Civil Rights ReporterJournal of the Texas Workforce Commission Civil Rights Division

Bryan Snoddy - Division Director

03I S S U E

APRIL2020

Texas Workforce Commisson CommissionersBryan Daniel - Chairman and Commissioner Representing the PublicJulian Alvarez - Commissioner Representing LaborAaron Demerson - Commissioner Representing Employers

Fair Housing MonthSlim Edition

History of Fair HousingBy: Ellena Rodriguez; CRD, Outreach, Compliance andResolutions Manager

On April 11, 1968, President and fellowTexan Lyndon Johnson signed theCivil Rights Act of 1968, which wasmeant as a follow-up to the Civil RightsAct of 1964. The 1968 Act expandedon previous acts and prohibiteddiscrimination concerning the sale,rental, and financing of housing basedon race, color, religion, national origin,

sex, (and as amended) handicap and family status. Title VIIIof the Act is also known as the Fair Housing Act (of 1968).

The enactment of the federal Fair Housing Act on April 11,1968 came only after a long and difficult journey. From 1966-1967, Congress regularly considered the fair housing bill,but failed to garner a strong enough majority for its passage.However, when the Rev. Dr. Martin Luther King, Jr. wasassassinated on April 4, 1968, President Lyndon Johnsonutilized this national tragedy to urge for the bill’s speedyCongressional approval. Since the 1966 open housingmarches in Chicago, Dr. King’s name had been closelyassociated with the fair housing legislation.

President Johnson viewed the Act as a fitting memorial to theman’s life work and wished to have the Act passed prior toDr. King’s funeral in Atlanta.

Another significant issue during this time period was thegrowing casualty list from Vietnam. The deaths in Vietnamfell heaviest upon young, poor African-American andHispanic infantrymen. However, on the home front, familiescould not purchase or rent homes in certain residentialdevelopments on account of their race or national origin.Specialized organizations like the NAACP, the NationalAssociation of Real Estate Brokers (NAREB), the GI Forum,and the National Committee Against Discrimination InHousing lobbied hard for the Senate to pass the Fair HousingAct and remedy this inequity. Senators Edward Brooke andEdward Kennedy of Massachusetts argued deeply for thepassage of this legislation. In particular, Senator Brooke, thefirst African-American ever to be elected to the Senate bypopular vote, spoke personally of his return from World WarII and inability to provide a home of his choice for his newfamily because of his race.

With the cities rioting after Dr. King’s assassination, anddestruction mounting in every part of the United States, thewords of President Johnson and Congressional leaders rangthe Bell of Reason for the House of Representatives, who

Mission StatementThe mission of the Civil Rights

Division is to reduce discriminationin employment and housing through

education and enforcement.

VisionThe vision of the Civil Rights Division is to help create anenvironment in which the people of the State of Texasmay pursue and enjoy the benefits of employmentand housing that are free from discrimination.

subsequently passed the Fair Housing Act. Without debate,the Senate followed the House in its passage of the Act,which President Johnson then signed into law.

When April 1969 arrived, HUD could not wait to celebratethe Act’s 1st Anniversary. Within that inaugural year, HUDcompleted the Title VIII Field Operations Handbook, andinstituted a formalized complaint process. In truly festivefashion, HUD hosted a gala event in the Grand Ballroom ofNew York’s Plaza Hotel. From across the nation, advocatesand politicians shared in this marvelous evening, includingone of the organizations that started it all -- the NationalCommittee Against Discrimination In Housing.

The power to appoint the first officials administeringthe Act fell upon President Johnson’s successorRichard Nixon. President Nixon tapped thenGovernor of Michigan, George Romney, for the postof Secretary of Housing and Urban Development. Whileserving as Governor, Secretary Romney had successfullycampaigned for ratification of a state constitutional provisionthat prohibited discrimination in housing. President Nixonalso appointed Samuel Simmons as the first AssistantSecretary for Equal Housing Opportunity.

In subsequent years, the tradition of celebrating FairHousing Month grew larger and larger. Governors began toissue proclamations that designated April as “Fair HousingMonth,” and schools across the country sponsored posterand essay contests that focused upon fair housing issues.Regional winners from these contests often enjoyedtrips to Washington, DC for events with HUD and theirCongressional representatives.

Texas Key Statutes

• Texas Fair Housing Act (single-family):Texas Property Code, Chapter 301

• Texas Fair Housing Act (Subsidized Housing): Local Government Code, Section 392.006

• Accessibility Features in Single-FamilyAffordable Housing:Texas Government Code, Section 2306.514

Relevant Federal Laws

• Fair Housing Act of 1988:U.S. Department of Housing and Urban Development

Photos courtesy Getty Images

www.texasworkforce.org

Let’s Work Together for Fair Housing

A portion of the work that provided the basis for this publication was supported by funding undera Cooperative Agreement with the U.S. Department of Housing and Urban Development. The

substance and finding of the work are dedicated to the public. The author and publisher aresolely responsible for the accuracy of the statements and interpretations contained in this

publication. Such interpretations do no necessarily reflect the views of the Government.

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At Last: New Service and Emotional Support AnimalGuidance From HUD

By: Erin Humphreys, Civil Rights Investigator

BackgroundEveryoneinvolved in thepractice of FairHousing has beeneagerly awaitingguidance fromthe Departmentof Housing and

Urban Development (HUD) regardingthe verification of assistance animals.Assistance animals include bothservice animals and emotional supportanimals (ESAs). As of January 28 2020,60% of all FHA complaints concernthe allegations of denial of reasonableaccommodations and disability access.For that 60%, requests for reasonableaccommodations for assistanceanimals are climbing quickly.

The last time that HUD offered anybeacon on the issue was in 2013.That guidance, FHEO-2013-01, waseffective until amended, superseded,or rescinded. That guidance clarifiedthat assistance animals are not petsand are not required to be individuallytrained by either the Fair Housing Act(FHA) or Section 504 regulations.The 2013 guidance ordered thathousing providers evaluate requestsfor a reasonable accommodationfor an assistance animal using thesame general principles as all otherreasonable accommodation requests.The only direction in this documentregarding what documentationshould be regarded as acceptablewas that a person whose disabilityor disability-related need for anESA is not apparent could be asked

to provide documentation from a physician, psychiatrist, social worker,or other mental health professional.More explicitly, housing providerswere ordered not to ask the requestorfor documentation if their disabilityis apparent nor to ask for access tomedical records or medical providersfor detailed or extensive information.

The big question following the 2013guidance seemed simple: what is validdocumentation? With the rise of onlinemedical professionals and certificatescams, housing providers were afraidto say no to an ESA request and afraidto question a document’s authenticity.As of January 28, 2020, we havemore answers!

FHEO-2020-01The new HUD guidance documentreplaces FHEO-2013-O1 and providesa set of best practices regarding thetype of documentation that housingproviders may ask for and individualsmaking a reasonable accommodationrequest for an assistance animal shouldbe ready and willing to provide.

The 2020 guidance begins byexplaining what an assistance animalis. Primarily, they are not pets. The twotypes of assistance animals are serviceanimals and animals taught do work,perform tasks, provide assistance,and/or provide therapeutic emotionalsupport for persons with a disability (asupport animal). Animals that do notfit these categories are pets and aresubject to any restriction or obligation(namely money) that the housingprovider requires. HUD explicitly states

that they provided this new guidance“to help housing providers distinguishbetween a person with a non-obviousdisability… and a person without adisability who simply wants to have apet or avoid the costs and limitationsimposed by housing providers…”

Guidance for Making a Request foran Assistance AnimalIt is not necessary to submit a writtenrequest or specifically state that arequestor is making a “reasonableaccommodation request”. Therequestor may request a reasonableaccommodation either before or afteracquiring the assistance animal.Requestors are encouraged to do so toavoid miscommunication. Requestorsand housing providers are encouragedto keep documentation of the requestand the information provided in case ofa later dispute.

Best Practices for AnimalReasonable AccommodationRequestsThe following is a breakdown of theprocess housing providers should,but are not required, to use to helpdetermine if an animal is an assistanceanimal.

Part 1: Service Animals

1. Is the animal a dog? • If no, the animal is not a

service animal but may beanother type of assistanceanimal and the provider shouldskip ahead to Part 2.

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2. Is it readily apparent that thedog is trained to do work orperform tasks for the benefit of anindividual with a disability?

• If yes, further inquiries areunnecessary and inappropriatebecause the animal is aservice animal.

• If no, proceed to next step. 3. It is advisable for the housing

provider to limit its inquiries to thefollowing two questions:

a. Is the animal required becauseof a disability?

b. What work or task has theanimal been trainedto perform?

• If the answer is yes anda task or work assignmentis identified, grant theaccommodation.

• If no, the animal does notqualify as a service animalbut it may be another type ofassistance animal and youshould proceed to Part 2.

But wait, what is work or a task?HUD has an answer: “If the individualidentifies at least one action that thedog is trained to take which is helpfulto the disability other than emotionalsupport, the dog should be considereda service animal and permittedin housing.”

Part 2: Assistance Animals otherthan Service Animals

Important Note: Assistance animal isnot common terminology in the housingindustry. The use of this term is causingsome alarm in the community. Simplyput, an assistance animal other than aservice animal is an emotionalsupport animal.

4. H as the individual requested a

reasonable accommodation – thatis, asked to get or keep an animalin connection with a physical ormental impairment or disability?

• If yes, proceed to Part 3. • If no, the housing provider

is not required to grant areasonable accommodation.

Part 3: Documentation andVerification

Important Note: The 2020 guidancespecifically addresses documentationfrom the internet. Websites which sellcertificates, registrations, and licensingdocuments for assistance animals arenot sufficient to reliably establish thatan individual has a disability-relatedneed for an ESA. Legitimate, licensedhealth care professionals who deliverservices remotely, including theinternet, who provide a note confirminga disability and/or need for an animalwith personal knowledge of theindividual is sufficient.

5. D oes the person have an

observable disability or does thehousing provider (or agent makingthe determination for the housingprovider) already have informationgiving them reason to believe thatthe person has a disability?

• If yes, skip to question #7. 6. H as the person requesting

the accommodation providedinformation that reasonablysupports that the personseeking the accommodationhas a disability?

• If yes, proceed to next step. • If no, the housing provider

is not required to grant theaccommodation unlessthe information is providedbut they may not deny theaccommodation unless therequester has been provideda reasonable opportunity to

do so. i. Housing providers are

encouraged to refer therequestor to this guidancedocument to help themunderstand what informationthe provider is seeking andensure that the provider willreceive the disability-relatedinformation that isactually needed.

7. H as the requestor providedinformation which reasonablysupports that the animal doeswork, performs tasks, providesassistance, and/or providestherapeutic emotional supportwith respect to the requestor’sdisability?

• If yes, proceed to Part 4. • If no, the housing provider

is not required to grant theaccommodation unlessthe information is providedbut they may not deny theaccommodation unless therequester has been provided areasonable opportunity todo so.

Important Note: The 2020 guidancespecifies that documentationcontemplated is recommended toinclude the following information: thepatient’s name, whether there is aprofessional relationship between thehealthcare professional and the patient,and the type of animal(s) for which thereasonable accommodation is sought.Further, it should include the following information addressing the requestor’sdisability: whether the patient has aphysical or mental impairment,whether that impairment substantiallylimits at least one major life activityor major bodily function, and why thepatient needs the animal(s). The

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professional should sign and dateany documentation and providecontact information and professionallicensing information.

Part 4: Type of Animal 8. I s the animal commonly kept in

households?

• If yes, the reasonableaccommodation should beprovided under the FHAexcepting general exceptionslisted in the guidancedocument.

i. Animals commonly kept in thehouseholds which should begranted: dog, cat, small bird,rabbit, hamster, gerbil, otherrodent, fish, turtle, or othersmall, domesticated animalthat is traditionally kept in thehome for pleasure rather thancommercial purposes.

• If no, the reasonableaccommodation need not beprovided except in very rarecircumstances.

i. Fun fact: If the request isfor a unique animal, therequestor bears the burdenof demonstrating a disability-related therapeutic need forthat specific animal and typeof animal. A monkey couldbe trained to do things likepreparing a bottle of water!

Valid Reasons for Refusal 1. Failure to meet the threshold

established in Parts 1 through 4.

2. If the individual’s tenancy wouldconstitute a direct threat to thehealth or safety of other individualsor substantial physical damage tothe property of others.

3. T he accommodation would imposea fundamental alteration to theprovider’s operations or impose anundue financial and administrativeburden and there are no effectivealternative accommodations.

Further ReadingDOJ’s ADA Requirements: ServiceAnimals

https://www.ada.gov/service_animals_2010.htm

DOJ’s Frequently Asked Questionsabout Service Animals and the ADA

https://www.ada.gov/regs2010/service_animal_qa.html

HUD/Department of Justice (DOJ)Joint Statement on ReasonableAccommodations Under the FHA

https://www.hud.gov/sites/documents/huddojstatement.pdf

Photos courtesy Getty Images

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CRD TrainingCRD Training

Civil Rights Division Education, Training & OutreachMarilyn Diaz; Outreach, Compliance and Resolutions Asst.

The TexasWorkforceCommissionCivil RightsDivision (CRD)is committed toproviding trainingand outreachto employers,employees,

housing providers, housing consumersand other stakeholders. We also,believe that being proactive andeducating yourself is vital to reducingDiscrimination and harassment in theworkplace, so our training team offersEEO and Fair Housing classroom,Webinar training and online computer-based overview course. We are able tocustomize our training to your needs,focusing on the issues that matter themost in your workplace.

CRD’s flexibility and determination topromote awareness and help reduceemployment and housing discriminationthroughout the state. For moreinformation about inviting the CRD toan upcoming event, please contactCRD at (888) 452-4778 or by email at

CRDTraining@ twc.state.tx.us.

FREE Fair Housing Computer-BasedTraining

CRD offers a free Fair HousingOverview Computer-Based Training(CBT) module for housing providers,consumers, realtors and March 2020lenders. This CBT enables participantsto learn about fair housing at theirown pace and location usingpersonal computers.

Meet Us at Upcoming TexasConference for Employers

TWC Commissioner RepresentingEmployers sponsors the TexasConferences for Employers, a seriesof employer seminars held each yearthroughout the state. Employers whoattend the seminars learn about stateand federal employment laws andthe unemployment claim and appealprocess. TWC Commissioner AaronDemerson and his staff assembleexcellent speakers to guide you throughongoing matters of concern to Texasemployers and to answer any questionsyou have regarding your business.Each conference is geared towardsmall business owners, HR managersand assistants, payroll managers andanyone responsible for the hiring andmanaging of employees.

CRD outreach personnel regularlyparticipate in these events by staffingan information booth to provide detailsabout the state’s Equal EmploymentOpportunity

(EEO) and Fair Housing programsand provide technical assistance toconference participants.

Please see the listing of upcoming TCEsand dates below:

Texas Confrence for Employersdates:

Kilgore: May 29, 2020Laredo: June 5, 2020 Beaumont: June 12, 2020Sherman: July 17, 2020

Visit https://twc.texas.gov/texas-conference-employers to register forupcoming TCE’s. For more informationand registration,

http://www.twc.state.tx.us/texas-business-conferences

.

TDHCA Webinar series: Fair Housing Overview: April 2, 2020 This link is for the Fair Housing Overview: https://register.gotowebinar.comregister/3154898388257004556

Reasonable Accommodations: April 8, 2020This is for Reasonable Accommodations: https://register.gotowebinar.com/register/4099999001074728460

Assistance Animals: April 14, 2020 This is for Assistance Animals: https://register.gotowebinar.com/register/7581657546164498956

Texas WorkforceCommissionCivil RightsDivision

Mailing Address:Texas Workforce Commission101 E. 15th StreetGuadalupe CRDAustin, Texas 78778-0001

Physical Address:1215 GuadalupeAustin, Texas 78701-1829

Phone:512-463-2642 or888-452-4778Fax:512-463-2643

Relay Texas:800-735-2989 (TTY)and 711 (Voice)

Copies of this publication (04/2020) have been distributed in compliance with theState Depository Law, and are available for public use through the Texas State Publication

Depository Program at the Texas State Library and other state depository libraries.

For more information or to subscribe to this newsletter, please visit: civilrightsreporter@twc.state.tx.usEqual Opportunity Employer/ Program Auxiliary aids and services are available upon request to individuals with disabilities.

www.texasworkforce.org