“Disability” and “Handicap” are not the same, and it matters

wheelchair-question-markMany lawyers and governmental entities believe that anyone who is “disabled” for purposes of the Americans with Disabilities Act (ADA)  must also be handicapped for purposes of the Fair Housing Act (FHA). This used to be true, but may not be anymore. The difference between a disability and a handicap has important practical implications for multi-family communities and others who are subject to the accessibility provisions of the FHA.

Until 2008 the courts looked at the very similar definitions of “disability” and “handicap” in the ADA and FHA to conclude that to be disabled meant to be handicapped and vice versa. Anyone protected by the ADA was protected by the FHA. Then, in 2008, Congress passed the Americans with Disabilities Amendments Act. The ADAA was intended to overrule earlier decisions like  Toyota Motor Manufacturing, Kentucky, Inc. v. Williamsthat restricted the meaning of disability by holding that to be “substantially limited” in a major life activity required a severe restriction. Consistent with the ADAA courts now apply a much more inclusive definition of “disability” than they did before 2008 in ADA cases.

Congress has never  amended the FHA or its definition of “handicap,” which remains the same as it was back in 2008. The logical conclusion, as explained in Ajit Bhogaita v. Altamonte Heights Condominium Assn., Inc.,  2012 WL 6562766 (M.D. Fla. 2012) is that the FHA definition of “handicap” remains narrow despite the ADAA. Considering a claimant with Post traumatic stress disorder the Court found that there was a fact question concerning the plaintiff’s handicap because the affected “major life activity” was the ability to work other than from home, and he had a history of being able to hold a job without a therapy animal. This was in conflict with medical testimony that he could not hold a job outside the home. Other cases have recognized the question as to whether every “disability” is a “handicap” without reaching a conclusion. See, Brooker v. Altoona Hous. Auth.,  2013 WL 2896814 (W.D. Pa. 2013) and cases cited therein.

There are plenty of post 2008 cases in which the courts treat “disabled” and “handicapped” as equivalent without giving any consideration at all to the ADAA, and frequently citing as authority pre-2008 cases discussing why “disability” and “handicap” are equivalent. Courts and government agencies have also almost entirely abandoned the use of the work “handicap” because “disability” is considered preferable by many disability rights organizations. This makes it hard in many cases to know whether the author of an article or guidance actually understands that there is a legal difference between the two words. In any case, I have not found any authority holding  that the ADAA expansion of disability applies to handicap as well.

On the other hand, for apartment managers and owners the difference between “handicap” and “disability” should be very important in dealing with therapy animal cases. While the FHA regulations for therapy animals cover a very wide range of animals and the service they provide, they cannot expand the definition of “handicap.” Therapy animals are almost exclusively prescribed for mental impairments, and mental impairments like PTSD and depression are those most likely to fail to meet the definition of “handicap” under the FHA. Homeowners associations, multi-family housing providers and others subject to the FHA should give careful thought to how they evaluate handicap with respect to their tenants and occupants, and if faced with a lawsuit, should certainly take a hard look at the possibility that their tenant is not “handicapped” even though he or she may be “disabled.”

Unconventional wisdom concerning pet deposits under the Fair Housing Act.

thomas's-leaf-monkey_0337One common bit of conventional wisdom under the FHA is that apartments and other housing providers cannot require a pet deposit for an assistance animal or service animal. This is certainly the position of HUD and the DOJ. (See, HUD memo dated April 25, 2013 and see http://www.ada.gov/qasrvc.htm). The position is based on the notion that because a disabled person is required to have a service animal it is discriminatory to require anything of such a person that would not be required of a person without a disability who had no pet. See Intermountain Fair Hous. Council v. CVE Falls Park, L.L.C., 2011 WL 2945824 (D. Idaho 2011). The question of whether it indeed violates the FHA to require what would be more rationally called an “animal damage deposit” is really more nuanced than this.

As a first step, there in an inherent inconsistency in the positions taken by HUD and the DOJ concerning damage caused by service or assistance animals. HUD acknowledges that an apartment owner can charge an animal owner for damage caused by the animal if it requires reimbursement for damage cased by other tenants. If the argument against an animal damage deposit is that disabled persons cannot use or enjoy the premises without an animal surely it can argued that the inevitable damage is also a consequence of their disability. After all, non-disabled tenants are never charged for animal damage because, of course, they don’t have animals if there is a no pets policy. A refundable animal damage deposit is only an advance against later damage, and if the landlord can charge for actual damage there is no reason not to charge a refundable deposit.

The FHA should allow this because it is elementary that a reasonable since a reasonable accommodation cannot impose an undue financial burden on the landlord. Giebler v. M&B Associates, 343 F.3d 1143 (9th Cir. 2003). Landlords require damage and rent deposits for all tenants based on the reality that renters move out and leave damage behind, and that it is difficult or impossible to recover the cost of that damage after the fact. If an animal is likely to cause additional damage then the landlord will suffer an undue financial burden if it cannot require a deposit. The widespread imposition of pet deposits in apartments that allow pets demonstrates that animals do cause additional damage. After all, no landlord would make his apartments less competitive by imposing an unnecessary charge on tenants.

In addition, the FHA’s non-discrimination provisions include “assistance animals” that provides “emotional support” to “alleviate” symptoms of a disability. No special training is required. The ADA definition of service animal is not so loose, providing that a service dog is “individually trained to do work or perform tasks for people with disabilities.” In most cases the special training for service animals includes behavioral training that makes them unlikely to be destructive in any circumstance. There is no assurance that an assistance animal will have such training, and so it may be rational for a landlord to require that assistance animal owners pay a damage deposit. This was discussed in Fair Housing of the Dakotas, Inc. v. Goldmark Property Management, Inc., 778 F.Supp.2d 1028 (D.North Dakota 2011), a case that concluded fact findings were required to determine whether it was reasonable to require a damage deposit. In Smith v Powdrill, 2013 WL 5786586 (C.D. Cal. 2013) the court went further, acknowledging that while a “no pets” policy could not be enforced, a reasonable accommodation might include requiring a damage deposit not required of tenants who had no animals.

Finally, there may be a real question as to whether a modest animal damage deposit actually has the effect of denying a disabled tenant access to housing. In the Intermountain Fair Housing case the animal deposit was fairly steep at almost $1000. It isn’t hard to imagine cases in which, based on the rent for the apartment and ordinary deposit a modest additional pet deposit would not be a problem for tenants wealthy enough to rent a unit in the first place. A rational deposit requirement that imposes no real burden on the tenant would certainly seem to be possible as part of a reasonable accommodation.

In the end, the key to the question of animal damage deposits boils down to whether the facts justify such a deposit as part of a reasonable accommodation. “The reasonable accommodation inquiry is highly fact-specific, requiring case-by-case determination.” United States v. California Mobile Home Park Mgmt. Co., 107 F.3d 1374, 1380 (9th Cir.1997). Unlike service dogs that accompany their owners for a short time in a retail store or restaurant, assistance animals are likely to spend most of any day in the apartment, making the chance of destructive behavior greater. In addition, because there is no limit on the kind of assistance animal there are also more possibilities for destructive behavior. A monkey, for example, can reach and damage things no dog could reach. By trying to create a single broad rule for a wide variety of disabilities and types of animals HUD and the DOJ have ignored their own repeated warning that determinations concerning reasonable accommodations must be based on the specific circumstances rather than sweeping generalizations. This imposes a burden on landlords, who themselves cannot rely on a “one size fits all” policy, but also means there is a sound argument to be made that a reasonable accommodation may include an animal damage deposit.

ADA accessibility in movie theaters — do the DOJ’s plans make sense?

interiorOn July 23 the Depart of Justice published a notice of proposed rulemaking on accessibility in movie theaters for those with vision and hearing disabilities. (http://www.ada.gov/regs2014/movie_nprm.html). The public comment period begins today. The proposed rules will require most movie theaters to buy equipment so that customers with hearing disabilities and vision disabilities can participate in the movie watching experience.  There are numerous limits and caveats, but what I find most interesting is the analysis of costs and benefits, in which the DOJ admits that it has little or no data to support a claim that the benefits are worth the costs. Consider some of the DOJ’s admissions about its own ignorance: Continue reading

The danger of fighting a losing battle in ADA cases

monkimage.phpThis is a short follow-up to my May 14 blog “know when to fold ‘em.” A couple of weeks after I published that piece a decision came out from the Northern District of Georgia that dramatically illustrates the risk of a vigorous defense in a losing case.

Defense counsel interested in the legal principles that guide attorney’s fee awards in ADA cases will find it useful to read the full opinion in Gaylor v. Greenbriar of Dahlonega: Shopping Center, Inc., 2014 WL 2195719 (N.D. Ga., May 27, 2014) . However, the gist of the holding can be found in one short paragraph: Continue reading

A victory for common sense: 11th Circuit FHA ruling rejects subsequent owner liability in multi-family housing

champagne_toast-268x300In a decision issued on April 14, 2014 the 11th Circuit provided a major victory for subsequent owners of apartments and other types multi-family housing. In Harding v. Orlando Apts. LLC, 748 F.3d 1128 (11th Cir. 2014) the Court dismissed the notion that merely owning or operating an apartment complex could create liability for a failure of the apartments to meet the FHA design standards.  Following the best reasoning of scattered earlier district court decisions the Court found that the clear language of the FHA imposed design and construction liability only on those involved in the original design and construction, and that the general anti-discrimination provisions of the FHA did not create an ongoing duty to bring a multi-family development into compliance with the design standards. (See my blog of November 21, 2013 for background on the pending district court cases). Continue reading

Accessibility Defense

Richard Hunt Talks About ADA and FHA Litigation.

Richard Hunt Talks About ADA and FHA Litigation.

The ADA: Titles II and III

Richard Hunt Talks About ADA and FHA Litigation.

Understanding the Americans with Disabilities Act (ADA)

Richard Hunt Talks About ADA and FHA Litigation.


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