We aren’t quite to Halloween, but the candy is certainly crowding the shelves of local stores, whose owners might want to take a look at Ryan v. Kohls, Inc., discussed below. Beyond that we have the usual roundup of default judgment cases, website accessibility standing cases, and of course some ordinary “drive-by” cases involving physical accessibility mixed in with cases that deserve special attention because they could have a broad impact on ADA and FHA litigation. Here they are. More
FHA Reasonable Accommodation
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Web Access, FHA, FHA Emotional Support Animals, FHA Reasonable Accommodation, Internet, Internet Accessibility, Reasonable accommodation, Rehabilitation Act Tags: ADA defense, ADA drive-by litigation, ADA Mootness, ADA website accessibility, FHA Defense, World Cup
Those of you who are not binge watching the World Cup matches will be interested in what has been going on in the world of disability rights during the last few weeks. Here is our roundup of recent ADA and FHA decisions, some of which are notable.
Indemnity and contribution for Fair Housing Act claims.
Shaw v. Cherokee Meadows, L.P. 2018 WL 2967708 (N.D.Okla. June 12, 2018) is another in a series of cases concerning indemnity for design/build defects under the FHA that gets it completely wrong and winds up with an absurd result. The decision has little in the way of discussion because it relies on the analysis from an earlier case, Equal Rights Center v. Niles Bolton Associates, 602 F.3d 597 (4th Cir. 2010). We’ve blogged on this issue before* but the arguments are worth repeating. Equal Rights Center based its analysis on earlier cases concerning race and similar kinds of intentional discrimination found that public policy precluded indemnity and contribution for FHA discrimination claims. In cases of intentional discrimination or respondeat superior it makes sense to forbid indemnity because you want to discourage bad intent and encourage proper supervision of employees. It doesn’t make any sense at all in design/build cases under Section 3104(f)(3)(C) because this is a “no fault” provision that can be violated without any intent to discriminate. Moreover, the owner of an apartment complex has no choice but to rely on 3rd party experts – architects and contractors – to properly design and build the apartments. When architects and contractors know that they are immune from liability for their failures they have no incentive to design and build according to FHA standards, and as a practical matter they are always immune because the first target in any lawsuit will be the owner. The Ninth Circuit has rejected Equal Rights Center for good reason, and if Shaw v. Cherokee Meadows is appealed the Tenth Circuit should reject it as well. More
By Richard Hunt in Accessibility Litigation Trends, FHA Emotional Support Animals, FHA indemnity contribution, FHA Reasonable Accommodation, Landlord-tenant Tags: disability discrimination, Fair Housing Act, reasonable accommodation, Reasonable modification, service dog, Sothby's
A brand new decision from Northern California, Hintz v. Chase, 17-CV-02198-JCS, 2017 WL 3421979 (N.D. Cal. Aug. 9, 2017) reminds both property owners and sales or leasing agents that no one can escape responsibility for making the right decision in cases under the Fair Housing Act. This is an especially important reminder for those in the market for single family residences unacquainted with the subtleties of disability discrimination and the notion of reasonable accommodation and modification. More
A decision from the Western District of Texas should remind landlords that the world of FHA litigation is unforgiving and expensive, so the best thing is to get it right the first time. Reading it has prompted us to re-offer our webinar on dealing with accommodation requests involving animals later this month and next. Details appear at the end of this blog.
Chavez v Aber, 122 F.Supp.3d 581 (W.D. Tex. 2015) involved a child with a mixed breed pit-bull as an emotional support animal. There was no question about the child’s psychiatric disability or the fact that the child’s doctor recommended the dog for therapeutic purposes, so the only legal question was whether to dog had to be accommodated despite a “no pets” policy and the fact that pit-bulls are regarded as a dangerous breed. That did not mean the case was simple. As the court pointed out more than once, cases involving accommodation depend very much on the facts. More
Anyone reading the news, or at least the disability news, understands that so called emotional support animals for persons with mental disabilities are a big deal. The number of HUD complaints based on refusals to allow ESA’s is growing, and there is a booming industry filing complaints, selling fake service dog paraphernalia, and selling bogus diagnosis of disability. With all this going on, it might be reasonable to ask whether there is any evidence at all that ESA’s at home or on an airplane are really of any value at all to a person who is disabled. Despite the noise from animal advocates, the science doesn’t support their claims. More