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Delivering on the Promise
Table of Contents

U.S. Department of Justice
[Complete Report: HTML = 179K / PDF = 187K]
Table of Contents ~ Executive Summary
Final Report: Part I ~ Part II ~ Part III ~ Part IV ~ Appendix A

Self-Evaluation to Promote
Community Living for People with Disabilities

Report to the President
on Executive Order 13217

Final Report of the Attorney General

III. The Fair Housing Act (FHA)

1. FHA Accomplishments to Date
   1. The Department has worked diligently to improve the availability of accessible housing
   2. Combating discrimination against persons with disabilities living in group homes is another priority for the Department
   3. DOJ has entered into a Memorandum of Understanding with the Department of Treasury and the Department of Housing and Urban Development regarding low income housing tax credits
2. Barriers to the Full Implementation of Olmstead
   1. New construction requirements for multi-family housing are widely ignored
   2. Modifications or retrofits to existing housing are expensive and related legal obligations are misunderstood
   3. The FHA's accessibility provisions are limited
   4. Many public housing authorities routinely violate the law, resulting in a wide spread lack of accessible public housing
   5. Some housing providers maintain discriminatory policies
   6. Community opposition to group homes continues
3. Blueprint for Future Action
   1. The Department will continue its strong tradition of vigorous enforcement of the FHA
   2. The Department will employ all available avenues to identify opportunities to enforce the FHA
   3. The Department will work with other agencies to improve the accessibility of public housing and to ensure that tax incentives do not go to those who discriminate on the basis of disability in housing
   4. The Department will work to increase nationwide understanding of the FHA and Section 504 of the Rehabilitation Act
   5. The Department will increase its coordination efforts with HUD and other agencies

Enforcement of the Fair Housing Act's prohibitions against discrimination on the basis of disability in all types of housing transactions is a key component of ensuring that persons with disabilities are able to live in communities of their choice across the country. The Department shares authority for enforcing the FHA with the Department of Housing and Urban Development (HUD). HUD investigates, conciliates, and adjudicates administrative complaints alleging violations of the FHA. DOJ investigates and litigates claims involving a pattern or practice of discrimination in violation of the FHA in addition to filing enforcement actions arising from individual administrative complaints where HUD has found reasonable cause to believe the FHA has been violated and the complainant or respondent elects to have the matter resolved in Federal court. DOJ's enforcement of the FHA's protections for persons with disabilities has concentrated on two major areas. The first is ensuring that newly constructed multi-family housing is built in accordance with the FHA's accessibility and adaptability requirements so that it is accessible to or adaptable for use by persons with disabilities. The second is ensuring that zoning and other regulations concerning land-use are not employed to hinder the residential choices of individuals with disabilities by unnecessarily restricting communal or congregate-residential arrangements, such as group homes.

1. The Department has worked diligently to improve the availability of accessible housing.

   The Fair Housing Act defines discrimination in housing against persons with disabilities to include, among other things, a failure "to design and construct" certain new multi-family dwellings so they are accessible to or adaptable for use by persons with disabilities, and particularly individuals who use wheelchairs. The FHA's design and construction requirements apply to multi-family dwellings of four or more units built for first occupancy after March 13, 1991. All ground floor units in buildings without elevators and all units in elevator buildings must have the following features: an accessible entrance on an accessible route; accessible common and public use areas; doors sufficiently wide to accommodate wheelchairs; accessible routes into and through each dwelling; light switches, electrical outlets, and thermostats in accessible locations; reinforcements in bathroom walls to accommodate the installation of grab bars; and usable kitchens and bathrooms configured so that a person using a wheelchair can enter the space and access the appliances and fixtures within.

   In addition, Section 504 of the Rehabilitation Act of 1973 requires, among other things, that recipients of Federal funds, e.g., public housing authorities, make at least 5% of their newly constructed or substantially rehabilitated housing accessible to persons with mobility disabilities, including persons who use wheelchairs, and at least 2% accessible to persons with hearing or vision disabilities.⁵

   Without the availability of accessible, affordable housing, many persons with disabilities have no choice but to live in institutions, such as nursing homes or hospitals, rather than living in community settings. Thus, ensuring an adequate supply of both public and private housing that is accessible and affordable is a vital step toward meeting the goals of President Bush's Executive Order.

   Since October 1, 1996, the Civil Rights Division has brought 38 lawsuits against developers, builders, owners, architects, and/or site engineers to enforce the FHA's design and construction requirements for new, multi-family housing. Most of the cases have been resolved by consent decrees providing a variety of types of relief, including: retrofitting to bring inaccessible features into compliance where feasible and, where it is not, alternatives that will provide for making other housing units accessible; training on accessibility requirements for those involved in the design and construction process; a mandate that all new housing projects comply with the accessibility requirements; monetary relief for those injured by the violations; and civil penalties to deter future violations of the FHA.

   In a recent case, the United States sued a developer and an architect who failed to design and construct a large apartment complex in Greenville, North Carolina, in compliance with the accessible and adaptable-design requirements of the FHA. The violations included steps leading into the individual units, an insufficient number of curb cuts, doors too narrow to allow passage by persons using wheelchairs, bathroom walls without reinforcements to permit the installation of grab bars, and an inaccessible rental office. The lawsuit was resolved through a consent decree, which required the builder and developer to: (1) retrofit the common-use areas of the apartment complex; (2) ensure that at least one fully retrofitted one-bedroom unit and two-bedroom unit remain vacant and available at all times for viewing and rental by a prospective tenant who requests such a unit; (3) give notice to every prospective tenant of the availability of the fully accessible units; (4) pay aggrieved persons up to $5,000 each for any out-of-pocket costs incurred because of the accessibility violations; and (5) include enhanced accessibility features in a portion of the units in the next two multi-family projects that they construct. The architectural firm that designed the complex was required to: (1) pay a $5,000 civil penalty; (2) donate 100 hours of technical assistance to non-profit organizations that serve the housing needs of persons with disabilities in the Greenville community; and (3) contribute to any amount paid by the other defendants to compensate aggrieved persons.

   In another recent case, the United States sued a developer and builder for failing to design and construct five condominium developments located in Las Vegas and Mesquite, Nevada to be accessible to persons with disabilities. Design and construction violations in the common areas of the condominium developments included steps in the pathways and leading into the individual units, pathways that were too steep for individuals using wheelchairs to negotiate, inadequate curb cuts, and inadequate accessible parking spaces. Design and construction violations in individual condominium units included doors that were too narrow to accommodate wheelchairs, bathrooms that were too small to be used by individuals who use wheelchairs, and thermostats and electrical outlets in inaccessible locations. Under the terms of the consent decree that resolved the case, the defendants will spend over $1 million to make interior and exterior modifications to bring the properties into compliance with FHA requirements and establish a fund that will be used to retrofit the units of those owners who have not yet come forward to request them and pay compensatory damages to those persons who were victims of the defendants' discriminatory actions. Under the consent decree, defendants must also certify to the Department that any future construction complies with the FHA.

   The Department has also actively enforced the FHA's other nondiscrimination requirements relating to persons with disabilities, including requirements for reasonable accommodation to housing providers' rules, policies, practices, and services and reasonable physical modifications to housing. Since October 1, 1996, the Civil Rights Division has brought 25 cases to enforce the FHA's prohibitions against disability-based discrimination and its reasonable accommodation requirements. In a recent case, the United States filed a lawsuit alleging that a condominium development in New York discriminated against an owner and resident of a condominium in the complex who has multiple sclerosis and uses a wheelchair. The development required the resident to park her specially-equipped van several spaces away from her unit and directly next to a garbage dumpster, even though the parking spaces for the development were generally unassigned. As part of the consent decree resolving the litigation, the condominium development agreed to establish and clearly designate for the complainant's sole use a permanent parking space immediately adjacent to the walkway leading to her unit.

2. Combating discrimination against persons with disabilities living in group homes is another priority for the Department.

   Congregate living arrangements or "group homes" are often the primary alternative to institutionalization for many individuals with disabilities. As part of our effort to reduce the barriers to persons with disabilities living in communities, the Department has had a long-standing commitment to vigorous enforcement of the FHA's prohibition against municipalities' and other local government entities' use of zoning or land-use decisions or policies to exclude or otherwise discriminate against persons with disabilities by denying permits or zoning approval to group homes for persons with disabilities.

   The FHA makes it unlawful to (1) utilize land-use policies or actions that treat groups of persons with disabilities less favorably than groups of persons without disabilities, e.g., enacting an ordinance prohibiting housing for persons with disabilities generally or housing for persons with specific types of disabilities, such as group homes for persons with psychiatric disabilities, from locating in a particular area, while allowing other groups of unrelated individuals to live together in that area; (2) take action against or deny a permit for a home because of the disability of individuals who live or would live there, e.g., denying a building permit for a home because it was intended to provide housing for persons with mental retardation; or (3) refuse to make reasonable accommodations in land-use and zoning policies and procedures where such accommodations may be necessary to afford persons or groups of persons with disabilities an equal opportunity to use and enjoy housing, e.g., making an exception to an occupancy standard that allows only five unrelated persons to live in a home by allowing a group home for persons with disabilities to have eight unrelated persons living in a home.

   As a social service agency that provides residential programs, supportive housing and supportive services to single women who are homeless and formerly homeless, [we are] encouraged by the President's concern and commitment for people with disabilities. In FY=01, 84% of the women that [we] serve[ ] had a mental, physical or multiple disabilities. In its 15-year history, [we have] engaged in seven battles to site our residential programs and supportive housing developments in communities that presented resistance to the presence of women who are homeless and disabled. What [we] faced were the misperceptions that the women we serve are violent and would negatively impact those communities. -- E-mail testimony of Aug. 24, 2001.

   Since October 1, 1996, the Civil Rights Division has brought 10 cases to enforce the non-discrimination provisions regarding group homes for persons with disabilities. In a recent case, the United States brought suit against the City of Toledo, Ohio, alleging that the City discriminated against persons with disabilities in violation of the FHA by enacting an ordinance which sought to limit the number of group homes that could be located within a specified distance of each other. Under the settlement agreement that resolved the litigation, the City agreed to repeal the challenged ordinance and to revise its zoning regulations. In addition, the City agreed to pay $95,500 in damages and attorneys' fees to the private plaintiffs in companion lawsuits.

   There has been a significant amount of litigation concerning the ability of local governmental units to exercise control over group living arrangements, particularly for persons with disabilities. To provide guidance on these issues, the Department and HUD have issued a Joint Statement on Group Homes, Local Land-use and the FHA. This statement is available at www.usdoj.gov/crt/housing/housing_special.htm.

3. DOJ has entered into a Memorandum of Understanding with the Department of Treasury and the Department of Housing and Urban Development regarding low income housing tax credits.

   Ensuring that affordable housing developments are accessible to persons with disabilities is an important goal of the Department's fair housing enforcement program. To that end, DOJ, HUD, and the Department of the Treasury have entered into a Memorandum of Understanding (MOU) in a cooperative effort to improve compliance with the FHA, including the prohibition against discrimination on the basis of disability, for all properties that receive relief from Federal income tax in the form of low income housing tax credits. See www.usdoj.gov/crt/housing/mou.htm.

   As part of this MOU, HUD and DOJ have agreed to identify low-income housing tax credit properties for which there is: (1) a charge by the Secretary of HUD for a violation of the FHA; (2) a probable cause finding under a substantially equivalent fair housing State law or local ordinance by a substantially equivalent State or local agency; (3) a lawsuit under the FHA filed by DOJ; or (4) a settlement agreement or consent order entered into between HUD or DOJ and the owner of a low-income housing tax credit property. Under the procedures outlined in the MOU, once these properties are identified, the Internal Revenue Service (IRS) sends a notice to the property owners advising them that a finding of discrimination, including an adverse final decision by the Secretary of HUD, an adverse final decision by a substantially equivalent State or local fair housing agency, or an adverse judgment by a Federal court could result in the loss of low-income housing tax credits. For matters resolved through settlement agreements or consent decrees, the IRS similarly sends notice to property owners that a judgment enforcing the terms of a settlement agreement or consent decree could result in the loss of tax credits.

   Under the MOU, HUD and DOJ also provide FHA training upon request to designated IRS personnel and participants in the low income housing tax credit program. The IRS, in turn, provides technical assistance and training upon request to HUD and DOJ personnel on general tax administration issues under the low-income housing tax credit program. HUD and DOJ are also making training available upon request to State housing finance agencies and other entities, e.g., developers, property management companies, and syndicators, on the accessibility requirements of the FHA and Section 504 of the Rehabilitation Act.

Housing opportunities for persons with disabilities were enhanced in 1988 when the FHA was amended to prohibit discrimination on the basis of disability in the sale and rental of housing and to require the design and construction of certain new multi-family housing to be accessible to or adaptable for use by persons with disabilities. However, despite the progress that has been made in recent years, there remains a huge unmet need for affordable housing that is accessible to persons with disabilities in communities across the country.

1. New construction requirements for multi-family housing are widely ignored.

   The reasons for the lack of affordable, accessible housing are varied. First, there is widespread non-compliance with the FHA's new construction requirements for multi-family housing by both private and public providers. Much of this noncompliance may result from the lack of knowledge about the requirements on the part of builders, architects, and engineers. Because the design curricula at universities and technical schools do not usually include courses on accessible design, many professionals who design multi-family and public housing are often unfamiliar with the accessibility requirements of the FHA and Section 504 of the Rehabilitation Act. Moreover, State and local building codes typically do not incorporate Federal accessibility requirements relating to housing; therefore, State and local officials who review architectural plans and completed facilities for compliance with local building, fire, and life-safety codes typically do not review such plans or facilities for compliance with Federal accessibility requirements.

2. Modifications or retrofits to existing housing are expensive and related legal obligations are misunderstood.

   The systematic failure to build new housing in compliance with Federal accessibility requirements means that much of the work of ensuring access to housing for persons with disabilities is done in the context of modifications or retrofits to existing housing. While the incorporation of accessible or adaptable features in housing involves little, if any, cost at the design or the construction stage, retrofitting to bring non-compliant, multi-family housing and public housing into compliance with the FHA and Section 504 can be expensive and difficult. Also, many housing providers do not understand the FHA's prohibitions against discrimination on the basis of disability. These prohibitions include the obligation to provide reasonable accommodations for persons with disabilities or to allow such persons to make reasonable structural modifications to dwellings to improve accessibility. Thus, despite Federal mandates, units often remain inaccessible to persons with disabilities.

3. The FHA's accessibility provisions are limited.

   Even newly constructed, multi-family housing that complies with FHA requirements is often not fully accessible to all persons with mobility disabilities because the FHA requires only a modest level of accessibility or adaptability for persons who use wheelchairs. Also, the FHA only requires accessibility features in newly constructed, multi-family housing with four or more units; therefore, most single-family housing developments built today do not provide any options for accessible single-family homes.

4. Many public housing authorities routinely violate the law, resulting in a wide spread lack of accessible public housing.

   The concern about the lack of accessible housing is not limited to the private housing market. Many public housing authorities are not in compliance with the nondiscrimination requirements of the FHA and Section 504 of the Rehabilitation Act regarding access to public and/or Section 8 housing for persons with disabilities. Thus, many low-income persons with disabilities are denied an equal opportunity to live in public and/or Section 8 housing across the country.

5. Some housing providers maintain discriminatory policies.

   In communities where accessible housing does exist, some housing providers still have policies that exclude or place discriminatory conditions of residence on persons with disabilities, such as assisted-living facilities with policies barring residents from using scooters or electric wheelchairs or retirement communities that deny residence to persons with certain types of visible disabilities, e.g., persons who are blind, persons who are deaf, or persons who use wheelchairs.

6. Community opposition to group homes continues.

   Another barrier to fulfilling the goals of the President's Executive Order is that, in many communities across the country, there continues to be strong opposition by citizens and their elected officials to the location of group homes, assisted-living centers, and other facilities for persons with disabilities in residential settings. This community opposition often means that group homes are not built, thereby severely curtailing housing opportunities for persons with disabilities. Alternatively, such facilities are built in less desirable settings to avoid community opposition.

   Despite the implementation of the Americans with Disabilities Act (ADA) and the Fair Housing Act of 1988, persons with psychiatric disabilities are discriminated against with regards to housing. Landlords are unwilling to rent to persons with psychiatric disabilities and communities still openly oppose housing for persons with psychiatric disabilities. -- E-mail testimony of Aug. 27, 2001.

To continue to break down barriers against persons with disabilities living in communities of their choice across the country, the Department is committed to continuing and enhancing its fair housing program in this area.

1. The Department will continue its strong tradition of vigorous enforcement of the FHA.

   The Department will continue to devote substantial resources to investigations and enforcement actions against developers, builders, architects, and site engineers who design and/or construct multi-family housing that does not comply with the requirements of the FHA and rental offices and other places of public accommodation within housing complexes that do not comply with the ADA. Also, the Department will conduct investigations, initiate enforcement actions, and participate as amicus curiae in private lawsuits under the FHA with respect to discriminatory land-use and zoning decisions that prevent group homes from being operated in community settings. The Department will also investigate and take enforcement action to eliminate discriminatory housing practices that deny reasonable structural modifications to housing, disqualify persons with disabilities from living in certain types of housing, impose discriminatory conditions of residence/use on persons with disabilities, or deny reasonable accommodations that may be necessary for persons with disabilities to have an equal opportunity to enjoy and use housing.

2. The Department will employ all available avenues to identify opportunities to enforce the FHA.

   To assist in our enforcement efforts, we will encourage advocacy groups and private counsel representing persons with disabilities to alert the Department to private lawsuits where amicus curiae participation by the Department would assist the court in interpreting and applying the provisions of the FHA and Section 504 of the Rehabilitation Act. We will also use the Department's Fair Housing Testing program to identify patterns or practices of discrimination against persons with disabilities by persons and entities engaged in the sale or rental of housing.

3. The Department will work with other agencies to improve the accessibility of public housing and to ensure that tax incentives do not go to those who discriminate on the basis of disability in housing.

   In an effort to increase the amount and availability of affordable and low-income housing for persons with disabilities, the Department will continue to work with HUD to increase the accessibility of public housing by improving enforcement of the nondiscrimination requirements (including accessibility and reasonable accommodation requirements) of Section 504 of the Rehabilitation Act and the FHA against public housing authorities and other recipients of Federal funds. The Department also plans to continue working with HUD and the IRS to implement the provisions of the Memorandum of Understanding among the agencies so that housing providers that discriminate against persons with disabilities do not benefit from low income housing tax credits.

4. The Department will work to increase nationwide understanding of the FHA and Section 504 of the Rehabilitation Act.

   As a complement to the Department's enforcement program, the Department will continue to work with HUD to provide training and technical assistance on compliance with the accessibility requirements of the FHA and Section 504 of the Rehabilitation Act, as applicable, to increase architects', developers', site engineers', and public housing officials' knowledge of, and compliance with, these requirements. The Department will encourage universities offering courses of study in architecture and engineering to provide courses in accessible design. The Department will also work with private entities, such as the National Association of Home Builders, the American Institute of Architects, and other groups representing design professionals and builders to increase their members' knowledge and understanding of the accessibility requirements of the FHA and Section 504 of the Rehabilitation Act.

5. The Department will increase its coordination efforts with HUD and other agencies.

   The Department will also increase its efforts to work with other government agencies to improve compliance with the nondiscrimination provisions of the FHA and Section 504 of the Rehabilitation Act as it relates to housing. For example, the Department will continue to work with HUD on technical assistance to improve housing providers' understanding of the FHA and Section 504, as well as improve enforcement of both Acts. The Department will develop guidelines to assist HUD in identifying Section 504 accessibility cases that should be referred to the Department for enforcement action. The Department will meet with HUD on a quarterly basis to discuss Section 504 accessibility cases that meet the guidelines for referral to the Department for enforcement action. The Department will also provide training on FHA and Section 504 accessibility requirements to officials who enforce State and local building codes and will encourage State and local governments to make accessibility requirements for multi-family housing equivalent to, or greater than, the accessibility requirements of the FHA. We will also encourage State and local officials to review plans for multi-family housing and public housing for compliance with Federal accessibility requirements or, alternatively, to provide developers, builders, architects, engineers, and others involved in the design and construction of housing with literature outlining Federal accessibility requirements and notice that plans have not been reviewed for compliance with these requirements. Finally, the Department will encourage all agencies that provide or administer Federal financial assistance for housing programs to require compliance with the FHA and Section 504 as a condition of the receipt and retention of funding and to refer noncompliant programs to the Department for enforcement action.

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5. For multi-family dwellings built by recipients of Federal funds, FHA and Section 504 requirements may both apply.

Last revised: April 21, 2002