One of the more frequently quoted cases dealing with the relationship between the FHA and poverty is Salute v. Stratford Greens Garden Apartments, 136 F.3d 293, 301 (2d Cir. 1998). In Stratford the Second Circuit wrote that the FHA “addresses the accommodation of handicaps, not the alleviation of economic disadvantages that may be correlated with having handicaps.” The 11th Circuit’s decision in Schaw v. Habitat for Humanity, 938 F.3d 1259 (11th Cir. Sept. 18, 2019) takes up the question of just where one draws the line between disability discrimination and economic discrimination. Along the way it also clarifies who gets to decide what accommodation is required and just what “necessary” means.
The facts are straightforward. Shaw wanted to buy a Habitat for Humanity house but could not meet the minimum income requirement unless Habitat considered not only his regular social security disability income but also assistance he got from his family. Habitat refused to modify its policy to permit consideration of the additional assistance unless Shaw took various steps to guarantee the additional income. Shaw declined for his own reasons, Habitat rejected his request and Shaw sued.
The Court’s first important holding concerns the burden of proof on the “reasonableness” part of reasonable accommodation. Shaw wanted Habitat to simply waive its requirement that the income requirement be met without reference to third party contributions. Habitat proposed as an alternative that Shaw create a trust or other structure to guarantee the income. The District Court thought that sounded reasonable and found Shaw’s rejection was fatal to his claim.
The 11th Circuit disagreed. It found that the plaintiff has the initial burden of showing his or her requested accommodation “seems reasonable on its face.” It describes this as a “low bar” to meet. If that burden is met the defendant has the burden of explaining why the requested accommodation is unreasonable because of undue financial or administrative burdens. Only after the defendant meets that burden must the court balance the plaintiff’s need against the defendant’s burden to decide whether some alternative accommodation offered by the defendant is reasonable. Based on this burden shifting model the Court found the district court erred by requiring Shaw to prove the defendant’s suggested accommodation was unreasonable before the defendant had established that Shaw’s proposed accommodation created an undue burden.
The Court’s holding on alternative accommodations is consistent with HUD’s position on reasonable accommodation: “an individual is not obligated to accept an alternative accommodation suggested by the provider if she believes it will not meet her needs and her preferred accommodation is reasonable.” Joint Statement on Reasonable Accommodation dated May 17, 2004. There is contrary authority, including some from the 11th Circuit. See e.g., Logan v. Matveevskii, 57 F. Supp. 3d 234, 256 (S.D.N.Y. 2014): “Although a public entity must make ‘reasonable accommodations,’ it does not have to provide a disabled individual with every accommodation he requests or the accommodation of his choice.” Logan rests its holding on a 2nd Circuit case dealing with employment. The 11th Circuit has said the same thing in an ADA employment case, Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir. 1997): “Stated plainly, under the ADA a qualified individual with a disability is “not entitled to the accommodation of her choice, but only to a reasonable accommodation.” The Shaw decision does not distinguish Stewart, but does distinguish another holding in an employment case, Walden v. Centers for Disease Control & Prevention, 669 F.3d 1277, 1294 (11th Cir. 2012). In the 11th Circuit, at least, non-FHA reasonable accommodation cases are not considered authoritative in an FHA context. For FHA cases, the reasonableness of a suggested alternative accommodation is irrelevant unless the defendant shows the requested accommodation imposes an undue burden.
The Court then moved to the most interesting part of its discussion, which concerns the “necessity” prong of a reasonable accommodation claim. The district court found that Shaw did not meet the FHA’s need requirement because the cause of his difficulty was financial; he simply did not qualify as a purchaser of the house Habitat for Humanity had for sale. Because his problem was financial the district court found there was no disability related need for the accommodation. It relied in part on the 2nd Circuit’s statement quoted above, finding that the correlation between Shaw’s poverty and his disability did not mean the necessity for an accommodation arose from his disability.
The 11th Circuit found this distinction between economic and disability related needs “too simplistic.” It recognized that necessity must originate in a person’s disability:
an accommodation is “necessary” if it “alleviates the effects” of an impairment that limits a person’s ability to, among other things, walk, see, hear, or work.
However, it rejected what it considered the 2nd Circuit’s view. It found instead that economic necessity could arise from the effects of a disability, including the financial effects of an inability to work. Because working is one of the major life activities that may be substantially limited by a disability, the Court found it only logical that the effects of not working might create the necessity for a reasonable accommodation. The district court had never considered whether Shaw’s financial situation was caused by his disability so the 11th Circuit remanded for fact findings on that issue.
The Court concluded by discussing what it calls the last element of an accommodation claim, that the accommodation be necessary for the “equal” use and enjoyment of the house. The Court observes that a non-disabled person might have the same problem as Shaw; that is, insufficient income to meet Habitat’s requirements without family assistance. It then argues that Shaw’s preferential treatment vis a vis this non-disabled person does not matter because:
The inquiry is whether the requested accommodation would provide a disabled person an opportunity to enjoy a dwelling that would otherwise—due to his disability—elude him.
More precisely, as the Court recognizes, “under the FHA it is sometimes necessary to dispense with formal equality of treatment in order to advance a more substantial equality of opportunity.” quoting Cinnamon Hills Youth Crisis Ctr., Inc. v. St. George City, 685 F.3d 917, 923 (10th Cir. 2012).
The quote from Cinnamon Hills recognizes that preferential treatment is at the heart of all disabilities rights laws. The FHA, ADA and others recognize that in order to have an equal opportunity to find housing or participate in the economic life of the nation those with disabilities must sometimes be given preferential treatment with respect to policies, procedures and physical access. Every accommodation involves a preference, so it is meaningless to ask whether an accommodation puts a disabled person in a better position than a non-disabled person. It always does. However, the “necessity” element limits the preferences available to those necessary for that equality of opportunity.
That limit is at the heart of the necessity requirement. The Shaw court sees a split between the 11th and 2nd Circuits, but I don’t believe the decisions are inconsistent simply because correlation is not causation. As the 11th Circuit observes:
The record here isn’t so clear concerning whether Schaw would have been able to meet Habitat’s income requirement via wages earned prior to becoming paralyzed—it doesn’t tell us his pre-accident salary, or whether he lived independently or paid rent anywhere before the accident.
If Shaw’s poverty was merely correlated with his disability – if he, like the hypothetical non-disabled person, could not have earned enough to meet the income requirements even apart from his disability – then he would not have a disability related need for the accommodation. In Salute the court refers to economic disadvantages “that may be correlated” with disability. Shaw simply reminds us that sometimes disability is not merely correlated with, but is the cause of poverty.
At the end of the day stating that the FHA was not intended to remedy purely economic discrimination, as the 2nd Circuit does in Salute, doesn’t say anything about how a particular case should be decided. Those who are poor because of their disability may have a claim under the FHA because their poverty is an effect of their disability. Those who are poor because of other adverse circumstances do not have a claim. Deciding to what extent poverty is caused by disability in any individual case may be difficult, but the courts remind us again and again that each accommodation claim requires an individualized inquiry. Broad statements of principle make good reading in Circuit Court decisions, but the real work for FHA accommodation claims will always be done in the district courts dealing with cases as individual as the plaintiffs who bring them.