Multiple Chemical Sensitivity Creates Newest Trigger for Fair Housing Accommodation Requests

Published on: March 20, 2009

Multiple Chemical Sensitivity – MCS – though still a relatively new and often questioned medical diagnosis, is surfacing with increasing frequency in requests from apartment tenants and condominium owners seeking “accommodations” under fair housing laws.

In broad terms, MCS describes acute sensitivity to a broad range of common substances, both man-made and natural – from paints, pesticides and cleansers to mold, fertilizers, and trees.  In practical terms, MCS brings medical discomfort or distress to its sufferers and headaches to the landlords and homeowner associations asked to accommodate them by making changes in their buildings, maintenance practices, or both. 

As with any request for a fair housing accommodation, the base line question for MCS is whether it represents a “disability’” under state or federal fair housing laws.  The answer is unclear, largely because only a few courts have dealt directly with the question and their responses have varied. 

One Clear Answer

The Department of Housing and Urban Development (HUD) has provided the clearest and most consistent response. A1992 legal memorandum written by an agency associate counsel concluded that MCS and “environmental illness” are legitimate and diagnosable medical conditions that meet the statutory definition of disabilities that “substantially limit a major life activity.”  Unlike common allergies, which do not rise to that level, the HUD memo explained, an MCS reaction “causes us to reach not for a Kleenex but for the telephone to summon an ambulance.” 

Citing several decisions by courts and regulatory agencies identifying MCS as a disability protected by various state and federal employment laws, the memo argued that the legislative history of the Fair Housing Act indicates “Congress intended the definition of handicap [under that statute] to be fully as broad.” 

Court decisions affirming HUD’s position are scarce.  In fact, courts in many other jurisdictions have rejected as inadequate medical testimony diagnosing MCS as an illness.  Plaintiffs that have managed to clear that barrier have been blocked by another one:  The difficulty of proving that specific substances in a residence or a workplace were responsible for triggering the adverse medical reactions they suffered. 

A few court decisions have favored plaintiffs seeking MCS-related housing accommodations.  Most notable among them is a Pennsylvania District Court ruling (Lincoln Realty Management v. PA Human Rights Commission) in a dispute between a landlord and a tenant over accommodations the tenant sought to address her hypersensitivity to pesticides.  In a blistering decision criticizing the landlord’s “insensitivity” and refusal to consider the “reasonable” accommodations the tenant had requested, the Commission approved a laundry-list of accommodations, ordering the landlord to: 

  • Allow the tenant to install a kitchen ceiling fan and washer and dryer, at the tenant’s expense.
  • Install an exhaust fan in the laundry room, at the landlord’s expense
  • Paint or wallpaper the hallways using less toxic substances than the landlord typically used, and consult with the tenant on acceptable alternatives.
  • Provide at least two weeks prior notice to the tenant of all pesticide and lawn treatments and painting plans.
  • Renew the tenant’s lease (which the landlord had refused to do). 

Partial Reversal

On appeal, the Pennsylvania trial court rejected some of the accommodations, noting that they went beyond those the tenant herself had sought.  (“It is unreasonable to expect Lincoln to make accommodations which Atkinson did not formally and reasonably request,” the court noted.)  However, the court approved the modifications the tenant had agreed to make at her expense as well as the prior notice requirements, and directed the Human Rights Commission to consider more carefully whether the landlord was justified in rejecting some of the other requests. 

Fair Housing litigation is always fact-specific, but this court’s comments are nonetheless instructive, in a cautionary way, for other rental property managers and community association boards confronting accommodation requests.  The court noted that instead of substituting less toxic paints and pesticides, as the tenant had requested, Lincoln Properties (the landlord in this case) had simply declined to do any painting or pesticide treatments in the tenant’s building.  This resulted, predictably, in complaints from other tenants that Lincoln had cited as evidence that the tenant’s requests were unreasonable and unfairly burdened other residents.  The court didn’t buy the argument.

Complaints from other tenants, the court noted, did not result from the “reasonable accommodations” the tenant has sought but from Lincoln’s unreasonable response to them.  “[Lincoln’s] policy amounted to sitting back and doing nothing,” the court said, adding, “Lincoln did not work with [the tenant] on making reasonable accommodations, which she did propose, as contemplated by the federal [Fair Housing] regulations.” 

A Virginia court came down even harder on a community association for similarly failing to demonstrate any effort to accommodate an owner’s requests for a “pesticide-free zone” around the owner’s townhouse to accommodate that individual’s sensitivity to toxic substances.  Under a settlement reached in this case (Levins v. County Creek Association), the association agreed to implement special pesticide management procedures, provide advance notice of chemical treatments, and pay the tenant’s legal expenses plus $40,000 in damages.

Proceed with Caution

As noted earlier, the courts have not dealt extensively with MCS claims, and those that have, for the most part, have rejected medical testimony diagnosing MCS as a condition requiring treatment and warranting accommodations.  Plaintiffs, as a result, rarely prevailed in court in their efforts to win MCS-related housing or employment accommodations.

This is not by any means to suggest that landlords and homeowner associations should downplay or ignore MCS accommodation requests.  On the contrary, it is essential to take all accommodation requests seriously.  While the judicial winds may currently favor landlords and associations in MCS disputes, those winds could shift at any time and in any court decision. 

Even more important, most fair housing disputes are not fought in the courts.  Instead, they are often resolved at the agency level.  Likewise, the state agencies overseeing fair housing and civil rights regulations tend to favor individual owners and tenants over community associations and landlords. So while an association might reasonably hope to overturn an adverse agency decision in court, legal outcomes are never predictable.  Legal battles, on the other hand, are predictably and invariably expensive and time consuming.  It is almost always in the interests of associations to avoid litigation if they can. With that goal in mind, we advise our clients to handle all accommodation requests carefully, sensitively, and on a case-by-case basis.  Specifically, we suggest the following:

The very mention of the word “accommodation” should set loud warning bells jangling in the board room or the manager’s office, triggering a response that should be outlined in a written association policy.   That response should be sympathetic, business-like and non-judgmental.  People are most likely to litigate when they feel they have been treated unfairly, treated unreasonably, or ignored.  Starting the moment an accommodation is requested, the board should establish and maintain an open dialogue with the owner.  

Document everything, starting with the owner’s accommodation request and including the association’s response and alternative accommodations proposed, if any.  Everything should be in writing.  This documentation will be essential should the association have to defend its handling of the accommodation request in an agency administrative hearing or in court. 

The association’s policy should require owners seeking accommodations to submit a letter from a professional establishing that they are disabled and explaining the accommodation(s) required for it.  The explanation should demonstrate the “nexus” or clear relationship between the medical condition and the accommodation sought.   In the MCS arena, accommodations will most likely target chemicals or practices the owner wants the association to eliminate or change.  With that prospect in mind, as a general practice, associations should use only chemicals that are “common” and necessary in common areas and they should be open to substituting less toxic alternatives that residents or suppliers recommend.

Workable accommodations will not necessarily have to be either complicated or costly.  In fact, many accommodations will be obvious and easy to achieve.  For example, when a tenant complained of acute sensitivity to mulch, the landlord a colleague represented simply replaced the mulch around her townhouse with rocks.  One of the easiest accommodations associations and landlords can offer and should propose is advance notice of painting plans and chemical applications (fertilizers, pesticides, etc.) so residents sensitive to those substances can take steps to limit their exposure — a reasonable concession that associations can easily expand to include ample notice of all chemical applications for residents who request it. 

Don’t just say no, but you don’t always have to say yes, either.  Association boards should try to accommodate reasonable requests from owners suffering from MCS or other disabilities, but the operative word is “reasonable” and all accommodation requests do not meet that definition.  Courts draw this line differently and not always where associations might want to see it, but there are limits to how far landlords and community associations must go to meet the needs of individual tenants or owners seeking accommodations.  One example:  When a tenant suffering from chemical sensitivity demanded the eviction of a neighbor whose cleaning products triggered an adverse reaction, the Sixth Circuit Court of Appeals refused, concluding in a 1996 decision (Temple v. Gunsalus): “As a matter of law, the neighbor’s rights did not have to be sacrificed on the altar of reasonable accommodation.”

Drawing Reasonable Lines

A landlord a colleague represented became understandably nervous when a prospective tenant suffering from MCS submitted a three-page list of accommodation demands along with her rental application.  Not only were some of the demands (ripping up the lawns, importing special marble tile from Italy, etc.), outrageous, but the list kept expanding and changing during the negotiations.  Equally clear was the administrative cost that this tenant represented.  It was clear there was no way he could ever satisfy her, and she hadn’t moved in yet.  But rejecting the application outright risked a housing discrimination complaint. So the attorney filed a motion asking a judge to determine the tenant’s legitimate needs and specify the landlord’s rights and responsibilities.  The attorney also asked the court to assign a mediator to see if we could hammer out an agreement.  After several attempts, and after the tenant refused to come to court to discuss the matter, the court confirmed that the landlord did not need to make any accommodations.  The potential tenant then decided not to proceed with her rental application.

The story does not end there, however.  Several months later, the manager of another apartment building called this attorney, complaining frantically that he had already spent $28,000 on accommodations demanded by a new tenant and was still receiving a steady and seemingly endless stream of demands.  The tenant my colleague had encountered at the other property had shifted her application and demands to this one, now demanding, among other things, that the landlord remove all mold inside and outside the building and eliminate all the trees on the property.  This battle is still ongoing.  However, by following the proactive approach outlined above, asking a court to intervene and clarify rights and responsibilities on both sides, the landlord has now been able to stop merely granting every demand the tenant makes, and the tenant now understands that only required accommodations will be granted.  

The lesson here is:  Negotiation is always the first choice and litigation the last alternative.  But associations can’t simply roll over in the face of unreasonable and unending accommodation demands.  Sometimes a proactive legal response is needed.  The law requires landlords and community associations to respond reasonably to accommodation requests, but it also expects the individuals seeking accommodations to be reasonable as well.  

Multiple Chemical Sensitivity – MCS – though still a relatively new and often questioned medical diagnosis, is surfacing with increasing frequency in requests from apartment tenants and condominium owners seeking “accommodations” under fair housing laws.

In broad terms, MCS describes acute sensitivity to a broad range of common substances, both man-made and natural – from paints, pesticides and cleansers to mold, fertilizers, and trees.  In practical terms, MCS brings medical discomfort or distress to its sufferers and headaches to the landlords and homeowner associations asked to accommodate them by making changes in their buildings, maintenance practices, or both. 

As with any request for a fair housing accommodation, the base line question for MCS is whether it represents a “disability’” under state or federal fair housing laws.  The answer is unclear, largely because only a few courts have dealt directly with the question and their responses have varied. 

One Clear Answer

The Department of Housing and Urban Development (HUD) has provided the clearest and most consistent response. A1992 legal memorandum written by an agency associate counsel concluded that MCS and “environmental illness” are legitimate and diagnosable medical conditions that meet the statutory definition of disabilities that “substantially limit a major life activity.”  Unlike common allergies, which do not rise to that level, the HUD memo explained, an MCS reaction “causes us to reach not for a Kleenex but for the telephone to summon an ambulance.” 

Citing several decisions by courts and regulatory agencies identifying MCS as a disability protected by various state and federal employment laws, the memo argued that the legislative history of the Fair Housing Act indicates “Congress intended the definition of handicap [under that statute] to be fully as broad.” 

Court decisions affirming HUD’s position are scarce.  In fact, courts in many other jurisdictions have rejected as inadequate medical testimony diagnosing MCS as an illness.  Plaintiffs that have managed to clear that barrier have been blocked by another one:  The difficulty of proving that specific substances in a residence or a workplace were responsible for triggering the adverse medical reactions they suffered. 

A few court decisions have favored plaintiffs seeking MCS-related housing accommodations.  Most notable among them is a Pennsylvania District Court ruling (Lincoln Realty Management v. PA Human Rights Commission) in a dispute between a landlord and a tenant over accommodations the tenant sought to address her hypersensitivity to pesticides.  In a blistering decision criticizing the landlord’s “insensitivity” and refusal to consider the “reasonable” accommodations the tenant had requested, the Commission approved a laundry-list of accommodations, ordering the landlord to: 

  • Allow the tenant to install a kitchen ceiling fan and washer and dryer, at the tenant’s expense.
  • Install an exhaust fan in the laundry room, at the landlord’s expense
  • Paint or wallpaper the hallways using less toxic substances than the landlord typically used, and consult with the tenant on acceptable alternatives.
  • Provide at least two weeks prior notice to the tenant of all pesticide and lawn treatments and painting plans.
  • Renew the tenant’s lease (which the landlord had refused to do). 

Partial Reversal

On appeal, the Pennsylvania trial court rejected some of the accommodations, noting that they went beyond those the tenant herself had sought.  (“It is unreasonable to expect Lincoln to make accommodations which Atkinson did not formally and reasonably request,” the court noted.)  However, the court approved the modifications the tenant had agreed to make at her expense as well as the prior notice requirements, and directed the Human Rights Commission to consider more carefully whether the landlord was justified in rejecting some of the other requests. 

Fair Housing litigation is always fact-specific, but this court’s comments are nonetheless instructive, in a cautionary way, for other rental property managers and community association boards confronting accommodation requests.  The court noted that instead of substituting less toxic paints and pesticides, as the tenant had requested, Lincoln Properties (the landlord in this case) had simply declined to do any painting or pesticide treatments in the tenant’s building.  This resulted, predictably, in complaints from other tenants that Lincoln had cited as evidence that the tenant’s requests were unreasonable and unfairly burdened other residents.  The court didn’t buy the argument.

Complaints from other tenants, the court noted, did not result from the “reasonable accommodations” the tenant has sought but from Lincoln’s unreasonable response to them.  “[Lincoln’s] policy amounted to sitting back and doing nothing,” the court said, adding, “Lincoln did not work with [the tenant] on making reasonable accommodations, which she did propose, as contemplated by the federal [Fair Housing] regulations.” 

A Virginia court came down even harder on a community association for similarly failing to demonstrate any effort to accommodate an owner’s requests for a “pesticide-free zone” around the owner’s townhouse to accommodate that individual’s sensitivity to toxic substances.  Under a settlement reached in this case (Levins v. County Creek Association), the association agreed to implement special pesticide management procedures, provide advance notice of chemical treatments, and pay the tenant’s legal expenses plus $40,000 in damages.

Proceed with Caution

As noted earlier, the courts have not dealt extensively with MCS claims, and those that have, for the most part, have rejected medical testimony diagnosing MCS as a condition requiring treatment and warranting accommodations.  Plaintiffs, as a result, rarely prevailed in court in their efforts to win MCS-related housing or employment accommodations.

This is not by any means to suggest that landlords and homeowner associations should downplay or ignore MCS accommodation requests.  On the contrary, it is essential to take all accommodation requests seriously.  While the judicial winds may currently favor landlords and associations in MCS disputes, those winds could shift at any time and in any court decision. 

Even more important, most fair housing disputes are not fought in the courts.  Instead, they are often resolved at the agency level.  Likewise, the state agencies overseeing fair housing and civil rights regulations tend to favor individual owners and tenants over community associations and landlords. So while an association might reasonably hope to overturn an adverse agency decision in court, legal outcomes are never predictable.  Legal battles, on the other hand, are predictably and invariably expensive and time consuming.  It is almost always in the interests of associations to avoid litigation if they can. With that goal in mind, we advise our clients to handle all accommodation requests carefully, sensitively, and on a case-by-case basis.  Specifically, we suggest the following:

The very mention of the word “accommodation” should set loud warning bells jangling in the board room or the manager’s office, triggering a response that should be outlined in a written association policy.   That response should be sympathetic, business-like and non-judgmental.  People are most likely to litigate when they feel they have been treated unfairly, treated unreasonably, or ignored.  Starting the moment an accommodation is requested, the board should establish and maintain an open dialogue with the owner.  

Document everything, starting with the owner’s accommodation request and including the association’s response and alternative accommodations proposed, if any.  Everything should be in writing.  This documentation will be essential should the association have to defend its handling of the accommodation request in an agency administrative hearing or in court. 

The association’s policy should require owners seeking accommodations to submit a letter from a professional establishing that they are disabled and explaining the accommodation(s) required for it.  The explanation should demonstrate the “nexus” or clear relationship between the medical condition and the accommodation sought.   In the MCS arena, accommodations will most likely target chemicals or practices the owner wants the association to eliminate or change.  With that prospect in mind, as a general practice, associations should use only chemicals that are “common” and necessary in common areas and they should be open to substituting less toxic alternatives that residents or suppliers recommend.

Workable accommodations will not necessarily have to be either complicated or costly.  In fact, many accommodations will be obvious and easy to achieve.  For example, when a tenant complained of acute sensitivity to mulch, the landlord a colleague represented simply replaced the mulch around her townhouse with rocks.  One of the easiest accommodations associations and landlords can offer and should propose is advance notice of painting plans and chemical applications (fertilizers, pesticides, etc.) so residents sensitive to those substances can take steps to limit their exposure — a reasonable concession that associations can easily expand to include ample notice of all chemical applications for residents who request it. 

Drawing Reasonable Lines

A landlord a colleague represented became understandably nervous when a prospective tenant suffering from MCS submitted a three-page list of accommodation demands along with her rental application.  Not only were some of the demands (ripping up the lawns, importing special marble tile from Italy, etc.), outrageous, but the list kept expanding and changing during the negotiations.  Equally clear was the administrative cost that this tenant represented.  It was clear there was no way he could ever satisfy her, and she hadn’t moved in yet.  But rejecting the application outright risked a housing discrimination complaint. So the attorney filed a motion asking a judge to determine the tenant’s legitimate needs and specify the landlord’s rights and responsibilities.  The attorney also asked the court to assign a mediator to see if we could hammer out an agreement.  After several attempts, and after the tenant refused to come to court to discuss the matter, the court confirmed that the landlord did not need to make any accommodations.  The potential tenant then decided not to proceed with her rental application.

The story does not end there, however.  Several months later, the manager of another apartment building called this attorney, complaining frantically that he had already spent $28,000 on accommodations demanded by a new tenant and was still receiving a steady and seemingly endless stream of demands.  The tenant my colleague had encountered at the other property had shifted her application and demands to this one, now demanding, among other things, that the landlord remove all mold inside and outside the building and eliminate all the trees on the property.  This battle is still ongoing.  However, by following the proactive approach outlined above, asking a court to intervene and clarify rights and responsibilities on both sides, the landlord has now been able to stop merely granting every demand the tenant makes, and the tenant now understands that only required accommodations will be granted.

Negotiation is always the first choice and litigation the last alternative.  But associations can’t simply roll over in the face of unreasonable and unending accommodation demands.  Sometimes a proactive legal response is needed.  The law requires landlords and community associations to respond reasonably to accommodation requests, but it also expects the individuals seeking accommodations to be reasonable as well.