discrimination under either Act. Additionally, however, the FHA is subject to enforcement by city and county human rights commissions, state and local fair housing boards, and the Department of Housing and Urban Development (“HUD”). States and localities often adopt their own fair housing regulations, which are similar to the FHA but carry their own independent penalties and enforcement procedures. A community association must, therefore, be aware of the local, state, and federal laws so as to insure compliance with all.
- Reactive v. Proactive – The ADA is a proactive statute that requires those community associations with facilities qualifying as public accommodations to add the required accessibility features so long as they are “readily achievable.” A community association does not need to receive a request from a disabled person before it has an obligation to add the accessibility features to its areas of public accommodation. While the FHA requires community associations to allow equal access by all the protected classes to its facilities and services, it is otherwise a reactive versus proactive statute. The FHA, therefore, does not require an community association to take action unless it receives a modification or accommodation request from a resident or owner.
Common Issues for Community Associations Affected by the FHA and ADA
While significant differences exist in the application of the FHA and ADA to community associations and while the ADA has limited application to community associations, community associations face certain issues that are impacted by both the FHA and ADA.
Community associations' swimming pools give rise to a number of issues under both the ADA and FHA. Under the FHA, a community association is prohibited from discriminating against any individuals in the protected classes in the facilities and services that it provides. An association cannot, therefore, adopt any rules or regulations regarding the use of the facilities or services that disparately impact one of the protected classes. For example, a rule that prohibits children from swimming in the pool for fifteen minutes of each hour constitutes discrimination against familial status and violates the FHA.
The ADA also creates issues for community association swimming pools to the extent that the pool is a place of public accommodation, such as when the pool is used for swim meets that invite teams from outside the community. If the pool is a place of public accommodation, the community association will be obligated to install accessibility features, which would include adding a lift and/or sloped entrance to the pool to allow disabled individuals to equally access the pool.
Both the ADA and FHA impact, albeit differently, the access of animals to community associations. The FHA provides that, if requested as an accommodation for a disability, a community association must modify its rules to allow residents to keep animals. This can include trained service animals and emotional support animals that are not required to have special training. A wide variety of animals have qualified for a reasonable accommodation exception under the FHA, including dogs, cats, rabbits, and miniature horses. Potentially any animal that provides well-being, comfort or companionship necessary for a disabled person to have equal use of their housing could qualify for a reasonable accommodation under the ADA.
The ADA is far more limiting in the access it allows animals to have to public accommodations. The ADA only requires that a public accommodation modify its policies, practices or procedures to allow the use of a service animal by a disabled person. The definition of “service animal” includes only dogs that have been specially trained to provide services to a disabled person. Emotional support animals do not, therefore, qualify for access to a place of public accommodation under the ADA. The ADA recently amended their guidelines to also allow miniature horses in places of public accommodation, provided they are house broken, under the owner's control, of a type, size and weight that can be accommodated in the facility, and do not compromise the safe operation of the facility. A community association operating a pool as a place of public accommodation may, therefore, be required to allow both service dogs and service miniature horses in the pool facility.
Both the ADA and the FHA use the word “discrimination” to describe the conduct they prohibit. No one, be they board member, manager or counsel, wants to be faced with such an accusation or mired in an investigation under either Act. It is important, therefore, to be mindful of the application of each Act to the operation of a community association and to seek counsel whenever necessary and as early as possible to make certain that the association carefully considers its options and obligations under both the ADA and FHA. Doing so will avoid misunderstanding and, in some cases, expensive litigation.