Patty Judge, LT. GOVERNOR ralph rosenberg
In the spirit of two upcoming civil rights milestones, the
Iowa Civil Rights Commission announces it will be conducting a survey of
“For Iowa, for
our entire country, 2008 will be a significant year for civil rights,” says
Ralph Rosenberg, Director of the Iowa Civil Rights Commission—“We will be
celebrating forty years since the passage of the Fair Housing Act and twenty
years since the amendments of the Act to include disabled persons”—Next year
will also be forty years since the slaying of Rev. Martin Luther King. The federal Fair Housing Act was passed
in 1968, and prohibited discrimination based on race, color, religion, and
national origin in the sale and rental of housing; the Act was amended in 1988
to extend protections to disabled persons in search of housing. Mr. Rosenberg adds, “Testing has proven
an important tool for federal, state, and local agencies to measure compliance
with various civil rights laws, and the Supreme Court has recognized the value
of such undertakings.” The ICRC
will conduct its testing project in the summer of 2007; the target for the study
will be rental apartment complexes built in the
Testing will be conducted on the seven “design and
construction” provisions that were added to the federal Fair Housing Act, and
subsequently to its
The amended Fair Housing Act, supplemented by guidelines set forth by the Department of Housing and Urban Development, states that any of the following omissions will give rise to a discrimination claim when a disabled person is unable to use or access housing facilities:
1. failing to provide at least once accessible building entrance;
2. providing common and public areas that are unusable by, or inaccessible to, disabled persons;
3. installing doors with less than a 32 inch clear opening;
4. failing to provide accessible routes into and through dwelling units;
5. placing environmental controls (i.e., light switches, electrical outlets, thermostats, etc.) lower than 15 inches from the floor or higher than 48 inches from the floor;
6. failing to reinforce bathroom walls for future grab bar installations; or
7. designing and constructing kitchens and bathrooms that are unusable to disabled persons.
The Iowa Legislature has adopted legislation that is substantially equivalent to the federal Fair Housing Act.
Iowans who believe that they or a family member or acquaintance have been denied housing due to inaccessibility, or deprived of the use of inaccessible services are advised to contact the Iowa Civil Rights Commission. A final report, which will summarize and describe the findings of the project, will be available at by the fall of 2007.
ICRC Design and Construction Testing Preliminary Report: see attached
HUD Fair Housing Information: http://www.hud.gov/groups/fairhousing.cfm
HUD Accessibility Guidelines: http://www.hud.gov/offices/fheo/disabilities/fhguidelines/fhefha5.cfm#sect5
Filing Complaints with the ICRC: http://www.state.ia.us/government/crc/file_complaint/
Preliminary Report: Design and Construction Testing
I. Introduction to Fair Housing Design and Construction
The federal Fair Housing Act, which removed race, color, religion, and
national origin from the characteristics that may be legally considered in the
sale or rental of housing, celebrates forty years in 2008. This same year, another civil rights
milestone will celebrate two decades of legal force: in 1988, Congress amended the Fair
Housing Act to extend its anti-discrimination protections to disabled Americans
in search of housing. Under the
belief that building an apartment with narrow door openings and high-mounted
thermostats was the same as placing a sign outside that said “No Handicapped
People Allowed”, Congress included design and construction requirements in the
amendments. In response, the State of
II. Design and Construction in the Law
A. Black-Letter Law
Chapter 216.8A(3) of the Iowa Code, whose language resembles that of the federal Fair Housing Act, reads:
c. For the purposes of this subsection only, discrimination includes any of the following circumstances:
. . .
(3) In connection with the design and construction of covered multifamily dwellings for first occupancy after January 1, 1992, a failure to design and construct those dwellings in a manner that meets the following requirements:
(a) The public use and common use portions of the dwellings are readily accessible to and usable by persons with disabilities.
(b) All doors designed to allow passage into and within all premises within the dwellings are sufficiently wide to allow passage by persons with disabilities in wheelchairs.
(c) All premises within the dwellings contain the following features of adaptive design:
(i) An accessible route into and through the dwelling.
(ii) Light switches, electrical outlets, thermostats, and other environmental controls in accessible locations.
(iii) Reinforcements in bathroom walls to allow later installation of grab bars.
(iv) Usable kitchens and bathrooms so that a person in a wheelchair can maneuver about the space.
In addition to these six requirements, administrative law provides a final design and construction requirement: at least one entrance to the building must be located on an accessible route. “Covered multifamily dwelling”, the variety of building being addressed by this law, is defined in chapter 216.2 of the Code as either “[a] building consisting of four or more dwelling units if the building has one or more elevators” or “[t]he ground floor units of a building consisting of four or more dwelling units”. In other words, if an applicable building has an elevator, all units must be accessible according to the seven guidelines; if an applicable building does not have an elevator to service upper floors, only the units on the ground floor need be compliant with the design and construction provisions.
B. HUD Guidelines
To assist designers, developers, and builders of covered multifamily dwellings, the Department of Housing and Urban Development devised “Accessibility Guidelines” to elaborate on the design and construction provisions provided in the 1988 Fair Housing Act amendments. Summaries of the Guidelines are as follows:
While these guidelines were designed to serve as mere recommendations for complying with the Act, they have been consistently recognized in courts as minimum standards for meeting the Act’s design and construction requirements. With widespread acceptance of the Guidelines, therefore, the barriers that state agencies and private entities have encountered in design and construction cases have involved statutes of limitations and determinations of proper parties.
III. Our Testing Model
A. Purpose of Testing
Thousands of Iowans depend on the features of accessible design and
construction for more convenient living and for full use of their homes’
features. Accordingly, it is
important to understand whether the provisions of state and federal law
regulating fair housing are being followed in the construction of new covered
multifamily dwellings. Little is
known about the adherence to or disregard for the aforementioned accessibility
B. Sites for Testing
This design and construction survey will be conduct in mid-July 2007 in
C. Requirements Being Tested
Once complexes have been selected, two testers will visit the locations to conduct the design and construction tests. Though it would be impractical to test for reinforced bathroom walls for grab bars, the remaining six requirements will be tested in some form in each unit. The width of doors and passageways and the locations of environmental controls will be measured during the course of the apartment tour. The accessibility of building approaches, common use facilities, kitchens, and bathrooms will be reported from observations, as precise measurements cannot be taken without notice—a general sense of accessibility, however, is attainable. Testers will make written and mental notes during each viewing on the design and construction requirements being tested. Immediately following each unit tour, testers will complete a thorough site de-briefing form, which will be used to determine whether the complex complies with federal and state fair housing law. As described above, some of the information collected will be through objective measurement, whereas other information reported will be based upon observation of the site; the results of the survey will be evaluated accordingly.
IV. Future Steps in the Project
The findings that result from our testing project will be compiled and reported to the public as soon as practicable in a Final Report, which will be posted on the Iowa Civil Rights Commission website. The results of our testing will be presented under each of the design and construction requirements in order to better understand the level of compliance with each provision. Again, the purpose of this study is to advise the Commission and other interested parties on whether covered multifamily dwellings are being designed and constructed with accessibility in mind. Awareness of the effectiveness of Fair Housing legislation will assist the Commission in directing its enforcement efforts and fulfilling its mission to “enforce civil rights laws” and “increase public awareness of civil rights”.
 See Robert G. Schwemm, Barriers to Accessible Housing: Enforcement Issues in “Design and Construction” Cases Under the Fair Housing Act, 40 U. Rich. L. Rev. 753, 759 (2006).
 Cf. 42 U.S.C. § 3604(f)(7) (2006). This provision provides what is arguably the most substantive difference between state and federal law, as the federal law applies to covered multifamily dwellings for first occupancy after March 13, 1991. See id.
 Cf. 42 U.S.C. § 3604(f)(3)(C)(i) (2006).
 Cf. 42 U.S.C. § 3604(f)(3)(C)(ii) (2006).
 Cf. 42 U.S.C. § 3604(f)(3)(C)(iii)(I) (2006).
 Cf. 42 U.S.C. § 3604(f)(3)(C)(iii)(II) (2006).
 Cf. 42 U.S.C. § 3604(f)(3)(C)(iii)(III) (2006).
 Cf. 42 U.S.C. § 3604(f)(3)(C)(iii)(IV) (2006).
 24 C.F.R. § 100.205(a) (2003).
 Dep’t of Hous. & Urban Dev., Fair Housing Accessibility Guidelines Cont’d, (July 12, 2006), http://www.hud.gov/offices/fheo/disabilities/fhguidelines/fhefha5.cfm#sect5.
 The Guidelines contains exceptions for this requirement if there are features of the terrain and/or site that are unique enough to make an accessible route impractical; the Guidelines provide tests and further instructs for determining site impracticality. Dep’t of Hous. & Urban Dev., Fair Housing Accessibility Guidelines Cont’d, (July 12, 2006), http://www.hud.gov/offices/fheo/disabilities/fhguidelines/fhefha5.cfm#sect5.
 Dep’t of Hous. & Urban Dev., Fair Housing Accessibility Guidelines Cont’d, (July 12, 2006), http://www.hud.gov/offices/fheo/disabilities/fhguidelines/fhefha5.cfm#sect5. The Department of Housing and Urban Development offers elaborate instructions and illustrations for designing and constructing accessible homes in Dep’t of Hous. & Urban Dev., Fair Housing Act Design Manual (rev. ed. 1998), available at http://www.huduser.org/Publications/PDF/fairhousing/
 See, e.g., United States v. Quality Built Constr., Inc., 309 F. Supp. 2d 767 (E.D.N.C. 2003) (Doorways with clear openings of twenty-two, twenty-eight, and thirty inches, as opposed to the thirty-two inches required by the Guidelines, violated the Act.); Fair Hous. Council, Inc. v. Village of Olde St. Andrews, Inc., 210 Fed. Appx. 469 (6th Cir. 2006) (The Guidelines call for environmental controls to be placed between fifteen and forty eight inches from the floor; in this case, outlets located ten to twelve inches from the floor and thermostats located above fifty-eight inches from the floor violated the Act.).
 See Robert G. Schwemm, Barriers to Accessible Housing: Enforcement Issues in “Design and Construction” Cases Under the Fair Housing Act, 40 U. Rich. L. Rev. 753 (2006).
 Importantly, while rental apartments serve as the focus of this study, the term “covered multifamily dwellings” does not limit application of fair housing laws to such units.
 Iowa Civil Rights Comm’n, Welcome to the Iowa Civil Rights Commission Website, http://www.state.ia.us/government/crc/index.html (last visited June 11, 2007).