Accessibility Defense, Helping Business Avoid and Defend ADA and FHA Lawsuits

ADA and FHA Defense

  • 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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  • The Trump Administration and Disability Rights

    My webinar on The Trump Administration and Disability rights is now available on Lawline. You can find it a Lawline.com, a good place to find my earlier seminars:

    FHA and ADA Accessibility Requirements: What Every Lawyer Needs to Know

    and

    Your Office is a Public Accommodation: What Professionals Need to Know About the ADA

    You will also want to check out my upcoming webinar: Emotional Support Animals Under the FHA – Fact, Fantasy, and Fraud (Update),  which will stream live on October 7 at 1:00 p.m. CDT.

     


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  • FHA tester standing – the beginning of the beginning of the end?

    Even after the Supreme Court’s decision in Transunion¹ and the Fifth Circuit’s decision in Laufer v Mann Hospitality,² challenging the standing of a Fair Housing Act tester in Texas has been a hit or miss proposition depending very much on which District Judge decided the case. It has been quite possible to file almost identical motions to dismiss concerning almost identical complaints and get opposite results. The underlying uncertainty has several sources. First, the only attorney actively filing FHA tester cases in Texas, Eric Calhoun, has gathered a substantial list of decisions denying motions to dismiss based on standing, and while a decision by one district judge does not bind the others, it is hard for any district judge to simply ignore a dozen decisions by their peers. Added to this is the lack of circuit level authority on FHA standing. Transunion was not an FHA case and neither was Laufer v. Mann Hospitality, making it easy to argue that FHA cases are different, especially since the Supreme Court’s decision in Havens Realty Corp. v. Coleman is the leading case on tester standing and was decided under the FHA. It has been widely misunderstood and misused, but it certainly supports an argument that a plaintiff tester can have standing in an FHA case. Finally, the FHA provides a damage remedy and there is some case law suggesting a person with a disability suffers compensable damages by merely encountering an FHA violation. That means even a tester with no intent to rent can at least claim damages. And from it is only a short step from any standing at all to cases suggesting a federal judge has  broad power to enter injunctions to cure design and construction violations.

    That last step is why Judge Godbey’s decision in Millerborg v. Blue Bonnet Trail LLC, 2025 WL 1994407 (July 16, 2025)³ has the potential to significantly change the prospects for defendants in these cases. The decision begins with the recognition that Laufer v Mann Hospitality is a crucial decision on standing in the Fifth Circuit and then considers the plaintiff’s allegations in light of that case. Judge Godbey ultimately concludes that the plaintiff’s complaint does not include sufficient detail for the Court to determine whether he “personally experienced (as opposed to merely observed)” the various supposed violations he encountered. The difference between experiencing a violation and seeing a violation is crucial because in Laufer v. Mann Hospitality the Fifth Circuit rejected the notion that a disabled person might suffer a real harm just from seeing a condition that violated the law. Seeing a gate that is too narrow to meet FHA standards doesn’t cause a harm that gives rise to standing. Being impeded by narrowness of the gate does.

    While this is helpful, it is not hard for a tester plaintiff to claim there were at least a few violations that interfered with their access to the property, and Judge Godbey gave the plaintiff in Bluebonnet Trails a chance to amend and be more specific about what he personally experienced.  A person who is wheelchair bound can plausibly allege that a gate that does not meet FHA requirements hindered their access to some part of the apartment complex, and that is enough to allege a harm that would give rise to a claim for damages even if the amount were small.

    It is the next step in Judge Godbey’s analysis that can change the nature of FHA defense.  Turning from past injury to future injury ,Judge Godbey notes that a plaintiff seeking injunctive relief must show a real or immediate threat of future injury in order to get injunctive relief. Millerborg does not claim (because it would not be true) that he wanted to lease an apartment. Without an plausible allegation that he would return in the future and might suffer an injury if things are not fixed Millerborg has failed to allege an immediate threat of a concrete harm. Therefore, according to Judge Godbey, Millerborg failed to plead any claim for injunctive relief.

    Once again, Millerborg can amend, but to see why that might not matter it is helpful to look at another decision from a judge in the Northern District of Texas. In Bowman v. SWBC Real Estate Services, Case No. 3:23-cv-00970 (N.D. Texas) I represent a group of defendants. I moved to dismiss the case based on standing, a motion granted by Judge Brantley Starr (4). Judge Starr began by dismissing claims that rested on discrimination in the rental of an apartment for the simple reason that Bowman did not allege an intent to rent. He then went on to consider the broader prohibition on discrimination in 42 U.S.C. §3604(f)(2). In this analysis Judge Starr distinguished the parts of the apartment complex open to the public and the parts that were intended only for tenants. Areas like the leasing office that were open to the public were “fair game” for a claim by someone like Bowman who never intended to rent. Those that were only for tenants were not, because of course only someone who wanted to rent an apartment would ever care about these areas.

    Turning back to Millerborg v. Blue Bonnet Trail, consider what the distinction between areas open to the public and areas only for tenants means in terms of injunctive relief. The threat in FHA design build cases is that the owner will have to spend a fortune on remediation if it turns out that dozens or hundreds of apartment units were all designed or built wrong and must be fixed. The threat represented by the cost of fixing public areas is much smaller, usually involving only a few parking spaces and perhaps one set of restrooms in the leasing office. If a plaintiff like Millerborg is not entitled to injunctive relief related to areas that are only for tenants the threat posed by the lawsuit is relatively small and the claims for injunctive relief can be (usually) made moot at a fairly small expense. That leaves the plaintiff and his attorney pursuing a case that will not justify a huge expenditure on attorney and expert fees and does not pose a huge risk to the defendants. This means the defendant can take the case to trial with a diminished risk of a truly terrible outcome. Being able to take a chance on trial is important because while a motion to dismiss must assume what the plaintiff alleges is true, at trial the plaintiff has to prove the allegations are true. It is one thing to plausibly allege you intend to go back to an a apartment complex when you never intended to rent an apartment. It is quite a different thing to persuade a judge or jury that you really will go back.

    The distinction drawn by Judge Starr between areas open to the public and areas only for tenants, combined with Judge Godbey’s holding that a plaintiff is only entitled to injunctive relief with respect to conditions that might cause them harm in the future should lead to the conclusion that in FHA tester cases the possibility of injunctive relief is limited to areas open to the public. That makes the litigation risk manageable.  Millerborg v. Blubonnet Trails is still just one district court opinion, but it creates a solid argument that other judges should find persuasive about why a tester may have standing to sue, but does not have standing to seek more than limited injunctive relief.

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    ¹ See my blog Transunion v Ramirez – has the Supreme Court put an end to cheap standing in ADA litigation? and others you can find by searching for “Transunion”

    ² See my blog Stigmatic Injury and Laufer v Looper 1 and Laufer v Looper 2.

    ³ Thanks to Rachel Barlotta of Baker Donelson for calling the case to my attention.

    (4) Bowman did file an amended complaint and my motion to dismiss that amended complaint is pending.


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  • HUD was wrong about pet deposits – it’s as simple as that.

    sad looking dog with caption "I need some emotional support."

    I’ve written quite a few times in the last decade about the absurdity of HUD’s position that landlords cannot charge a fee or deposit for an assistance or emotional support animal.¹ HUD’s position has never made sense because asking for the waiver of a fee or deposit is just another kind of accommodation claim that must be supported by a showing of a disability related need. I wrote those blogs before the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) making it clear that interpreting statutes and the constitution is the business of the courts, not regulatory agencies.  Before Loper Bright many courts deferred to statements by HUD as if they were binding or at least persuasive.  Loper Bright made it clear that the non-regulatory statements like HUD’s various guidances on accommodation requests are entitled to respect only if they have the power to persuade.

    On July 16, 2025 Judge Sarah Vance of the Eastern District of Louisiana considered whether HUD’s 2020 Notice concerning accommodations, and in particular pet fees met that standard² in Henderson v. Five Properties, LLC, Case No. 2:24-cv-00750 (July 16, 2025). (4) HUD’s approach to fees in the 2020 Notice is that they are not appropriate in any instance, no matter how reasonable or proportional and regardless of the circumstances of the requesting party. As authority HUD cited a 2004 Joint Statement on Reasonable Accommodations that discussed “extra fees and deposits” that might be charged for an accommodation. Judge Vance notes that this 2004 document does not explain or provide authority for its statement. She notes:

    “The Joint Statement is unpersuasive . . . because its consideration is not thorough, and it presents no reasoning to evaluate.”

    Moving from the 2004 Joint Statement to the 2020 Notice, Judge Vance notes that in the 2020 Notice HUD claims the 2004 Joint Statement is persuasive because later courts relied on it. However, the cases HUD cites in the 2020 Notice are not cases about pet fees, so they really prove nothing. A third case that mentioned the 2004 Joint Statement was not persuasive because it did not rely on the 2004 Joint Statement, concerned a different issue, and ultimately found only that there was a unresolved fact question about the specific case. Judge Vance also rejected other arguments that supposedly supported the 2004 Joint Statement. Her conclusion was that the 2020 Notice’s interpretations of the Fair Housing Act “do not contain the power to persuade.” Rejecting any absolute rule, Judge Vance found that whether waiver of an animal fee or deposit was required depended on a “fact specific . . . case by case determination.”

    At this point Judge Vance’s decision had reached the important conclusion that HUD’s 2020 Notice can safely be disregarded by a court looking at an animal or pet fee. That still leaves the question of what a plaintiff must prove to be entitled to waiver of an animal or pet fee. Judge Vance’s opinion is helpful on this as well. She finds that a plaintiff must prove that the requested accommodation is “is indispensable and essential to achieve ameliorative effects of her disability.”³ The plaintiff admitted that she could afford the fee if she was allowed to pay in installments, something the landlord had already offered. If she could afford it then waiver of the fee was not at obstacle to keeping her dog, and was therefore not indispensable and essential. For landlords this provides an easy to apply test because most landlords require information about financial ability to pay rent. A tenant who can afford the rent can probably afford a one time fee and can almost certainly afford the fee when it is broken into installments.

    On its face Judge Vance’s opinion  applies only to the specific guidance on pet fees contained in the 2020 Notice, but her application of Loper Bright means the opinion has importance beyond pet fees. It is fair to say that HUD’s 2020 Notice, like many of HUD’s other guidance documents, was issued based more on what HUD would have liked to be the law than any analysis of either the law or the science concerning assistance animals. The simple question –  “is there any support for HUD’s position that would make it persuasive” – will only rarely be answered “yes.” Loper Bright’s message that the courts are not obliged to follow unsupported HUD guidances is one that will almost always help landlords and other housing providers in dealing wiht animal accommodation requests.

    If you want to know more about emotional support animals and the Fair Housing Act and other federal laws mark your calendar for October 8, 2025 at 2:00 p.m. eastern time when I’m presenting a one hour webinar, “Fact, Fantasy and Fraud, Emotional Support Animals under the Fair Housing Act.” Details will be announced as the date approaches.

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    ¹ See, “Unconventional Wisdom” from 2014, “Good News” from 2017, and  Georgia Court of Appeals from 2023.

    ² The guidance in question is HUD’s “Notice of Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation under the Fair Housing Act,” FHEO 2020-01, (January 28, 2020).  I wrote about this document in “HUD’s new Guidance on assistance animals will encourage emotional support animal fraud” a prediction that has proven true.

    ³ That standard was adopted by the Fifth Circuit in Women’s Elevated Sober Living L.L.C. v. City of Plano, Texas, 86 F.4th 1108, 1112 (5th Cir. 2023).

    (4) In the interest of full disclosure I have an interest in this decision and the lawsuit because the “attorney” referred to on page 3 of the Opinion was me.


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  • Just a few quick notes on ADA website lawsuits.

    I noted this headline in my Google news feed this afternoon: “Attorney involved in dozens of ‘sue-and-settle’ lawsuits around KC may have web accessibility issues on his own sites.” The story was pretty much as expected. Attorney Kevin Puckett files 90 lawsuits for a single plaintiff who claims to be disabled. The attorney’s own website is reported to be not WCAG 2.1 conforming, but I suppose his client won’t sue him – why bite the hand that feeds you? You can draw your own conclusions about a lawyer who claims to be an advocate for those who are disabled but doesn’t make his own websites accessible. There are a couple of surprises. First, as the local news reports: “KMBC has learned Myers [the plaintiff] lives on Puckett’s [the lawyer’s] family property and rents a trailer from Puckett’s relatives.” That’s an interesting relationship. Second, the local news reports that cases filed by Puckett have settled for as much as $40,000. The going rate for ADA website settlements is between $2500 and around $15,000, with top dollar going to a few firms in New York and Pennsylvania who have been in the business for a long time and have a demonstrated ability to prosecute the cases through trial. There are many reasons to hire a lawyer who specializes in ADA defense, but perhaps the most important is that knowing the going rate for settlement can save a lot of money. ADA website cases often look scary, with high remediation costs and the potential for even higher legal fees. I can’t read Mr. Puckett’s mind or know his intentions, but in my experience over the last ten years most plaintiff’s attorneys are just trying to make a quick buck and will be happy to make a handsome profit off a few hours work. Knowing that can make all the difference.

    You can read the original news story here:  Kansas ADA lawsuits.

    Just as I hit “publish” on this blog I got another headline, this from a law firm website: “ADA Defense Lawyer: A big win against abusive ADA lawsuits. Recovering Attorney’s Fees in ADA and Unruh Act Cases.” The blog describes what amounts to a total victory for the defendant, whose lawyers, Stuart Tubis and Martin Orlick, were awarded more than $57,000 for winning at trial and an additional $84,000 for winning the appeal. It is very difficult to win defense fees in ADA and Unruh Act cases, so they clearly did a good job of showing the plaintiff was not just wrong, but acted in bad faith.

    If you have been sued under the ADA and are willing to spend more than a hundred and fifty thousand dollars winning then I would like to be your lawyer, but what I said about settlements above is important for those clients who just want to get out of a lawsuit that probably never should have been filed. You don’t have to take a case to trial or spend tens of thousands of dollars to get a settlement that is really annoying but cheaper than fighting. We need clients like the defendant in the above case who will take it upon themselves to remind serial filers that industrial litigation has risks, just as we need lawyers who will take the case and win. But what most businesses need is a lawyer who will tell them that the best way out may be a quick settlement.

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