Opening Acts Newsletter: May 29, 2013

FHJC Investigation Uncovers Discrimination in Senior Living Residences

On May 29, 2013, the Fair Housing Justice Center (FHJC) filed a lawsuit in federal court (S.D.N.Y.) alleging that the owners and managers of five independent senior living residences with more than 600 apartments discriminate on the basis of disability, religion, and race. The FHJC alleges that the Esplanade Residences located in Staten Island, Manhattan, Westchester County, and Rockland County maintain policies and engage in practices that violate local, state, and federal fair housing laws. Named as defendants are Esplanade Venture Partnership; Esplanade of White Plains Venture Partnership; Palisades Gardens Group, LLC; Esplanade Chestnut, LLC; and Esplanade Staten Island, LLC.

In September 2012, the FHJC received a complaint based on a letter to the editor which appeared in the Staten Island Advance (www.SILive.com). The letter accused the Staten Island Esplanade of refusing to rent to persons who use wheelchairs. Rather than deny the allegation, an agent for the Esplanade wrote: “The Esplanade is a community catering to active independent senior residents. The Esplanade is not an assisted living facility. As such, our residents are ambulatory and do not require the use of wheelchairs.

In response to this complaint, the FHJC commenced an undercover testing investigation and sent matched pairs of testers to Esplanade residences over four months. At each of the five locations, one tester inquired about housing for an elderly relative with disabilities who uses a wheelchair and the other tester inquired about housing for a non-disabled elderly relative.

Some examples of the alleged discriminatory conduct cited in the complaint include:

• The Manhattan Esplanade refuses to rent to prospective residents who use wheelchairs. An agent for the Manhattan Esplanade told a tester “you have to come in vertical.” The same agent explained that if existing residents start using a wheelchair, “We don’t even allow wheelchairs in the dining room.” According to the agent, residents who use wheelchairs have to eat in a separate dining room with other wheelchair users and their aides. When the tester asked why people who use wheelchairs need to be separated, the agent stated because “it depresses the elderly” to see people using wheelchairs.

• At the Esplanade at Palisades, an agent told a tester that “power” wheelchairs are not allowed.

• At the White Plains Esplanade, when a tester told an agent that his relative used a manual wheelchair, the agent stated that would be acceptable as long as she was “self-propelled.”

• At the Esplanade at Chestnut Ridge, an agent stated that, even though there was an elevator to the second floor, wheelchair users are only allowed to rent apartments on the first floor and that existing residents were given a preference for first floor apartments. The agent admitted that with these policies, more apartments would be available to the tester’s relative if she did not use a wheelchair. The agent later explained that when “independent” seniors come into the residence and see people using wheelchairs or walkers, they are immediately “put off.”

• At the Esplanade Staten Island, a tester was informed that motorized wheelchairs are not allowed.

• To rent at any of the Esplanade residences, applicants are subjected to intrusive and discriminatory medical inquiries and required to obtain a physician’s report and disclose any mental or physical disabilities as part of the rental application process.

• At several Esplanade residences, agents asked testers about their relative’s religion. All Esplanade residences use an application form that requests the applicant’s religion and whether an applicant is “practicing.” In a newspaper article, an Esplanade employee referred to life at the residences as “the Jewish hotel experience.

• Esplanade brochures and websites use only white human models to depict residents.

According to national projections by the U.S. Census, the population age 65 and older is expected to more than double between 2012 and 2060, from 43.1 million to 92 million. FHJC Executive Director Fred Freiberg, stated, “In anticipation of this dramatic demographic change, the FHJC will work to ensure that housing opportunities are available to older persons on a non-discriminatory basis.” Freiberg issued a warning to other operators of senior housing and independent living residences. “There should be no confusion. Fair housing rights extend to older persons of all races and religions, as well as to people with disabilities,” Freiberg added.

Funding for the testing investigation conducted by the FHJC was provided under a grant received from the Fair Housing Initiatives Program of the U.S. Department of Housing & Urban Development (HUD).

The lawsuit seeks injunctive relief to stop the discrimination and ensure future compliance with fair housing laws, in addition to damages, costs, and attorney’s fees. The FHJC is represented by Diane L. Houk, of Emery Celli Brinckerhoff & Abady, LLP, and Kevin M. Cremin and Nahid Sorooshyari of MFY Legal Services, Inc.

Tenants Resolve Disability Discrimination Lawsuit

NYCHA to Modify Building Entrance & Pay $70,000 to Settle Case

Federal District Judge William H. Pauley approved a settlement in May 2013 between three public housing tenants with disabilities and the New York City Housing Authority (NYCHA). The settlement resolves a lawsuit filed in August 2012 by tenants with mobility impairments who reside at the Fulton Houses located in the Chelsea area of Manhattan. The lawsuit alleged that the plaintiffs were discriminated against based on disability in violation of the Americans with Disabilities Act (ADA), the Rehabilitation Act and the New York City Human Rights Law.

In the complaint, plaintiffs asserted that the building they reside in lacked an accessible entrance. The complaint alleged that a ramp leading to the entrance of the building was too steep and dangerous and that it prevented tenants with disabilities from safely leaving or entering the building. The plaintiffs alleged that repeated requests were made for a reasonable modification of the entrance over many years and NYCHA was largely unresponsive.

The Fair Housing Justice Center (FHJC) investigated a complaint received from one of the tenants by obtaining a report from an FHJC cooperating architect. After documenting the inaccessible entrance to the building, the FHJC assisted the tenant to obtain legal counsel.

The settlement requires that NYCHA create and maintain an accessible ramp at the front entrance of the building at 418 W. 17th Street within 120 days of the order and an architectural design expert retained by the plaintiffs will evaluate the ramp to confirm compliance. Also, the agreement provides that the staff at NYCHA’s Fulton Houses development will participate in disability discrimination training. Finally, NYCHA agreed to pay a total of $70,000 to cover damages for three tenants and attorney’s fees. The tenants were represented by Kevin M. Cremin and Orier Okumakpeyi with MFY Legal Services, Inc.

Our clients are thrilled that, after years of complaints, they’ll have an accessible entrance to their home,” said Orier Okumakpeyi, Senior Attorney at MFY Legal Services, Inc. “Of course, they should not have had to file a lawsuit to get NYCHA to take action.” FHJC Executive Director Fred Freiberg agreed and stated, “Public housing tenants with disabilities have every right to expect that housing will be accessible to them. Furthermore, housing authorities have a duty to be responsive when a request for a reasonable accommodation or modification is made in accordance with civil rights laws.”