ADA and FHA Defense

    • Emotional Support Dogs again?

      The March 25, 2026 decision from the Connecticut Supreme Court in Connecticut Commission on Human Rights and Opportunities v Mansions takes a small but significant step toward limiting misuse of the Fair Housing Act as a way to avoid pet deposits or “no pets” rules. For full disclosure purposes, I represented the winning landlord throughout the case.

      To understand the decision, which was based on Connecticut law but should be persuasive in Fair Housing Act cases, requires a little background in how a person can be disabled and how that might affect their right to a reasonable accommodation like allowing an emotional support animal. Under both federal and Connecticut law a person can be “disabled” in three ways. First, they can really be disabled; that is, they have a mental or physical impairment that substantially limits a major life activity. Second, they can have a “record” of a disability. That would be something like a written medical record. It doesn’t matter if the record is correct, only that it exists and the landlord knows about it. Finally, they can be “regarded as” disabled even though they are really not disabled.

      A tenant cannot be really disabled and regarded as disabled at the same time. The whole point of “regarded as” disability is that discrimination is wrong even if it is based on a wrong perception of a disability. It is just as bad to refuse to rent to a tenant because the landlord believes they are disabled as it is to refuse to rent because they are really disabled. And a person who is both really disabled and regarded as disabled doesn’t need a “regarded as” theory of liability because they already have the best theory of liability, a real disability.  At the same time, a tenant can prove they are regarded as disabled without having to prove they are really disabled.

      “Record of” disability floats somewhere between these two. Connecticut law is not quite the same a federal law with respect to “record of” disability, but in principle under both state and federal law “record of” disability is like “regarded as” disability. A landlord should not be allowed to discriminate against a tenant because the tenant has an inaccurate record of being disabled any more than the landlord should discriminate against a person because the landlord has an inaccurate belief about the tenant.¹

      Emotional support animals enter the discussion because under both federal and Connecticut law a person with a disability may be entitled to an accommodation – a waiver of some policy – it it is necessary for their equal use and enjoyment of an apartment, house, or other dwelling. But neither federal nor Connecticut law explicitly limits this theoretical entitlement to real disabilities. The bare words in both laws just says that if you are “disabled” you may be entitled to an accommodation.

      With that, we can look at the Mansions case. The aggrieved parties were the Pizzoferratos. Ms. Pizzoferrato suffers from “anxiety” and believed her two shitzus helped with that anxiety. It was important to her and the lawsuit that she said she needed both dogs, not just one or the other.

      [Why did I put “anxiety” in quotes? Because “anxiety” is a feeling or symptom caused by some underlying condition. You can be “anxious” about an upcoming test, or trip, or a relative’s health. That kind of anxiety is appropriate and not a disability. You can also be anxious because you suffer from Generalized Anxiety Disorder, which is a mental disorder in which the person feels anxiety when it is not appropriate or to a degree that is not appropriate. Suffering from Generalized Anxiety Disorder is a disability. Ms. Pizzoferrato was an anxious person, but the trial court did not find that she had the kind of anxiety that would be a disability.]

      Mansions agreed to allow Ms. Pizzoferrato to have one dog despite its “no pets” policy, but refused to allow the second. There is no agreement among the various parties about who thought what and whether what they did was reasonable, but the trial court found that Mansions must have “regarded” Ms. Pizzoferrato as being disabled because it allowed one dog.  And for the trial court this was enough. Ms. Pizzoferrato met the first requirement for an accommodation because she had a “disability” under one of the three definitions of disability. She met the “needs an accommodation” requirement because she said, and the trial court believed, both dogs helped her anxiety. With this the trial court believed she had proved she was entitled to an accommodation allowing both dogs.

      Mansions lost the trial and decided to appeal. In a long opinion the Court of Appeals basically followed this train of thought:

      • Real disability is off the table because there was no finding of a real disability by the trial court.
      • A person who is only “regarded as” having a disability is never entitled to an accommodation because they have no real disability that would create a need for an accommodation.
      • Even though the trial court didn’t say it explicitly, the trial court implied found that Ms. Pizzoferrato also had a “record of” a disability.
      • A person with a “record of” disability might need an accommodation, but that possibility didn’t matter in this case because
      • There was no evidence at trial that Ms. Pizzoferrato really needed two dogs.  This conclusion was based on the legal definition of necessity used in various federal appeals court decisions. The Court of Appeals agreed with those decisions and said that under  that legal definition of necessity Ms. Pizzoferrato only “needed” the one dog Mansions allowed.

      Thus, according to the Court of Appeals, even the implied finding that Ms. Pizzoferrato had a “record of” disability would not give Ms. Pizzoferrato a right to have two dogs as an accommodation. Based on this the judgment of the trial court was reversed.

      Of course that was not the end of the story. The Connecticut Supreme Court is always available to decide whether the Court of Appeals made a mistake. In this case both sides thought that the Appellate Court had made mistakes. Both sides appealed to the Supreme Court and after a lot of briefing and a couple of hours of oral argument² we got the opinion this blog is about. The Supreme Court said:

      • Everybody, including the Pizzoferrato’s and the Commission on Human Rights and Opportunities, agrees that Ms. Pizzoferrato did not need an accommodation if she was merely regarded as disabled. Supreme courts hate to commit to broad statements when a narrow statement will do, and the Court leaves open the possibility that under some circumstances a person with a “regarded as” disability might need an accommodation. But not Ms. Pizzoferrato.
      • Because of this the Court of Appeals was right to reverse the trial court’s judgment. Hurray for my client. We win.
      • But, says the Supreme Court, the Court of Appeals had no business implying a finding by the trial court that Ms. Pizzoferrato also had a “record of” a disability. That implied finding was superfluous to the trial court’s result and appeals courts should not imply superfluous findings by trial courts.
      • Similarly, because a “regarded as” disability would not support an accommodation for even one dog, the Court of Appeals’ discussion of what it means to “need” an accommodation and why Ms. Pizzoferrato didn’t “need” two dogs was also superfluous.
      • We don’t want our legal precedents clogged up with unnecessary discussion and findings so the Court of Appeals’ superfluous findings  about “record of” disability and the definition of “need” are vacated.

      Now from my viewpoint the fact that I won the case for my clients (who really won it for themselves by making the right decisions) is reason enough to shout from the rooftops, but is there any other reason to think this case was important? As it turns out there is. While the Supreme Court was unwilling to say more than the bare minimum needed to get to the right outcome, this opinion appears to be the first by any state or federal court that recognizes what should be obvious: you can’t need an accommodation if you are not really disabled.†  This matters to landlords because many will grant an accommodation request they don’t believe in just because it is easier and cheaper than fighting a HUD or state investigation. If it turns out the accommodation was far more trouble than they thought – as for example when the tenant decides that they are also entitled to take their 90 pound Rottweiler swimming in the pool off leash – the landlord can go back to basics and say the accommodation was never right in the first place because there was no disability. A court may say that by granting the accommodation the landlord “regarded” the tenant as disabled, but that won’t help the tenant because “regarded as” is not a ticket to keeping the dog at all, let alone in the swimming pool. A landlord can accept the bogus accommodation letter purchased on the internet without admitting the diagnosis is correct.

      Also, even though the discussion of necessity by the Court of Appeals was vacated, I think later courts will look at the Court of Appeals’ discussion of “necessity” and find it persuasive. This ruling wasn’t vacated because it was wrong; it was only vacated because it was unnecessary. I think that other judges will be impressed by what the Court of Appeals said in a long and thoughtful opinion.

      Where do we go from here? More than one kind of sloppy thinking about the FHA has contributed to the ESA problem faced by landlords. The cases on “necessity” relied on by the Court of Appeals did not concern animals, and a solid case explaining why emotional support animals should almost never be “necessary,” even for those who really are disabled, would be helpful. What is needed most, however, is for both the health care profession and the courts to give some hard thought to what an ESA must do to be a “necessary” accommodation. Does the ESA help a person with a disability overcome the limitations created by their disability so they can more equally use and enjoy their apartment in the same way a guide dog helps a blind person overcome the limits of blindness? Or is it just a furry narcotic that helps the owner not care about how their disability limits them?  Courts should reject the notion that an accommodation can be “needed” when it does nothing to improve equality of use and enjoyment of a dwelling.³ The purpose of both the Connecticut and federal fair housing statutes was to improve equality, not just make those disabilities feel better about inequality.

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      ¹ If it seems like this is needlessly complicated well, it is. The problem is that when defining “disability” (or “handicap” under federal law) the legislature was writing laws to prohibit employment discrimination as well as housing discrimination. In an employment context employers often get medical records that might show a prospective employee is disabled when they have never met the prospective employee. “Record of” disability was created to cover that situation. Of course if the employer or landlord discriminates based on the record they clearly also regard the employee/tenant as disabled, so it is somewhat redundant, but there is a long pre-FHA history to these definitions and so the state and federal legislatures were not really starting from scratch.

      ² If you are interested you can hear the argument at the Connecticut Supreme Court’s website, https://www.jud.ct.gov/supremecourt/Audio/OralArgumentsAudio.aspx. I have not listened to it myself because  I never sound as brilliant in the recordings as I remember I sounded at the time.

      † To be perfectly accurate, a tenant almost certainly can’t need an accommodation if they are merely “regarded as” disabled. However, we are talking about emotional support animals, and the opinion, I think, excludes the possibility that a “regarded as” disability can support a need for an ESA.

      ³ A brief mention of “use and enjoyment.” The word “enjoy” here does not mean have fun or fell good. It means take advantage of what an apartment offers; shelter, heat, water and so forth. Lots of people who are not disabled don’t have fun or feel good in their home, but they still “enjoy” it as long as the roof doesn’t leak and the heat and water work.


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    • ADA 30 Days to Comply Act – an additional thought.

      I say “an additional thought” because while I was thinking about what to say concerning the newly introduced ADA 30 Days to Comply Act William Goren wrote his own analysis of the law, which you can read here – Goren Blog. Briefly, the law imposes a 30 day notice requirement as a prerequisite to filing suit and requires that the notice be meaningful; that is, specific enough to help a business owner correct whatever ADA violations are said to exist.¹ One of the most common complaints from businesses who are the targets of this kind of litigation is that they didn’t know there was a problem and they got no chance to fix things. This law aims to remove that complaint.

      My additional, and perhaps cynical, thought is that even if passed² the bill will provide only modest relief from the industrial scale litigation model that dominates enforcement of Title III of the ADA. This is how that model works:

      • A plaintiff who essentially works for a law firm drives around looking for obvious ADA violations. These are not hard to find because older businesses never had appropriate parking and ramps while newer businesses often suffer from deferred maintenance problems.
      • The law firm files a dozen or more suits each month in the name of that plaintiff.
      • The lawsuits can be readily defended because as Bill notes in his blog, there are often real questions about standing to sue.
      • The defendant also has the option of mooting the lawsuit by fixing every ADA problem.
      • But instead the defendant almost always settles. Why? Because the cheapest way out of the lawsuit is a motion to dismiss and the legal fees to prepare and file that motion are greater than what it costs to settle the case.  For the defendant the analysis is simple. It costs $x to settle the case and $y dollars to defend the case. The defense may fail, settlement is a sure thing. As long as settlement is cheaper to defend then settlement is always the rational choice.

      The 30 Days to Comply Act can’t change this analysis. Suppose a plaintiff files suit without sending the required notice. The defendant now has a stronger motion to dismiss than they would otherwise, but it will still cost money to prepare and file the motion and that cost will still likely be more than cost to settle.  If the plaintiff sends a perfunctory notice that doesn’t meet the statutory standard, which is easy enough, the motion to dismiss becomes weaker because what the statute requires isn’t black and white. Title III ADA litigation is mostly driven by the simple economics of cost to settle versus cost to defend and the 30 Days to Comply Act does not change those economics.

      Industrial scale ADA litigation is driven by the economics of settlement and the ease of finding ADA violations. There are some positive things Congress could do to change these drivers, although it does not seem inclined to do so:

      • Spend taxpayer money to make sure all businesses understand their Title III accessibility obligations. I am frequently called by businesses and even other lawyers who believe businesses with fewer that 15 employees are exempt from Title III or that older businesses have been grandfathered. Both notions are wrong. There is no occasion in the process of opening a new business that qualifies as a public accommodation for a business owner to learn that they have ADA accessibility obligations. The IRS communicates with every new business (and every established business as well) so there is a natural channel for sending this information at minimal cost.
      • Eliminate the judicially created doctrine that merely seeing an ADA violation creates an injury sufficient to meet the standing requirement in Article III of the Constitution. The Supreme Court may do this some day, but Congress can do it now.
      • Provide for an award of defense attorneys’ fees if a lawsuit is dismissed under Rule 12(b)(1). This would make the attorneys who drive these cases and their “clients” think twice about filing suits based on a quick drive-by with no possible injury and standing.

      The first of these is the most important because, as plaintiff attorneys love to point out, the ADA is decades old and by now  we should not have common problems like accessible parking, ramps and sidewalks in sufficient numbers for making large scale litigation possible.  Congress decided, when it passed the ADA, to cheap out on helping businesses understand and comply with the law, leaving private lawsuits (and the publicity they cause) as the most common ways for businesses to learn what the ADA requires.  I’ve written about this before³ but it is worth saying again; industrial litigation only exists because of widespread non-compliance with the requirements of the ADA. Many of the “problems” are trivial in terms of their real impact on accessibility, but that is the subject for another blog. In most cases basic compliance is relatively inexpensive and the real problem is ignorance. Congress should think about attacking that problem before it tries one more time to impose a 30 day notice requirement on ADA lawsuits.

       

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      ¹ The law concerns standards for physical access to “places of public accommodation;” meaning for the most part businesses open to customers.

      ² Similar bi-partisan bills have consistently failed to pass for more than a decade, even when one party controlled both houses of congress and the presidency.

      ³ See, for example my earlier blog Disabled Access Credit Act.


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    • What the ADA and FHA are all about.

      On December 5 (2025) I argued a fair housing case before the Connecticut Supreme Court. The details are important, but not for this blog.  I say that because during the argument it occurred to me that it is easy, while cataloging and describing all the trees in the forest to forget that it is a forest, not just a collection of trees. Today I’m going to step back and look at the FHA, ADA and other disabilities rights laws to remember what makes them different from other anti-discrimination laws and the reasons for those differences.

      Most anti-discrimination laws, including those concerning disabilities, are intended to forbid unequal treatment in political, social and economic life based on irrational distinctions with deep historical roots. Irrational distinctions are those based on untrue ideas about what people can and cannot do. We are not all equally smart, strong, or otherwise qualified to make good decisions at the ballot box or do this job or that, but that inequality is not related to the color of our skin, our religion, our national origin, our gender, or similar distinctions that once seemed to matter. This means it is irrational to prefer one race¹ over another in hiring, or to prefer one religion over another when renting an apartment. This can be put in moral and religious terms, but the underlying principle is that making distinctions based on things like skin color or ethnic origin is irrational, and that it is therefore harmful to a society that requires all the talents available from all its citizens.

      People with disabilities are, by definition, unequal in some respect. The blind cannot see, the deaf cannot hear, and those who suffer from mental disorders may not be able to perform some tasks in some situations.  At the same time, being disabled in one respect does not mean that a person lacks any other ability that might be required by a job or to otherwise participate in social and economic life. Blindness is not related to intelligence, deafness is not related to physical strength, and many mental disorders that interfere with some aspects of daily living have no effect on others. Whether a disability matters when making a decision can be difficult, especially when it comes to work. However, in the realm of participation in a consumer society or voting it is rare that any disability is relevant. Only in the case of some severe intellectual disabilities would a disabled person be unable to decide what they want to buy or where they want to live.

      So far, so good then. It should be and is illegal to discriminate against those with disabilities except in those cases where the disability is directly related to whatever it is they want to do.  But there is another problem with disability and equality; the difference between equality of treatment and equality of opportunity. The U.S. Constitution guarantees equality of opportunity, not equality of outcomes. Some will succeed, some will fail, some will be rich, some will be poor, some will be happy and some miserable. What the law guarantees is that everyone will have an equal opportunity to poor and miserable; or to be more positive, an equal opportunity to be rich and happy.

      The general premise of anti-discrimination laws is that if people are treated equally they will have equal opportunity.  The law cannot guarantee complete equality of treatment of course. Many studies have shown that taller men tend to be favored over shorter men for some executive positions and there is no doubt that those with better clothes, better manners and a prettier or more handsome face are often treated better than those who are poorly dressed or don’t meet our social conventions about what is attractive.  What the anti-discrimination laws do is attack the most invidious reasons for discrimination; things like race, religion, national origin and so forth. In every case the theory is the same; equal treatment despite membership in some group provides as much equality of opportunity as the law can reasonably guarantee.

      Unfortunately, a guarantee of equal treatment does not result in equality of opportunity for those who are disabled.  For example, a blind person with a guide dog cannot easily navigate without their dog. A “no dogs” policy in a store is the same for everyone, but the policy denies a blind person the equal opportunity to shop. Another example would be a “no reserved parking” policy in an apartment complex. On its face this creates the same inconvenience for everyone, but for a person whose disability makes it difficult to walk the policy might be more than just an inconvenience; it could deny them the equal opportunity to get into their apartment.

      To provide equal opportunity when equal treatment is not enough the FHA, ADA and other disabilities laws have what are generally called accommodation requirements. If the equal application of some rule or policy would result in unequal opportunity for those with disabilities, then the policy or rule must be waived or modified to permit equality of opportunity; or at least to permit as much equality as is possible given the disability.  Stores, landlords and others are not required to do something “unreasonable,” but in general they should be willing to change or waive their rules to permit someone with a disability to have an equal opportunity to buy, or rent, or even just walk around a public space. In other words, those with disabilities must be given special, unequal treatment as a way to provide equality of opportunity that their disability would otherwise deny them.

      This is where it becomes easy to start looking at the color of the bark and leaves and forget there is a forest. Regulatory agencies, courts and businesses love nice black and white rules. They want a clear answer to questions like: “Is a person suffering from major depressive disorder entitled to waiver of a no pets policy?” Yes or no, please, because no one likes complicated questions. Although it was recently withdrawn, in 2020 HUD published a guidance on when animals were a required accommodation that tried so hard to both provide easy to apply rules and still recognize that there are no easy to apply rules that it ended up being incomprehensible gibberish.

      When it comes to accommodations the questions to ask are easy but the answers cannot be put in the form of simple rules. Here are the questions:

      First – is the person requesting an accommodation disabled as defined in the relevant statutes? In every case this means (a) do they have a mental or physical disorder that (b) substantially limits with a major life activity. “Disorder” is pretty easy because even a common cold is a physical disorder. “Substantially limits” is harder and the courts – who are the final arbiters of this kind of question – are not in perfect agreement. Also, the ADA and FHA have different definitions and the ADA covers more conditions than the FHA (although these generally come up only in employment cases).

      Second – does the disability in question interfere with the equal opportunity to use and enjoyment of a facility like a store, home, apartment, or public space? Remember that the general rule is equal treatment for all. The accommodation obligation – special treatment for a person with a disability – is only intended to provide equality of opportunity for those whose disabilities would prevent equality of opportunity. Having a disability isn’t a free pass for special treatment in general.

      This second rule gets complicated when you ask what it means to equally use and enjoy something. It is easy at this point to get deep into looking at the color of the bark on the trees, but there is one thing that is easy to say. “Enjoy” does not mean to have fun or feel good. It’s really the same thing as “use” when “use” isn’t the right word.  You use the kitchen in a house, you enjoy having a place to live that provides protection from the elements. You may be sad, anxious and depressed, but if your home provides the basic shelter and amenities provided for in the lease you are “enjoying” the apartment.

      Third – is the accommodation requested reasonable?  It isn’t hard to see that “reasonable” is a word that can mean different things to different people. There are various regulatory definitions of “reasonable” and the courts have weighed in, but what is reasonable depends on so many things that no rule will ever be satisfactory.

      Fourth – does the accommodation create a direct threat? Not so complicated, but if you think about it anything that creates a direct threat isn’t reasonable, so this question seems a little redundant.

      Now let’s get back to the forest. Even though answering these questions may be complicated in any specific case, and even though regulators and courts would like to find a bunch of easy to apply rules, it is important always to refer back to the basic principle of equality of opportunity.  Unless equality of opportunity is somehow limited by the disability in question there can never be a need for an accommodation because accommodations are only required when equality of opportunity is at issue.

      In my next blog we’ll get back to staring at bark and leaves.

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      ¹ It has to be noted here that “race” is a social construct usually based on appearance or origin; this is why it is an irrational basis for making choices about how to treat someone. A hundred years ago it was common to speak of the “English race” or the “German race” as if there were genetic differences that drove ability or conduct. Notions of “race” have gradually narrowed in most of the world to the idea that skin color defines a “race,” but “race” is still a social construct with no basis in genetic reality.

      ² There has been lots of silly commentary about how a “no pets” policy would not prohibit a guide dog or other animal because these animals are not “pets.” What it means for an animal to be a “pet” is not a sound basis for making decisions about disability rights, so we can stick to the real problem, which is a prohibition on animals.

      ³ One of the things everyone expects as part of the use and enjoyment of their home is that they can get dressed and go out in the world from their front door. A blind person who relies on a guide dog cannot do that without their dog; hence to have an equal opportunity to use and enjoy an apartment or house they must have their dog living with them.


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    • Emotional Support Animals, Fact, Fantasy and Fiction

      My webinar Emotional Support Animals Under the FHA – Fact, Fantasy, and Fraud (Update) is now available live from Lawline. The news covered in my last blog and other actions by the Trump Administration have important consequences for landlords, management companies, owners associations and other housing providers even while the underlying law and science remain largely unchanged.

       

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    • Disability Rights under the Trump Administration.

      Coming on the heels of my presentation of this title (available at Trump and Disability Rights) HUD and Senator Elizabeth Warren have both made significant announcements about fair housing enforcement.

      On September 17 HUD announced that it was withdrawing a number of guidance documents, including FHEO 2013-01 and 2020-01 and concerning assistance animals. These guidances were never a model of clarity and were in some cases inconsistent with the law,¹ so housing providers will not be sorry to see them go. However, the confusion they caused was important only because it reflected HUD’s attitude toward assistance animals in its investigations, and for the rest of this administration, at least, HUD has more or less bowed out of the fair housing enforcement business. The September 17 announcement  includes HUD’s statement that it is now “Prioritizing cases with actual, provable instances of discrimination.” ESA and other accommodation cases are not easy to prove, and of course HUD’s 70% reduction in its fair housing investigations staff won’t make enforcement any easier.

      That is the point of Senator Warren’s demand for an investigation into HUD’s fair housing enforcement. Based on allegations by whistleblowers within HUD Senator Warren wants HUD’s inspector general to investigate claims it is not enforcing fair housing laws. This investigation of HUD by HUD seems doomed from the start but the back and forth between HUD and fair housing advocates like Senator Warren points out two underlying problems with HUD’s enforcement of the disability discrimination provisions in the Fair Housing Act. The first is simply that fair housing enforcement is not cheap. HUD’s cuts to its investigative staff were part of a gigantic across the board budget cut that doesn’t seem to have been aimed at disability rights any more than it was aimed at other HUD initiatives.  Even the most impartial investigation might conclude that HUD simply no longer has the money to enforce the law.

      The second is that HUD has not proven especially good at dealing with animal accommodation requests. FHEO 2020-01 was almost incomprehensible because HUD was wrestling with problems it did not have the expertise to handle, including questions about the effectiveness of emotional support animals and the definition of “handicap” under the Fair Housing Act. HUD’s attitude, at least until this administration, was that claims of handicap were prima facie true, as were claims that emotional support animals were necessary for equality of housing opportunity. Courts require evidence; HUD was content with allegations, in part because HUD is not an agency with in-house expertise in the diagnosis of mental disorders or in the science of human-animal interactions. This is unlikely to change under this administration, which has little inclination to listen to experts anyway.

      For housing providers the news remains unchanged because the law remains unchanged. The risk of HUD enforcement in ESA cases is lower because of changes in policy and budget, and for the next three years or so housing providers can take a more aggressive approach to the evaluation of ESA requests without risking an expensive investigatory process. That general observation has to be tempered with the knowledge that private enforcement is still available and expensive to defend. Housing providers should not assume they can deny every request now that HUD is more or less out of the picture; instead they should continue to follow what has always been the best policy: evaluate each claim for accommodation on its merits, develop a record of reasonableness in responses to such claims, and deny claims based on their merit and the risk of litigation.

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      ¹ See my blog HUD Guidance will encourage fraud.

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    Richard Hunt, author