By Michael Allen, Partner, Relman Colfax
Unless you have a disability (or know someone who does), you might not spend much time thinking about the width of your doorways or the height of your kitchen countertops. But since those are critical to whether rental housing is accessible for people with disabilities, federal laws require attention to such issues. Those requirements grow out of a commitment to full participation and inclusion for 60 million Americans with disabilities, and to the removal of architectural and attitudinal barriers that too often relegate them to the fringes of American society.
Since at least 1988, federal law has required that apartment buildings be built so that they are accessible to people with mobility impairments (e.g., people who use wheelchairs, walkers or canes, or who have breathing or heart problems that make it hard to walk significant distances) or vision or hearing limitations. When federal funding is involved, the law goes a step further, requiring that certain apartment units have enhanced features in bathrooms, kitchens and other rooms that make them accessible to people with significant mobility, hearing or vision disabilities. The laws are specific, providing detailed measurements for compliance, because a door that is too narrow, or a threshold that is too high, or a sink that cannot be approached in a wheelchair is simply not accessible.
Laws are only truly effective when enforced. So, over the past 13 years, Relman Colfax has successfully litigated or settled more than a dozen lawsuits against private developers who failed to build new apartment communities to be accessible to people with disabilities. Some developers tried to minimize our clients’ litigation, by claiming that they had done the construction “almost right,” missing some of the requirement by just a few inches. We eventually convinced them (and several federal judges) that a “few inches” in the width of a doorway or height of a threshold is no small matter. Wheelchairs can’t get through doors that are “a few inches” too narrow, rendering a bathroom or an entire apartment inaccessible. Those “few inches” can be the difference between inclusion and exclusion of people with disabilities.
Our early cases were important, resulting in modifications that made thousands of market rate apartment units more accessible. But, too often, low-income people with disabilities are priced out of the private market. As a result, they depend heavily on government-subsidized affordable housing.
With that in mind, in 2010, the Firm’s litigation focus began to shift toward examining whether big-city affordable housing programs were complying with accessibility requirements. In those days, cities like Los Angeles and Chicago received as much as $130 million each year in block grant funds from the U.S. Department of Housing and Urban Development. They also distributed tens of millions of dollars each year to developers in the form of Low Income Housing Tax Credit benefits. When the cities accepted the federal funding, they agreed to comply with the heightened accessibility requirements (such as wider doors, lower countertops and roll-in showers). But when our clients—disability rights organizations in each city—complained that the housing programs must be doing something wrong because their own disabled clients could not find accessible, affordable housing, the cities stonewalled them, telling them they simply did not know what they were talking about. When we realized that these sophisticated cities were simply ignoring their unambiguous obligations under federal law, and then bullying disability rights organizations for protesting, it became clear to me and to my colleagues that shaming the city was not going to improve their behavior. It was time to go to court.
Our Los Angeles investigation revealed that the housing department in the nation’s second most populous city had, for 30 years, been handing out billions of dollars of public funds to private developers (resulting in more than 60,000 affordable units) without insisting they comply with federal accessibility requirements. As a result, the city lacked at least 4,000 highly accessible apartments for low-income residents with disabilities. As a direct result, hundreds of people with disabilities (some as young as 30) ended up living in nursing homes, assisted living or homeless shelters because they could not find affordable apartments with accessible bathrooms or kitchens. Thousands more were living in their cars, or even worse, on the street. Thousands of others were making do in inaccessible or substandard housing—getting out of their wheelchairs and crawling into the bathroom because the doors were too narrow or forced to call the rescue squad when they needed to leave second- or third-floor apartments for routine doctor or social services appointments. No less outrageously, many of the few precious units designated as accessible had been rented to people without disabilities, because managers failed to do the affirmative outreach required to notify people who actually needed the accessibility features.
So, in 2012, we filed suit. During the intensive discovery process that followed, we were able to demonstrate that hundreds of Los Angeles apartment complexes failed to meet federal accessibility requirements. In September 2016, the Firm entered into a settlement agreement with the City of Los Angeles, under which the city is required to: develop at least 4,000 units of accessible housing within 10 years; ensure that newly built housing complies with federal requirements; and enforce policies requiring owners and managers to respect the rights of residents with disabilities. In addition to the estimated $200 million cost of remediation, the settlement also provided for nearly $25 million in total damages to the disability rights organizations, as well as attorneys’ fees and expenses. Since then, disability rights groups in Los Angeles have set about the task of “liberating” people from nursing homes and other institutional settings, and helping them to move into their own new, accessible apartments.
A similar tale is now unspooling in the nation’s third most populous city. After many years of limited success placing its clients in affordable, accessible housing in Chicago, a city with an affordable housing program boasting more than 60,000 units, our client, Access Living, began an in-depth investigation of the city’s compliance in 2017. Through review of public documents and responses to public records requests, Access Living learned that no city agency could identify the location of the highly accessible units required by law. Site visits to a number of apartment complexes confirmed either that no accessible units existed, or that those designated as accessible did not meet federal requirements. The Firm filed a lawsuit in May 2018, alleging Chicago had violated federal accessibility laws, and seeking broad injunctive relief mirroring the terms of the Los Angeles settlement. The suit has survived the city’s initial legal challenge, and we are just beginning the discovery phase, through which we expect to demonstrate that Chicago is out of compliance.
I didn’t go to law school with the expectation that I’d litigate over the width of doors and the height of countertops. But I came to Relman Colfax because, as a firm, we fight for inclusion and against injustice. Sometimes that fight comes down to just a few inches, because those few inches are the difference between having the chance to live in the mainstream of society or being relegated to the sidelines.
Michael Allen is a Partner at Relman Colfax. Over the past decade, Michael has led the firm’s disability rights practice as it litigated dozens of housing discrimination cases.
For more information on the lawsuits discussed in this piece, visit the case profiles of Independent Living City of Southern California v. City of Los Angeles and Access Living of Metropolitan Chicago v. City of Chicago.