By: Christopher R. Moore, Esq.
Though not as generally applicable as the Fair Housing Act (FHA), the Americans With Disabilities Act (ADA), 42 U.S.C.A. §§ 12101 et seq., impacts the operations of homeowners associations with common elements open to the general public.
The law was enacted in 1990 to prohibit discrimination against disabled persons in employment, transportation, public accommodations, communications, and access to government programs and services. Title III of the ADA, is administered by the United States Department of Justice Civil Rights Division .
For HOA’s, “public accommodations” is the most relevant activity, though a large association may also be ADA-regulated as an employer. The ADA lists 12 facilities qualifying as “public accommodations.” 42 U.S.C. §§ 12181(7). The public accommodations most commonly offered by homeowners’ associations are recreational facilities, including pools, gyms, and golf courses.
An HOA operating a restaurant, bar, or daycare facility could also potentially be covered under the ADA. Importantly, to be a “public accommodation,” the general public must have access to the facility – not just members. If only members can use the association pool, for instance, it is not a public accommodation, and the ADA is therefore not implicated.
If an association constructs a new public accommodation, it must fully comply with the Americans With Disabilities Act Accessibility Guidelines published by the Department of Justice in the Federal Register. Facilities built before 1992 must be modified for compliance if “easily accomplished without much difficulty or expense.” See 42 U.S.C. § 12182(b)(2).
So, if an association builds a new pool or rec center and plans to allow admission to the general public, the facilities must be built according to the DOJ’s published specifications, including, for example, a compliant means of access.
A “disability” under the ADA definition is any “physical or mental impairment that substantially limits one or more major life activities…” 42 USC §12102.
The EEOC cites deafness, blindness, mobility impairments, severe diseases, depression, bipolar disorder, and PTSD as examples of covered disabilities. Disabilities which can lead to illegal conduct or harm to others – such as kleptomania, pedophilia, and voyeurism – are not protected by the ADA.
As with the FHA, service animals are within the purview of the ADA. However, the scope is much more limited – only dogs with specialized training qualify. 28 CFR §35.104.
If an association operates a restaurant and generally does not permit animals, it would have to modify the policy to allow a disabled person who relies on a service dog to access the restaurant. 28 CFR § 35.136(a). The association could only ask that the dog be removed from the restaurant if it is out of control or not housebroken. Id.
An ADA-covered association may deny a request for reasonable accommodation relating to a service animal only if the dog (or miniature horse in very rare situations) poses a “direct threat to the health or safety of others … [or] substantial physical damage to the property of others … that cannot be reduced or eliminated by another reasonable accommodation.” See HUD FEO 2013-01.
As an employer, an HOA is covered under the ADA if it has 15 or more employees. 42 U.S.C. §12111(5)(A). If the statute applies, an association is prohibited from discriminating against any disabled person related to employment. 42 USC §12112(a). Prohibited discrimination could occur in firing, hiring, or promotion decisions, or as a result of harassment or segregation from other employees.
