John Moore, Director Regulatory Integrity Division Texas Workforce Commission Austin, Texas

1. Fair Housing in Texas John Moore, Director Regulatory Integrity Division Texas Workforce Commission Austin, Texas State Convention Galveston, Texas September 2010

2. Civil Rights DivisionTexas Workforce Commission Working with our partners and the citizens of Texas to eradicate housing and employment discrimination.

3. Purpose To provide an overview on: • Texas Commission on Human Rights Act • Texas Fair Housing ACT (TPC Chap 301) • Texas Administrative Code 40 • Pertinent Federal Laws

4. Fair Housing Topics • Texas History • Federal and local agencies and Texas Workforce Commission Civil Rights Division (TWCCRD) relationships • Federal and state housing discrimination laws and complainant procedures • Exceptions • Unlawful housing practices • Sexual harassment (housing)

5. Texas History A Chronology of Texas Events

6. HistoryTexas Events • 1983‒Texas Commission on Human Rights created • 1984‒Receives EEOC deferral agency certification • 1987‒Expanded responsibility to EEO compliance training • 1989‒Texas Fair Housing Act (TFHA) passed • 1990‒TFHA certified by HUD as substantially equivalent • 2003‒Texas Commission on Human Rights was abolished by 78th Legislative Session • 2004‒Responsibilities of Texas Commission on Human Rights were transferred to TWCCRD

7. Office Locations Federal and Local Agencies and TWCCRD Relationships

8. Federal EEOC and HUD Offices

9. Fair Housing Assistance Programs and Fair Employment Practices Agencies Local Employment and Housing Enforcement Agencies

10. Fair Housing Initiative Program (FHIP)

11. HUD and Federal Laws

12. HUD and Federal Laws • Title VIII of the Civil Rights Act of 1968, as amended • Fair Housing Act 1988 • Americans with Disabilities Act (ADA) of 1990

13. Civil Rights Act of 1968 Civil Rights Act of 1968 ‒ (Fair Housing ‒ Act 42 S.S.C. §§3601, et seq.) ‒ April 11, 1968 • Made it illegal to deny housing based upon protected basis: • Race • Color • National Origin • Sex • Religion

14. Fair Housing Amendment 1988 • 1988 Fair Housing Amendment added additional basis: • Familial status • Disability • Vested the authority and responsibility for administering the Act with the Secretary of HUD and: • Delegated to Assistant Secretary for Fair Housing and Equal Opportunity

15. Fair Housing Details The Fair Housing Act makes it illegal to: • Refuse to rent, sell, negotiate, or otherwise make housing unavailable based upon a protected basis • Set different terms, conditions, or privileges for sale or rental of a dwelling • Make, print, or publish discriminatory statements and/or advertisements • Falsely claim housing is unavailable • Engage in blockbusting • Deny a reasonable accommodation or reasonable modification to a person with a disability • Engage in discriminatory mortgage and insurance practices

16. Fair Housing Details Who can file a complaint? • Anyone believing a prohibited action has occurred or is about to occur based upon that individual’s membership in a protected group • An organization working to enforce fair housing laws • Anyone who has been harmed by a violation of the Act, including: • Real estate agents • Testers • Witnesses in other FHA cases, etc.

17. Fair Housing Details HUD will accept a complaint if: • Complaint is timely (one year or on going) • Complainant has standing (an aggrieved person or organization ‒ Complainant Jurisdiction) • Alleged action is prohibited by the Act (Subject Matter Jurisdiction) • Respondent owns or controls dwellings covered by the Act or is accused of committing a discriminatory housing practice (Respondent Jurisdiction)

18. Fair Housing Details HUD investigation process is designed to: • Obtain facts, statements and documents about events, transactions, policies and practices, and circumstances relating to alleged discriminatory housing practices that will enable HUD to determine whether reasonable cause exists to believe a discriminatory housing practice has occurred (preponderance of the evidence is level of proof required) • Pursue conciliation of the complaint • Remain objective throughout process

19. Fair Housing Details Additional protection for individuals with disabilities include: • Refusal or delay in permitting reasonable modifications, including modifications at the occupants expense, that allow the disabled person full enjoyment of the premises • Refusal or delay in making reasonable accommodations, including revisions or alteration of rules, policies, practices, or services when such accommodations may be necessary to afford the disabled person an equal opportunity to use and enjoy the premises

20. Fair Housing Details Complaint activity during past two years: • HUD filed complaints: • 41% based on discrimination against people with disabilities • 40% based on race • State and local agency filed complaints: • 38% based on race • 32% based on disability Start here

21. Fair Housing Details Most common alleged issues in cases filed: • Discriminatory terms, conditions, privileges, or services and facilities • Refusal to rent • Denial of a reasonable accommodation request

22. Other Federal Laws • Title VI of the Civil Rights Act of 1964 • Section 504 of the Rehabilitation Act of 1973 • Section 109 of Title I of the Housing and Community Development Act of 1974 • Title II of the Americans with Disabilities Act of 1990 • Architectural Barriers Act of 1968

23. Section 504Rehabilitation Act of 1973 Prohibits discrimination on the basis of disability for: • Programs or activities conducted by the federal government • Programs or activities that receive federal funding • Public housing authorities, states, and cities receiving federal funds • Private and nonprofit developers receiving HUD funds to build or renovate housing

24. Section 504Rehabilitation Act of 1973 Accessibility • At least 5% of dwelling units in public housing and federally funded housing constructed after July 11, 1988, must be readily accessible and usable by people with mobility impairments • At least 2% of units must be readily accessible and usable by people with hearing or visual impairments

25. Section 504Accessibility‒Example One Situation: a resident has a physical disability that necessitates the need for a wheelchair. Although the resident was assigned a disabled parking space close, there is no curb cut from the parking space to the unit and the threshold at the front door of the unit does not allow the resident entrance in and out of the unit. Reasonable modification: make the needed curb cut at the parking space and install a ramp at the entrance of the unit.

26. Section 504Accessibility‒Example Two Situation: a resident has a hearing impairment whereby they are unable to hear if someone is at the door. Reasonable modification: re-wire the unit to allow for a light to flash whenever the doorbell is pushed; thus notifying the resident that someone is at the door.

27. Housing Discrimination on Basis of Disability When first occupancy occurs prior to March 13, 1991, housing provider: • must allow a disabled resident the opportunity to make a reasonable accommodation/modification to the unit at the expense of the resident • can request that resident put property back in same condition as it was prior to the accommodation/modification • can request that changes be in accordance with local building codes • can request medical documentation to show the need for the accommodation/modification • does not have to allow the accommodation/modification exactly as requested, if there is another means of accomplishing the same thing

28. Basis of DisabilityExample Situation: a person who is visually impaired requests screen doors be installed on the front and back door of their unit to allow them to leave their doors open to get additional light. The housing provider does not wish to have one unit with screen doors while none of the other units have screen doors. Reasonable modification: housing provider offers instead to provide additional florescent or halogen lighting within the apartment. This is an alternative solution obtaining the same goal – more light.

29. Design and Construction RequirementsMulti-Family Housing After March 13, 1991 • Accessible building entrance on an accessible route • Accessible and useable public and common use areas • Useable doors • Accessible route into and through the covered unit • Light switches and environmental controls in accessible locations • Reinforced walls for grab bars • Useable kitchens and bathrooms

30. Relevant State Housing Laws • The Texas Fair Housing Act, as amended (Chapter 301, Texas Property Code) • Title 40, Texas Administrative Code

31. Fair Housing ActProhibited Actions • Refuse to rent or sell housing • Set different terms, conditions, or privileges for sale of rental of a dwelling • Provide different housing services or facilities • Falsely deny that housing is available • Make housing unavailable • Threaten, coerce, intimidate, or interfere with anyone exercising their fair housing rights • Advertise in a discriminatory manner

32. ADA Amendments Act of 2008Major Goals • Restored ADA’s broad protection as intended by Congress • Rejected the Supreme Court’s decisions in: • Sutton Trilogy that “disability” should be determined by reference to the ameliorative effects on mitigating measures • Williams v. Toyota that the ADA requires a “demanding standard” for establishing coverage and requires that an impairment “severely restrict” major life activities • Expressed congressional expectation that EEOC will revise its regulation defining “substantially limits” as “significantly restricted”

33. ADA Amendments Act of 2008 • A public entity must ensure that people with disabilities have ready access to its programs and activities when viewed as a whole. • The ADA Amendments Act of 2008: • revises the American Disabilities Act of 1991 giving a broader definition of disability that encompasses impairments that substantially limit a major life activity • makes it easier to meet the definition of “disability” • states the definition of “disability” in the ADA “shall be construed in favor of broad coverage” and “should not demand extensive analysis.”

34. Exceptions • Less than three properties • Fifty-five or senior property • Religious organizations • Subject property is out of state

35. Disability Defined Statutory Changes that Redefine Disability

36. Definition of Disability The Act defines a person with a disability as: • A person with physical or mental impairment that substantially limits a major life activity • A person regarded as having such an impairment • A person with a record of such an impairment But…meaning of the terms has changed.

37. Statutory Changes • “Substantially limited” redefined • Major life activities include “major bodily functions” • Ameliorative effects of mitigating measures (other than ordinary eyeglasses or contact lenses) cannot be considered in determining “disability” • Impairment that is episodic or in remission is a disability that is “substantially limiting” when active • “Regarded as” redefined

38. “Substantially Limited” Redefined When is an impairment a disability? • When an individual is “substantially limited” (or was in the past) in performing a major life activity as compared to most people in general population. • “Substantially limited” need not prevent, or significantly or severely restrict an individual from performing a major life activity. NPRM (Notice of Proposed Rulemaking) provides many examples of “substantially limited”

39. Statutory Changes • Major life activities expanded to include “major bodily functions.” • NPRM includes all statutory examples, plus additional ones EEOC has previously recognized or that further illustrate concept.

40. New Rule on Mitigating Measures • DO NOT take into account the “ameliorative effects” of mitigating measures in determining if individual is substantially limited. • Someone who uses a mitigating measure is “individual with a disability,” if impairment would substantially limit a major life activity without benefit of the mitigating measure. • Exception: ordinary eyeglasses and contact lenses

41. Episodic or In Remission Defined • Amendments Act Definition: an impairment that is episodic or in remission is a disability if it would be substantially limiting when active. • NPRM examples of impairments that are episodic or in remission include: • multiple sclerosis • epilepsy • bipolar disorder • cancer

42. Examples of Mitigating Measures • Medication • Medical supplies, equipment or appliances, low-vision devices, prosthetics, hearing aids and cochlear implants, mobility devices, oxygen therapy equipment and supplies • Assistive technology • Reasonable accommodations or auxiliary aids or services • Learned behavioral or adaptive neurological modifications • NPRM surgical interventions, except for those that permanently eliminate an impairment

43. Record of Disability • The Amendments Act continues the protection for an individual who may have had a physical or mental impairment that substantially limited a major life activity in the past but no longer does. • NPRM notes EEOC’s long-held position that accommodation be available for “record of” cases, if still needed.

44. “Regarded As” Defined • Employer no longer required to show that the individual was perceived to be substantially limited in a major life activity. • Applicant or employee is “regarded as” disabled if he or she is subject to an action prohibited by the ADA based on an impairment that is not transitory* and minor. *Transitory means lasting or expected to last for six months or less. • No accommodation required if only regarded as disabled.

45. “Regarded As” DefinedGeorge v. TJX Cos. In the case of George v. TJX Cos., 2009 WL 4718840 (E.D.N.Y. Dec. 9, 2009): • Plaintiff claims he was denied accommodation for, and terminated because of, fractured arm • Court finds fractured arm was “transitory and minor” because it healed within two months

46. “Regarded As” Examples • Not hired due to broken leg or sprained wrist expected to heal normally – not “regarded as” • Not hired due to carpal tunnel syndrome or Hepatitis C – regarded as • Terminated due to condition employer misperceives as heart disease – regarded as

47. Reasonable Accommodation Reasonable accommodation is a change in rules, policies, practices or services, that is feasible and practical under the circumstances and is considered reasonable if change: • Will not cause undue financial or administrative burden to the housing provider • Will not cause harm or damage to others.

48. Reasonable AccommodationExample One Situation: A disabled resident is unable to use the swimming pool because he/she is unable to unlock the gate to enter the pool area. The lock for the gate is at such a height that it is not accessible to children and thus not accessible to a person in a wheelchair. During office hours the pool is accessible from the office area however, after 5p.m. the office is closed. Reasonable accommodation: have the maintenance person who is on call after hours be available to unlock the gate for the resident when they wish to use the pool. This would be during the normal hours the pool is open.

49. Reasonable AccommodationExample Two Situation: A resident with a visual impairment is unable to read any of the day-to-day documents related to living in an apartment, i.e. notice that the apartment is to be sprayed for bugs; the water will be turned off for a period of time during the day, etc. Reasonable accommodation: have management inform the resident in person or by telephone of the upcoming interruption in the daily routine. The notification needs to be made at the same time as other residents are informed of the interruption.

50. Reasonable AccommodationExample Three Situation: A resident has a mental disability whereby he/she periodically forget to pay his/her bills. The housing provider was informed of this when the resident applied to lease the unit. The resident’s father has unofficially taken over paying the bills, however the housing provider has a policy of not accepting rental payments from a third party. Reasonable accommodation: have the policy modified whereby rental payments will be accepted from father for the resident.