Denial of accommodation results in liability under Fair Housing Act only if accommodation is necessary
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Women's Elevated Sober Living L.L.C. v. City of Plano, Texas, 2023 WL 8014228 (5th Cir. Nov. 20, 2023) may offer some solace to HOAs and apartment operators beset by Fair Housing Act disability discrimination claims. It involved a group home for women with substance abuse disabilities. The large (5,000+ square feet) house had 7 bedrooms (including one for the on-site manager) and, at the time of trial, 12 residents.
Because there were more residents than allowed by the city’s zoning code as a matter of right, a variance from the city’s board of adjustment was required. The plaintiff (the operator of the group home) sought a variance to permit 17 to 20 residents, but the board turned the plaintiff down, despite testimony from a city official that the house could safely accept up to 34 residents.
The plaintiff then brought this suit under the Fair Housing Act, alleging that the city had failed to permit a reasonable accommodation of the residents’ disabilities. Its expert testified that the…
minimum number of fifteen residents was required to have “an effective therapeutic result.” But he also stated that “adding more residents increases therapeutic benefit in recovery homes” and makes it “more likely [ ] to produce more therapeutic effect.” He also opined that having fifteen residents in a sober home improved the odds of its residents staying sober.
Overall, the court took his testimony to mean that more residents produced better outcomes, but that there was no “magic number” of residents below which the therapeutic benefits of the group home would not be realized.
The court held that the city was not liable under the Fair Housing Act because the denial of accommodation provision of the Act was triggered only by conduct denying an accommodation that was necessary. “Necessary” in this sense means that without the accommodation, the resident(s) “will receive no ameliorative effect from their disability, thereby depriving them of the equal opportunity to enjoy the dwelling. In other words, it isn’t enough for the residents to show that they will get some benefit from the accommodation, or to show that their benefits from the housing would be improved by the accommodation. They have to show that if they don’t receive the accommodation, they can’t benefit from the housing.
In this case, the residents (acting though their landlord) didn’t show that. They were still receiving substantial benefits in the form of rehabilitation from their alcohol and drug addictions, even though their treatment might have been more effective if there had been more residents.
This is a very strict construction of the statute, which doesn’t define “necessary.” It’s a literally correct definition; something is necessary to receive a benefit, such as housing, only if the recipient wouldn’t receive or benefit from the housing if the precursor were lost or withdrawn.
This view gives landlords and HOAs a great deal of discretion in making a person with a disability offers of alternative methods of accommodating a disability, any of which would be functional but some of which would be much preferable to others from the viewpoint of the disabled person. Putting it the other way around, the disabled person may be entitled to an accommodation that will work, but not necessarily their preferred accommodation. This is an important distinction, since those who have carried on such negotiations on behalf of landlords and HOAs can likely testify that sometimes disabled residents can be quite resistant to proposed accommodations which appear to management to be quite reasonable. Of course, when all is said and done, the proposed accommodation must be a reasonable one.
Dale A. Whitman
Professor of Law Emeritus, University of Missouri