by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

FAIR HOUSING; DISABILITY ACCOMODATION: Care facility has legitimate "business necessity" to prohibit resident's use of motorized carts in areas and at times that such use may cause danger to other residents and such restriction is not prima facie disparate treatment of a "group" when only one resident is affected by the rule.

U.S. v. Hillhaven Corp., No. 94 CV-770-S (C.D. Utah 2/7/97)

The government brought suit on behalf of a disabled elderly woman who required an electric cart for mobility within the nursing home where she lived. The managers of the nursing home first had prohibited the use of such carts, and then, in response to this resident's complaints, gradually relented to the extent that they prohibited use of the carts only during high traffic periods in the common rooms and dining area. This apparently was not enough for HUD, which saw housing discrimination in the home's policies.

HUD argued that the home had imposed "disparate impact" upon a protected class and had a duty to show that a business necessity required such a policy. It proposed certain alternative approaches to the problem that the nursing home had not yet tried, and from that argued that the home had not shown that the prohibition was "compelled" by a business justification.

The court first held that there was no disparate impact here because the impact was on only one resident, and not on a class. Therefore, as a matter of law, there was no Fair Housing violation.

The court then proceeded to assume disparate impact. It then turned to the "business justification" analysis discussed in Mountain Side Mobile Estates v Secretary of Hud,, 56 F.3d 1243 (10th Cir. 1995) (Mountain Side II).

The *Mountain Side* doctrine was discussed in an earlier DD - the *Pfaff* case discussion in the DD for 8/30/96. But the Mountain Side doctrine discussed there was the doctrine as developed at the HUD administrative hearing level. In fact, the administrative decision in Mountain Side I subsequently was reversed by the Tenth Circuit Court of Appeals in Mountain Side II.

The administrative judge in Pfaff and Mountain Side I had discussed the "business justification" test as one equivalent to the traditional "compelling state's interest" test Constitutional adjudications involving protected civil rights. Mountain Side II, on the other hand, takes a more moderate approach. Although the Tenth Circuit agreed that a prima facie case of discrimination exists whenever a housing policy has a disparate impact, regardless of intent, it went on to conclude that where the landlord shows a neutral business justification for its decision, the party arguing that the Fair Housing Act was violated nevertheless has the duty to show that this justification does not support the policy. The landlord does not have to demonstrate that there is no other policy that will satisfy its requirements, only that its policy has legitimate support from a neutral and appropriate business objective.

The landlord also must show that it has made efforts to accomodate the complaining party, but the court found adequate evidence of attempts to accomodate here.

Comment 1: The case is somewhat confusing in its discussion of disparate impact. It concludes that because there is only one resident requiring a motorized cart, the policy adopted by the landlord does not impact on a class, but only on an individual. But certainly there are many potential residents of the home who are disabled to the extent that they need such a cart, and the policy applies to prospective, as well as current tenants. Of course, we don't know what HUD argued in this regard, but it does appear that with an appropriate argument it should have been able to prevail on the disparate impact argument.

Comment 2: Notwithstanding the editor's disagreement with the first part of the decision, the editor welcomes the second part, which concludes that the landlords in this case had an adequate justification for their policy in the concern for the safety of the other residents and were not required to eliminate every conceivable option to accomplish their safety goal before implementing the policy. Once challenged, they did make reasonable attempts within that policy to accomodate the plaintiff, but she (or, at least HUD) could not be satisfied.

Comment 3: Of course, we only have the court's statement of facts justifying its conclusion. There may be more in the record. But the case appears to be one more example of HUD overreaching by pressing this nursing home operator to experiment with the safety of its other occupants in order to provide unlimited driving rights to this one resident, who admitted herself that her weak eyesight made safe operation of the cart a danger in crowded areas. The court properly commented that the other residents, themselves suffering from various disabilities, might themselves be unable to avoid a collision, and the nursing home was correct in taking the whole interraction of the resident group into account.

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