"No Handicapped People Allowed": The Need for Objective Accessibility Standards under the Fair Housing Act

By Jeter, Michael J. | Washington Law Review, March 1, 2016 | Go to article overview

"No Handicapped People Allowed": The Need for Objective Accessibility Standards under the Fair Housing Act


Jeter, Michael J., Washington Law Review


"A person using a wheelchair is just as effectively excluded from the opportunity to live in a particular dwelling by the lack of access into a unit and by too narrow doorways as by a posted sign saying 'No Handicapped People Allowed.'"1

INTRODUCTION

Under the Fair Housing Act (FHA or the Act),2 one form of prohibited disability discrimination is the failure to "design and construct" certain multifamily dwellings in a manner that is accessible to persons with disabilities.3 The FHA sets forth accessibility requirements that developers must meet4 (e.g., doors must be wide enough to allow passage for wheelchair users) but the Act does not contain objective performance standards (e.g., measurements for door width) for meeting those requirements. Congress gave the United States Department of Housing and Urban Development (HUD) regulatory authority over the Act.5 HUD recognizes ten model building codes as "safe harbors"-compliance with the safe harbors constitutes compliance with the Act.6 HUD has attempted to establish these safe harbors as a minimum objective standards for accessibility in design and construction claims.7 An increasing number of developers, however, are not adopting any safe harbor, nor are they following any comparable standard, and are building inaccessible multifamily dwellings.8 Developers argue that the FHA contains no objective standards and that HUD does not have the regulatory authority to prescribe any mandatory performance standards.9 Under this argument, the standard becomes whatever the developers' experts claim it is.10 Accessibility, in turn, becomes a matter of opinion.11

Persons with disabilities, especially wheelchair users, can face substantial architectural barriers in housing. For example, units can be completely inaccessible to wheelchair users if there are steps leading to the building's entrance or if the access ramp or slope from the parking lot is at too steep of a grade. Other examples of inaccessible features include thermostats that are out of reach, hallways and doors that are too narrow to allow a wheelchair to pass through, bathroom walls too weak to support grab-bars, and cabinets and kitchen appliances that create insufficient maneuvering space.12 The FHA prohibits such inaccessible features, but it does not specify exactly how wide a door must be or how much maneuvering space is sufficient.13 Much of design and construction litigation focuses on what exactly are the parameters of accessibility under the FHA.14

This Comment argues that under the FHA, accessibility should be determined by objective standards. The rising trend of design and construction litigation will continue unless housing developers are put on notice that the FHA's accessibility requirements mandate minimal performance standards.15 Without reference to any set of objective standards, developers will continue to argue that their subjective standards comply with the FHA's accessibility requirements.16 Subjective standards lead to an increase in inaccessible housing, which in turn generates design and construction litigation.17 Moreover, the statute of limitations for individual design and construction claims is two years after the alleged discriminatory housing practice occurs,18 which makes quickly curtailing noncompliance especially important because it may take more than two years for a prospective tenant with disabilities to encounter an inaccessible feature, let alone file a complaint.19

Section I.A of this Comment provides background on the FHA's accessibility requirements and the evolution of design and construction claims. Section I.B examines the FHA's legislative history and Congress's intent behind the amendment that set forth the accessibility requirements. Section I.C outlines HUD's regulatory actions after Congress passed the amendment. Finally, Section I.D discusses design and construction litigation, the courts' treatment of the accessibility requirements, and HUD's regulations. …

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