Human Rights Commission Awards $25,000 for Unit Owner’s Emotional Distress and $58,000 in Attorneys’ Fees
A recent Human Rights Commission opinion affirmed an award of $25,000 to a unit owner in arrears on her assessments who suffered emotional distress because management did not deliver notices of meetings to her electronically as she requested and did not clear ice outdoors promptly enough for her (instead relying on its snow and ice removal service contractor’s schedule), resulting in her feeling frustrated, stuck, sad, hurt, humiliated, and as if she was not being heard. In re Hemmingway & Crawford Estates Condominium Ass’n, Charge No. 2014CH1810, 2023 WL 6813293 (IHRC Sept. 26, 2023). It also awarded more than $58,000 in attorneys’ fees to her lawyer at the billing rate of $475 per hour. 2023 WL 6813293 at *7.
At the time of filing her charge in January 2014, the complainant had lived in the subject second-floor condominium unit on the South Side of Chicago for 20 years. 2023 WL 6813293 at **2, 3 n.6. There was no elevator in the building. 2023 WL 6813293 at *2. In 2007, she suffered a fall at work and used crutches until 2011. Id. Thereafter, she walked with a cane. Id. At times, she drove a car, and when she was unable to use her car, she took a Pace bus providing paratransit services. The bus stop was 100 feet from her front door. Id.
In March 2013, the complainant requested electronic notices of the board of directors meetings and that her invoices be sent electronically so she could avoid taking two flights of stairs to check her mailbox. 2023 WL 6813293 at *3. The respondents were the condominium association and its management company. The respondents responded to the request that the meeting notices were enclosed in the envelopes with invoices and that the information was also available through the association’s website. Id. The complainant later testified that she was blocked from using the website because she was in arrears on her assessments and, as a result, she missed five meetings. Id. The opinion is silent as to whether she ever read minutes of the meetings but part of the complainant’s claim for emotional distress was that she did not know what was happening in the association as a result of missing meetings.
In December 2013 and January 2014, the complainant requested that snow and ice accumulation around the front door and garage entrance be removed more quickly. Id. She later testified that she was unable to shovel herself or carry salt and would be at risk of falling and was thereby humiliated. The failure to remove snow and ice more timely prevented her from walking to the dumpster or to her transportation. Id. The complainant later testified that since 2015 (a year after the charge was filed), the respondents failed to clear ice about 10 – 15 times. Id. These incidents made her feel sad, hurt, and as if she was not taken seriously. Id. The respondents testified that snow and ice removal was under contract and that the contractor provided services when snowfall hit a certain level based on readings at Midway Airport, which was about three miles away. Id.
In September 2020, a default order was entered against the respondents for failure to comply with discovery orders. 2023 WL 6813293 at *4.
As a result of the default order, under Illinois Department of Human Rights (IDHR) practice, the facts in the complaint were admitted as true resulting in a presumption of liability. 2023 WL 6813293 at *1. However, the complainant still had to prove damages through a preponderance of evidence. Id. The respondents’ answer failed to plead any affirmative defenses, so under IDHR regulations any affirmative defense was barred. Id.
It is a real estate-related civil rights violation under the Illinois Human Rights Act, 775 ILCS 5/1-101, et seq., “to refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” 2023 WL 6813293 at *2. There is similar language in the federal Fair Housing Act, Pub.L. No. 90-284, Title VIII, 82 Stat. 81 (1968), and the Fair Housing Amendments Act of 1988, Pub.L. No. 100-430, 102 Stat. 1619. 2023 WL 6813293 at *2 n.3. Cases under these federal acts are often cited to support Illinois cases, although federal cases are not binding on the Human Rights Commission. Id. Unlike these federal acts and the federal American with Disabilities Act of 1990, Pub.L. No. 101-336, 104 Stat. 327, the Illinois Human Rights Act has a lower standard to define “disability.” 2023 WL 6813293 at *2.
Under the Illinois Act, a “disability” is defined as
a determinable physical or mental characteristic of a person, including but not limited to, a determinable physical or mental characteristic which necessitates the person’s use of a guide, hearing or support dog, the history of such characteristic, or the perception of such characteristic by the person complained against, which may result from disease, injury, congenital condition of birth or functional disorder and which characteristic . . . is unrelated to the person’s ability to acquire, rent or maintain a housing accommodation. Id., citing 775 ILCS 5/1-103(I).
Challenging whether the complainant has a disability is an affirmative defense, therefore, the respondents were unable to challenge whether the complainant was disabled.
The Commission held that the respondents “failed to properly respond or refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling as defined in [775 ILCS 5/3-102.1(C)(2) ].” 2023 WL 6813293 at *4. In an earlier part of the opinion, the Commission characterized the respondents’ answer that the complainant “uses a cane from time to time” as a nonsequitur answer and pleading ruse. 2023 WL 6813293 at *3. Although the respondents knew about the complainant’s use of a cane, they “still denied her requests for accommodations outright without asking her for more information regarding her condition. If a condo manager is skeptical of a resident’s alleged disability or its ability to provide an accommodation, it is incumbent upon the condo management to request documents or open an interactive dialogue.” Id., citing Lee & Associates v. Cisneros, 91 F.3d 892 (7th Cir. 1996).
It should be noted here that although, based on these decades-old opinions, the Commission places the burden on condominium management to request documents or open an interactive dialogue with an accommodation requester regarding his or her disability, this burden contradicts the direction of the U.S. Department of Housing and Urban Development (HUD) in its 19-page notice to housing providers on best practices when asked by persons with disabilities to keep “assistance animals.” HUD, FHEO-2020-01, Assistance Animal Notice (Jan. 28, 2020). See §6.40 of Kenneth Michaels, Jr., Ch. 6, Liability Problems, CONDOMINIUM LAW: DAILY OPERATION CHALLENGES (IICLE®, 2021). Specifically, HUD directs that housing providers should not ask about the nature or extent of the person’s disability and to not ask for documentation.
In its damages analysis, the Commission found that the complainant’s testimony showed she felt confined to her unit and kept from being informed of the board’s meetings. 2023 WL 6813293 at *5. No medical evidence was necessary. It was sufficient to award emotional damages that the complainant testified that she felt frustrated, stuck, sad, hurt, humiliated, and as if she was not being heard. Id. The Commission concluded that $25,000 was a reasonable award for these feelings. Id. The Commission did not address the fact that the complainant was in arrears in paying assessments and shifting the economic burden of supporting her housing to her neighbors.
Regarding civil damages, which are essentially a penalty to deter similar conduct by others, the Commission found that civil damages were appropriate but then awarded $0 in civil damages. The IDHR had recommended the maximum fine of $16,000. Id.
Regarding attorneys’ fees, the Commission awarded the complainant in excess of $58,000 based on almost 124 hours of work at $475 per hour. 2023 WL 6813293 at *7.
For more information about condominium law, see CONDOMINIUM LAW: DAILY OPERATION CHALLENGES (IICLE®, 2021). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.