The Lawletter Vol 40 No 5
The Fair Housing Act ("FHA"), 42 U.S.C. §§ 3601–3631, the Americans with Disabilities Act ("ADA"), id. §§ 12101–12213, and the Rehabilitation Act ("RA"), 29 U.S.C. §§ 701–796l, each prohibit certain forms of discrimination based on physical impairments. See 42 U.S.C. § 3604(f)(1) (making it unlawful "[t]o discriminate in the sale or rental [of], or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap"); id. § 12112(a) (making it unlawful to discriminate against disabled persons in employment); id. § 12132 (same regarding public services); id. § 12182(a) (same regarding public accommodations); id. § 594(a) (same regarding "any program or activity receiving Federal financial assistance").
"The relevant portions of the FHA, ADA, and [RA] offer the same guarantee that a covered entity . . . must . . . make the entity's benefits and programs accessible to people with disabilities," and, thus, the analysis "under the three statutes is treated the same." Sinisgallo v. Town of Islip Hous. Auth., 865 F. Supp. 2d 307, 337 (E.D.N.Y. 2012) (internal quotation marks omitted). A person is considered to have a disability under the FHA, ADA, and RA if that person has, in fact, a record of, or is merely regarded as having, "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2) (ADA); id. § 3602(h) (FHA). "[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." Id. § 12102(2)(A) (emphasis added).
Recently, the U.S. Court of Appeals for the Second Circuit joined the Fourth Circuit in adding another category to the list of major life activities: obtaining housing/shelter.
[The Second Circuit] has not determined whether "obtaining housing" is a major life activity, but the Fourth Circuit has held that it is. United States v. S. Mgmt. Corp., 955 F.2d 914, 919 (4th Cir. 1992). We agree. "Major life activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." 24 C.F.R. § 100.201(b). But this list is "not exclusive." Reeves [v. Johnson Controls World Servs.], 140 F.3d [144,] 150 [(2d Cir. 1998)]; see also Bartlett v. N.Y. State Bd. of Law Exam'rs, 226 F.3d 69, 79-80 (2d Cir. 2000). Major life activities are "those activities that are of central importance to daily life," Toyota Motor [Mfg., Ky., Inc. v. Williams], 534 U.S. [184,] 197 [(2002)], including reading, Bartlett, 226 F.3d at 80, and interacting with others, Jacques v. DiMarzio, Inc., 386 F.3d 192, 202-04 (2d Cir. 2004). On the other end of the spectrum are those activities that are "insufficiently fundamental," such as performing housework and shopping. Colwell v. Suffolk Cnty. Police Dep't, 158 F.3d 635, 642-43 (2d Cir. 1998). The ability to obtain shelter is among the most basic of human needs and thus is a "major life activity" for purposes of the FHA. We note that a person is not substantially limited in the major life activity of obtaining housing simply because she is unable to, or regarded as unable to, live in a particular dwelling. Rather, a person is substantially limited if, due to her impairment, she cannot live or is regarded as unable to live in a broad class of housing that would otherwise be accessible to her.
Rodriguez v. Vill. Green Realty, Inc., No. 13-4792-CV, 2015 WL 3461554, at *13 (2d Cir. June 2, 2015); see also Jeffrey O. v. City of Boca Raton, 511 F. Supp. 2d 1328, 1336-37 (S.D. Fla. 2007) (assuming without deciding that the ability to secure housing is a major life activity); Oxford House, Inc. v. Township of Cherry Hill, 799 F. Supp. 450, 459 n.21 (D.N.J. 1992) (recognizing, in dicta, that the Fourth Circuit has held that the ability to obtain housing is a major life activity).
Although this issue has arisen mostly in the context of drug and alcohol rehabilitation centers, see, e.g., United States v. S. Mgmt. Corp., 955 F.2d 914 (4th Cir. 1992); Jeffrey O., 511 F. Supp. 2d 1328; Oxford House, 799 F. Supp. 450, it is clearly not limited to that context, see, e.g., Rodriguez, 2015 WL 3461554, at *1, *3 (parents alleged that real estate agent forced them to leave their home because of their daughter's epilepsy). Furthermore, it is important to note, as emphasized in the above-quoted material, that the major life activity of obtaining housing does not mean the housing of one's choice. See, e.g., Rodriguez, 2015 WL 3461554, at *13.
Given that the class of major life activities remains open, see 42 U.S.C. § 12102(2)(A), it is prone to further development through litigation.