The Fair Housing Act (FHA) (42 U.S. Code §§ 3601-3619 and 3631) bars landlords from discriminating against tenants based on the fact they have a disability. This federal law also requires landlords to make reasonable accommodations to rules and reasonable modifications to physical structures when a tenant requests them in connection with a disability.
But what, exactly, qualifies as a disability under the FHA? For example, is disability protection limited to people with mobility impairments or whose disability is obvious to an observer?
As a landlord, your job isn’t to examine tenants or question them about the nature or extent of a disability (and, in fact, you’re asking for fair housing trouble if you do so). But landlords do need to be aware of exactly whom the FHA’s disability discrimination ban protects, so you know what your responsibilities are in case an issue arises.
Disability Under the FHA
The FHA defines a disability as “a physical or mental impairment” that “substantially limits” one or more “major life activities,” which federal regulations (24 CFR § 100.201) clarify as including “functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.”
Although this definition appears to be broad, it may be more inclusive than you might expect in some ways, and less inclusive in others. Here are some important points to be aware of when it comes to what’s considered a disability under the FHA:
- A tenant’s disability doesn’t have to be obvious. A landlord doesn’t have to be able to notice or somehow witness a tenant’s disability in order for the tenant to gain the law’s protection. Similarly, there’s no requirement that a tenant use an assistive device to help with a disability, such as wheelchair, cane, or hearing aid.
- A tenant’s disability doesn’t have to be physical. As mentioned above, the FHA protects tenants who have “physical or mental impairments.” Federal regulations (24 CFR § 100.201) define this as covering “[a]ny mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.”
- An addiction counts as a disability. However, tenants who currently use illegal drugs or who have been convicted of the illegal manufacture or distribution of drugs aren’t protected under the FHA’s ban on disability discrimination.
- Any tenant who poses a threat isn’t protected. Tenants aren’t entitled to the FHA’s protection if they pose a direct threat to other tenants’ health or safety or if you believe their tenancy would lead to substantial property damage.
It’s also important to note that the FHA’s definition of disability also encompasses less common situations, such as when a tenant has a “record of” having a disability or when a tenant is “regarded as” having a disability. The first situation applies when a landlord takes action based on knowledge of a disability that a tenant used to have or was just misclassified as having (and never actually had). The second situation covers times when a landlord acts based on a mistaken belief (regardless of the reason) that a tenant has a disability.
Finally, keep in mind that the FHA also protects people who live with a tenant that has a disability, since adverse, discriminatory housing decisions against an individual affects everyone in that person’s household.
Learn More About Housing Discrimination
The Rental Applications and Tenant Screening section of Nolo.com includes several useful articles on how to legally choose tenants and avoid fair housing complaints and lawsuits. Also, check out Every Landlord’s Legal Guide, by Marcia Stewart, Ralph Warner and Janet Portman (Nolo) for detailed advice on housing discrimination and how to avoid fair housing lawsuits.