concerning the extent to which HUD exerts control over the
Authority, convinces the Court that the Authority receives
some financial assistance from HUD and, therefore, must comply
with all federal statutes that prohibit discrimination against
B. Fair Housing Act.
The court finds that the challenged practices violate the
Fair Housing Act. The Fair Housing Amendments Act (FHAA),
passed in 1988, extended the protections embodied in the Fair
Housing Act to handicapped persons. Title
42 U.S.C. § 3604(f)(1) now makes it unlawful "[t]o discriminate in the sale
or rental, or to otherwise make unavailable or deny, a dwelling
to any buyer or renter because of a handicap." Section 3602(h)
defines "handicap" as including any "physical or mental
impairment which substantially limits one or more . . . major
life activities." The defendants do not dispute that the
plaintiffs are handicapped as defined by the statute.
Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926,
934 (2d Cir. 1988), aff'd on other grounds, 488 U.S. 15, 109
S.Ct. 276, 102 L.Ed.2d 180 (1988) established that plaintiffs
suing under the Fair Housing Act can succeed either by showing
discriminatory impact or discriminatory treatment. Proof of the
latter requires a showing of intent to discriminate. Plaintiffs
allege only that the Authority's practices have the effect of
discriminating against handicapped individuals.
Defendants point out that, since 1987, of 276 handicapped
applicants for housing, only 17 have had their applications
denied on the basis of conclusions reached from the
application of the challenged "ability to live independently"
criteria. They argue that this statistic proves that there is
no discriminatory effect.
The Authority, however, improperly measures effect. A
plaintiff makes out a prima facie case of disparate impact by
showing that a given practice has a greater impact on
handicapped applicants than on non-handicapped ones. See
Metropolitan Housing Development Corp. v. Village of Arlington
Heights, 558 F.2d 1283, 1288 (7th Cir. 1977), cert. denied,
434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772 (1978); Baxter v. City
of Belleville, 720 F. Supp. 720, 732 (N.D.Ill. 1989). Thus,
discriminatory effect is shown by proof that all persons
negatively affected by an allegedly unlawful practice are
handicapped. See Familystyle of St. Paul v. City of St. Paul,
728 F. Supp. 1396, 1403 (D.Minn. 1990). In this case, defendants
deny housing only to handicapped applicants on the basis of an
inability to live independently; no non-handicapped persons
apparently were denied housing on the basis of their inability
to live independently. I therefore find that plaintiffs have
sufficiently shown discriminatory effect.
Having determined the existence of adverse impact, the
question remains whether defendant somehow may avoid liability
under the Act. As phrased in Town of Huntington, 844 F.2d at
936, "the defendant must prove that its actions furthered, in
theory and in practice, a legitimate, bona fide governmental
interest and that no alternative would serve that interest with
less discriminatory effect."
I find defendants' justifications for their actions to be
without merit. Defendants contend that inquiring into a
handicapped person's ability to live independently furthers
the goal of ensuring that tenants will respect the property
and rights of other residents. As discussed infra, the need to
protect other tenants from physical dangers posed by
destructive tenants surely is an important governmental
interest. Nevertheless, I am not convinced that delving into an
applicant's confidential medical history, or requiring that the
applicant demonstrate an ability to live independently, are the
least discriminatory methods of advancing that interest.
In enacting FHAA, Congress specifically considered the
plight of housing applicants with mental illnesses. "In the
case of a person with a mental illness . . . there must be
objective evidence from the person's prior behavior that the
person has committed overt acts which caused harm or which
directly threatened harm." H.R.Rep. No.
711, 100th Cong. 2d Sess. 5, reprinted in 1988 U.S.Code Cong. &
Admin.News 2173, 2190 ("House Report"). The landlord's
determination must not rest on "unsubstantiated inferences."
See id. at 2191. In my view, there is no objective evidence
concerning threatened harm that justified rejecting Cason, Roe
The court is sympathetic to the Authority's desire not to
rent public housing to persons with objectively dangerous
tendencies. Nevertheless, defendants have produced no evidence
that the challenged practices allow the Authority to screen
out potentially dangerous tenants, nor have they shown the
court that less intrusive means of investigating applicants,
such as requests for landlord references, would be ineffective
in achieving the desired ends.
Presumably, in renting to a non-handicapped person, the
Authority takes a similar, and perhaps in some cases a
greater, risk that some harm will come to the property or to
other tenants. Yet such applicants' ability to live
independently is never questioned, and they are not required
to disclose their medical history. It would thus seem that the
authority is content to rely upon information of a less
intrusive and personal nature to assess the threat posed by
these non-handicapped tenants. Without any objective evidence
to indicate otherwise, it appears that the difference in
treatment of the handicapped stems from unsubstantiated
prejudices and fears regarding those with mental and physical
disabilities. This is precisely the sort of situation that the
fair housing laws were designed to prohibit.
Another factor relevant to a Fair Housing Act challenge is
whether there exists evidence of discriminatory intent.
Plaintiffs here, to the extent they base their position on a
showing of adverse impact, offer no evidence of intent. This,
however, is not fatal to their case. At least one court has
recognized that the intent component is the least important
under the test articulated in Arlington Heights and followed by
this circuit in Town of Huntington. See Baxter, 720 F. Supp. at
732. Surely, evidence of discriminatory intent would aid
plaintiffs' position, but the absence of such proof weighs only
slightly against granting relief.
The court in Town of Huntington followed Arlington Heights
and ruled that the "balance should be struck more readily in
favor of the plaintiff when it is seeking only to enjoin a
municipal defendant from interfering with its own plans rather
than attempting to compel the defendant itself to build
housing." 844 F.2d at 940. Although the Second Circuit dealt
with a challenge to a discriminatory zoning ordinance, its
reasoning applies here as well. Plaintiffs seek not to compel
the Authority to develop housing, but merely to change the
procedure by which it selects tenants for its existing
C. Regulatory Violations.
The Authority's practice of making inquiry into an
applicant's ability to live independently is clearly at odds
with the regulations promulgated by the United States
Department of Housing and Urban Development ("HUD"). Part 24
of the Code of Federal Regulations (C.F.R.), at § 100.202(c),
explicitly defines the permissible scope of inquiry allowed of
a handicapped applicant for housing:
(c) It shall be unlawful to make an inquiry to
determine whether an applicant for a dwelling . .
. has a handicap or to make inquiry as to the
nature or severity of a handicap of such a
person. However, this paragraph does not prohibit
the following inquiries, provided these inquiries
are made of all applicants, whether or not they
(1) Inquiry into an applicant's ability to meet
the requirements of ownership or tenancy.
The remaining exceptions, which allow inquiries relating to
specific types of housing, as well as those aimed at
determining whether an applicant is a substance abuser or
engages in other illegalities, are not at issue here.
The "requirements of tenancy" referred to above may be found
at 24 C.F.R. § 966.4. This section details various lease
requirements related to public housing, and
at subsection (f) lists 12 separate obligations that the lease
may impose on tenants. Each concerns requirements that tenants
not conduct themselves or treat the property in a manner that
will interfere with other tenants' health, safety or enjoyment
of the property. Tenants must, inter alia, avoid physical
damage to the premises, keep them in a sanitary condition and
comply with all applicable housing codes. Nowhere is there
found a requirement that a resident be able to live
"independently," rather than with the aid of others.*fn1
Defendants do not deny that their conduct contravenes the
current HUD regulations. Their position appears to be that
because they annually send an outline of their procedures to
HUD and that HUD has given at least tacit approval to those
procedures that they are in compliance with HUD requirements.
It is clear, however, that the last "approval" of the
Authority's policies was over two years ago, in 1988, and was
apparently based on the 1987 HUD handbook. The applicable
federal regulations that now control were promulgated
after these dates. In any event, the prior approval by HUD
cannot excuse the Authority from complying with all
requirements of federal statutes and regulations concerning
discrimination in housing. Clearly, the federal regulations
cited above now control and the Authority must follow them.
C.F.R. Part 24, § 100.202(d), tracking the language of
42 U.S.C. § 3604(f)(9), does permit the Authority to refuse to
rent a dwelling to one whose tenancy will pose a direct threat
to the health and safety of others, or will result in physical
damage to the property. There is no evidence in the record,
however, to indicate that an inability to live independently
creates the type of threat contemplated by the statute. Cf.
City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 450,
105 S.Ct. 3249, 3259, 87 L.Ed.2d 313 (1985) (concerns that
allowing establishment of group home for retarded citizens
would physically endanger community were unfounded — similar
concerns attached to locating apartment and fraternity houses
in same location); see also Association of Relatives and
Friends of AIDS Patients v. Regulations and Permits
Administration, 740 F. Supp. 95 (D.P. R. 1990) (No evidence that
tenancy of 10 terminal AIDS patients carries significant threat
to safety of community).
"Generalized perceptions about disabilities and unfounded
speculations about threats to safety are specifically rejected
as grounds to justify exclusion [from housing]." House Report,
D. Class Certification Motion.
Plaintiffs seek to certify this as a class action, with the
class composed of
all individuals with handicaps, as defined by the
Fair Housing Act and § 504 of the Rehabilitation
Act, who have in the past three years applied for,
are presently applying for or will in the future
apply for, low income public housing administered
by defendant Rochester Housing Authority.
Plaintiffs bear the burden of proving that this action meets
the threshold requirements of Federal Rule of Civil Procedure
23(a), which provides, in full: