The Meaning of “Handicap/Disabled”: Defining the Protected Characteristic
The Fair Housing Act (FHA) defines “handicap” as:
- A physical or mental impairment which substantially limits one or more of a person’s major life activities;
- A record of having such an impairment; or
- Being regarded as having such impairment.
This is a very broad definition and virtually matches the definition found in Section 504 of the Rehabilitation Act of 1973.
Part 1 of the definition includes three critical elements: (1) physical or mental impairment; (2) substantially limits; and (3) major life activity. As noted in 24 C.F.R. §100.201(b), A “major life activity” includes such functions as “caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”
All physical and mental impairments are included and protections extend to those who are substantially limited by alcoholism, emotional problems, mental illness, and learning disabilities. The legislative history of the Fair Housing Amendments Act of 1988 and court decisions since passage of the 1988 Act have extended protection to persons suffering from communicable diseases, including AIDS and persons who are HIV positive. Drug addiction is also included (but not current, illegal use of a controlled substance).
Almost any impairment can be a disability, but only if it is severe enough to “substantially limit” a major life activity. The courts have deemed that “substantially” means “considerable” or to a “large degree” and “precludes impairments that interfere in only a minor way” with major life activities (see Toyota Motor Mfg., Kentucky, Inc., v. Williams – 2002). Relevant factors in determining substantiality include the impairment’s nature and severity, its expected duration, and the probable long-term impact resulting from the impairment.
The Supreme Court has ruled that conditions that can be corrected are not disabilities within the context of the law (e.g., a person with severe vision impairments that are corrected by glasses is not disabled).
Part 2 of the definition covers people who have a record of disability, such as a former drug addict or recovering alcoholic.
Part 3 of the definition covers people who are regarded as having such impairment. This protects people who are “perceived” as being disabled, such as elderly or persons who are HIV positive.
The FHA protection against disability discrimination also extends to nondisabled renters or buyers who reside or are associated with people with disabilities. This means that the law prohibits denials of housing opportunities to applicants because they have children, parents, friends, spouses, roommates, patients, subtenants, or other associates who have disabilities. For example, if a resident has a friend with an assistance animal and a property refuses to allow the assistance animal to accompany the friend when visiting the resident, it could be considered discrimination even though the resident is not disabled. In this case, the resident would be denied the right to have a visitor due to the disability of the visitor; this could well be construed as a violation of fair housing law.
Housing operators should remember that the definition of “handicapped/disabled” for fair housing purposes is very broad. Great care must be taken when determining whether the provisions of the FHA relating to the disabled apply to individual circumstances at the property level.