Williams v Kincaid, 2022 WL 3364824 (4th Cir. August 16, 2022) is not the first case to consider gender dysphoria as a disability, and marks the second time the Fourth Circuit has considered the difference between gender identity and gender dysphoria.¹ However, as a circuit court opinion holding that gender dysphoria can be a disability covered by the ADA it has special prominence, not only because of its possible effect on individuals suffering from gender dysphoria, but also because of what it teaches about interpreting the ADA in light of changing science and technology and the possible need for updating the ADA’s definitions in light of those changes.
Accessibility Litigation Trends
FHA and ADA Quick Hits – afternoon showers edition
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Internet Web, ADA Litigation Procedure, FHA, FHA design/build litigation, Internet Accessibility Tags: ADA defense, Apex Trial Law, FHA Defense, Martinez v Cot'n Wash, Pacific Trial Group, Red Rocks
August is (in Texas at least) the month of afternoon thunderstorms. It’s a good metaphor for running a business subject to the ADA or FHA. Everything’s sunny and warm one minute then suddenly the wind is blowing and you are soaking wet. But the plants need the rain, so as usual there’s good and bad in ADA and FHA developments.
Unruh Act and the Internet – half a loaf is better than none.
You can read a detailed analysis of Matinez v. Cot’n Wash in Bill Goren’s blog “Gateway is Everything in California” so I’ll just hit the highlights. There is an ongoing controversy about whether the Americans with Disabilities Act applies to the websites of businesses with no physical facility open to the public. Some courts say yes and some say no. The Ninth Circuit, which covers federal courts in California, says “no.” As result the most prolific serial ADA filers, including the Pacific Trial Group and Apex Trial Law¹ turned in recent years to California’s Unruh Act and the California state courts, arguing that the Unruh Act does cover online only businesses. At least some lower California courts have agreed, but in Martinez v. Cot’n Wash one California Appeals court (there are six in all) said no, holding that the Unruh Act does not apply to the websites of online only businesses. This is big news coming from a state where thousands of serial ADA lawsuits and even more demand letters are sent every year. It isn’t the end of the road. While the decision is binding on lower courts, it isn’t binding on other California appellate courts or on the California Supreme Court, to which Marinez v. Cot’n Wash is likely headed. It also doesn’t apply to websites associated with physical facilities open to the public so it is not likely to lead to an immediate end of demand letters and lawsuits. California’s ADA litigation industry relies more on the threat of costly litigation than on the reality of winning and losing so until making a threat is sanctionable (which will require that the California Supreme Court speak) they probably won’t slow down. It likely though that the price of settlement will go down as it already has in face of other less dramatic losses in the last couple of years.
And for a different view of website accessibility.
What’s bugging HUD – the latest HUD actions based on disability
By Richard Hunt in Accessibility Litigation Trends, FHA, FHA Emotional Support Animals, FHA Policies, FHA Regulation, Landlord-tenant, Policies and Procedures FHA ADA Tags: Emotional Support Animals, FHA Defense, HUD charge of discrimination, HUD disability discrimination, service animals
HUD’s press releases are interesting reading, not because they help you understand the law, but because they help you understand what HUD thinks the law is, and because they are often object lessons in mistakes no housing provider should make. This is a round up of press releases in the last four or five months, each of which has its own lesson to teach. I’ve also included a discussion of HUD’s guidance on animal accommodations at the end based on Bill Goren’s recent blog on the subject.
Conditions on an animal accommodation are o.k., but there are limits.
HUD has charged an HOA in Wyoming with discrimination because while a housing provider like an HOA can impose reasonable conditions on an accommodation, it cannot impose unreasonable conditions. See. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_134 It’s worth taking a look at where this HOA went wrong, at least as HUD sees it, so others can avoid the same mistakes.
The first problem was the HOA’s evident hostility toward requests for accommodation for animals of all kinds. Instead of just asking homeowners who required an accommodation to request one, the HOA made a point of noting that it is a criminal violation of Wyoming law to misrepresent a service animal and specifically noting that other residents “do not like to see dogs” in the development. There is nothing wrong with a no-pets policy, but evident hostility towards those with disabilities is an FHA violation.
A second problem was inflexible demands for documentation in a specific form. Housing providers can request that a specific form be used for an accommodation request, but if the request comes in some other form it has to be evaluated in just the same way as a request on the right form. The specific requirements imposed by the HOA concerning the kind of information it needed were probably reasonable, but insisting that only a particular form be used to provide the information will never be acceptable to HUD.
Third, and probably most important, the HOA decided to retaliate against the complaining parties when they filed a complaint with HUD. As soon as the complaint was filed the HOA sent a letter to all residents criticizing the complaining parties for filing the complaint and suggesting that they lied about the status of their dogs. Nobody likes being on the receiving end of a HUD complaint, but the place to fight back is the investigation or litigation, not a public forum or some kind of public shaming. No matter how annoyed a housing provider is by a complaint that is or seems to be unjustified it will always be illegal to retaliate in any way. In fact, many complaints that originally had no merit at all turn into to very strong retaliation claims because of the response of the housing provider. It isn’t clear from the HUD charge of discrimination whether the HOA was represented by counsel, but an experienced FHA lawyer would certainly have advised them that they were going to have problems with HUD if they behaved as claimed in the charge of discrimination.
Being an awful person is likely to lead to a HUD charge or fine.
In early July HUD announced a $70,000 fine against a landlord who allegedly refused to rent to a family because their daughter had cerebral palsy and who had a history of posts on social media that expressed a prejudice against all children. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_131 The landlord didn’t appear to defend himself, so we only have HUD’s side of the story, but the lesson is clear. It isn’t against the law to be an awful person and hate people because they are disabled, but it is against the law to act out your awfulness as a landlord or housing provider. Landlords and other housing providers make mistakes, often because HUD’s internal standards don’t make any sense at all or because they don’t understand the law. There is, however, a difference that should be obvious to most people between a mistake and outright intentional discrimination.
Along the same lines, HUD resolved a charge of discrimination against a condominium management company that refused to waive its two person per bedroom limit for a family that needed temporary housing while one of the children had a bone marrow transplant. This was a settlement and we don’t know the management company’s side of the story, but it cost them more than $35,000 plus whatever they spent on lawyers after the complaint was filed. Reasonable occupancy limits are not discriminatory, but when a disabled child requires an accommodation landlords and HOAs need to think carefully about the optics and cost of refusal. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_109
Being awful plus a mistake? There’s a lesson here.
On July 1 HUD announced a conciliation agreement with a landlord that allegedly engaged in race and disability discrimination. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_122. Once again we only know HUD’s side of the story, but the disability discrimination claim is based on a situation that comes up all the time. The disabled tenant asked for a reserved parking space, presumably to shorten the distance from their parking space to their front door. The landlord refused, probably because of a no reserved parking policy. Providing a reserved parking spot is one of those accommodations that HUD, DOJ and the courts will almost always consider reasonable. There may be room to argue about whether the tenant is disabled or has a disability related need, but otherwise a refusal to provide reserved parking for the tenant is likely to trigger a finding of cause.¹
Service animal issues again, and the cost of being the bearer of bad tidings
HUD issued a charge of discrimination against a landlord and their leasing agent with disability discrimination because they refused to allow a blind woman’s guide dog due to a no pets policy. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_087 This isn’t even a close call for a reasonable accommodation, but what apartment and HOA managers need to note is that the leasing agent was also charged even though it doesn’t appear she did anything but relay the owners’ position on the lease. I’ve blogged about this before² and the lesson is worth repeating. If you are a leasing agent or manager and your owner insists that you carryout their discriminatory orders your best bet is to quit because otherwise you may have personal liability.
Design/build liability – reasonable modification for out-of-compliance buildings.
I recently settled a small dispute with a landlord that wanted a tenant to pay for the curb ramp needed for them to access their apartment. The landlord messed up, but their lawyers knew that when an apartment complex is covered by the FHA design/build standards then modifications to make it meet those standards are at the landlord’s expense. This isn’t an uncommon problem it seems since HUD just resolved a similar dispute with property owners in Hawaii. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_080 The rules are not complicated, but if you aren’t sure talk to a lawyer before you turn down an modification request. Here they are:
- For housing built before the effective date of the 2008 FHA Amendments the tenant bears the cost of accessibility modifications.
- For housing built after the effective date of the 2008 FHA Amendments the tenant bears the cost of accessibility modifications if they are something in addition to what the FHA standards require.
- For housing built after the effective date of the 2008 FHA Amendments the landlord bears the cost of accessibility modifications needed to bring the property into compliance with the FHA standards.
This last point applies even if the current owner is not liable for the original failure to build the apartments correctly. Another a good reason to require an accessibility survey before acquiring multi-family housing.
HUD believes in the interactive process – so should you.
HUD issued a charge of discrimination against a landlord and management company for refusing to even consider an accommodation for an “assistance animal” that would have violated a no pets policy. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_078 What stands out in this case is that the owners did not even start the accommodation process. I have real doubts about whether most or any assistance animal (as opposed to service animal) claims are legitimate because there is essentially no scientific support for the notion that emotional support animals provided needed help to those with various mental health disabilities. I’ve also found that most of the individuals requesting an accommodation for an emotional support animal are probably not suffering from a mental disorder that constitutes a disability. Having said that, refusing to even look at an accommodation request is going to trigger a charge of discrimination in every case. Refusing to engage in the “interactive process” is not discrimination according to the courts, but HUD believes it is and it is a long and expensive road from dealing with a charge of discrimination before HUD and finding a federal court that applies the law as written.³
Just how much deference should the courts give HUD’s guidance on assistance animals.
Bill Goren just blogged on the technical issue of the degree of deference courts should give HUD’s guidance on assistance animals (4) which reminded me of a general misunderstanding of reasonable accommodation law that lies behind some of the cases above. Bill asks the specific question of whether HUD’s belief that breed restrictions are not a valid reason to deny an accommodation would be deferred to by the courts. Breed restrictions get a lot of attention in the animal accommodation world, but the discussion usually misses the point. A breed restriction is just another rule that might have to be waived as a reasonable accommodation, and there is no such thing as a generic dangerous dog. Pit bulls may be more dangerous or aggressive than other breeds in general, but the only pit bull a landlord will be asked to accommodate is the specific pit bull belonging to a disabled resident. If it is a sweetheart then the characteristics of the breed don’t matter. I advise my clients to interview the dog as part of the accommodation process. If it barks and snaps at a stranger it might be dangerous regardless of its breed and if it is calm and placid the opposite is true. In addition, it is always possible to put conditions on an accommodation if necessary to make it reasonable. Just because a dog is allowed despite a no pets policy the landlord isn’t required to let it or the owner do anything they want. With rare exceptions you can require a dog to be on a short leash, only be in specific areas outside the apartment, not make noise or disturb the neighbors and so forth. Every accommodation request has to be determined based on the specific circumstances, including the nature of the disability, the behavior of the dog, the kinds of places the dog may need to go, or not need to go, in order to fulfill its function, and so on. When HUD says things like a landlord cannot impose breed restrictions or cannot charge a pet deposit HUD is making the same mistake landlords who impose hard and fast rules on accommodations make; that is, it is failing to recognize that the principle of reasonable accommodation is always based on balancing the tenant’s need against the landlord’s responsibilities and needs in an effort to find a compromise that works for everyone involved. Given the huge diversity of disabilities and disability related needs trying to impose hard and fast rules on accommodations is absurd. Bureaucrats and businesses both love rules, but this is a situation in which rules just cause problems.
¹ There is a difference between parking
² See, Shoot the messenger! Agent liability under the Fair Housing Act
³ I’ve blogged about recent cases holding that failure to engage in the interactive process is not itself actionable discrimination. FHA and ADA Odds and Ends
(4) See, Upon Further Review, the HUD Circular Just Might Survive Kisor as well as EPA v. West Virginia and be Given Judicial Deference I have blogged on this issue as well. See, Auer deference and the Fair Housing Act – does Kisor change anything?
The Meta Fair Housing Settlement: watch out for unintended consequences . . .
By Richard Hunt in Accessibility Litigation Trends, ADA FHA Litigation General, FHA Advertising, FHA Disparate Impact Tags: discriminatory advertising, Facebook settlement, FHA Defense, Meta settlement, unintended consequences
The Jurassic Park series of movies are all about unintended consequences. You can say the same thing about the Facebook advertising tools that were the subject of lawsuits against Meta. On June 21 the Department of Justice announced a settlement of claims against Meta related to Facebook’s advertising algorithms.¹ It is the second such settlement, the first having been obtained in a lawsuit filed by the National Fair Housing Alliance and other groups.² Both settlements are interesting reading for those who specialize in these subjects, but it is worth asking whether they will have any impact on other players in the real estate market. You don’t have to be a Meta, a Spectre, a T.H.R.U.S.H. or a Kaos(4) to for these settlements to have an effect on how you do business as a landlord, management company or real estate agent or broker. That’s because these settlements are aimed at new technologies, but rely on old fashioned legal principles that apply to all aspects of the housing market and to the unintended consequences of any kind of targeted marketing program.
To understand why you need to understand the legal issue behind the DOJ lawsuit, the NFHA lawsuit and the original HUD investigation of Facebook. The Fair Housing Act prohibits various kinds of discrimination in housing transactions, including what is called advertising discrimination. The relevant section (28 U.S.C. §3604(c)) covers more than just advertising, but the easiest to understand application is ads that show a preference for one group over another. “Whites only” or “Singles only” would be the most extreme examples.
But what if the advertiser is clever enough not to say “whites only” but wants to make sure there are no black applicants for an apartment? Facebook’s targeted advertising programs were tailor made for making sure that unwanted applicants didn’t apply for an apartment or try to buy a house but not being explicit about it. You don’t need to say “whites only” if you only advertise to whites. It didn’t have to be this blatant or deliberate though. Advertisements that target those who live in particular neighborhoods, or those whose children attend certain private schools, or even those who shop in certain stores could achieve the same effect. It also doesn’t have to be deliberate discrimination. If an apartment complex is designed to appeal to young single professionals the landlord may not intend to exclude families, but ads targeting the ideal market will have that effect. The claims made by NFHA, HUD and DOJ all concerned the notion that by providing the tools that facilitate discrimination Facebook was itself engaged in discrimination.
There is clearly a tension between the hyper-targeted marketing offered by Facebook and the inclusive marketing that serves the goals of the Fair Housing Act. The DOJ settlement resolves that tension by limiting the extent to which Facebook can offer highly targeted marketing. Facebook will not, in theory, be able to offer tools that let advertisers intentionally or unintentionally exclude individuals based on race, religion, gender, disability and other illicit categories. That doesn’t mean however that the settlement has nothing to say to parts of the housing industry that don’t rely on AI to place their ads. Here are some of the implications for the industry and beyond.
- Other social media and online advertising platforms will be sued by DOJ or by the host of law firms that latch on to any new kind of lawsuit that promises lucrative returns. These platforms should already by thinking about how they can modify their targeted marketing programs to meet the standards to which Meta has agreed.
- Advertising costs for real estate transactions will go up. Social media advertising is priced in part on the number of impressions of the ad displayed to users. One of the advantages of targeted marketing is fewer impressions are needed to generate the desired level of response. With less targeting advertisers will have to buy more impressions to generate the same level of engagement.
- The landlords, managers and brokers who place ads could come under attack. Remember that Section 3604(c) is aimed primarily at those who place ads, not those who publish them. If it is illegal to offer tools that permit discriminatory advertising it is certainly illegal to use those tools for discriminatory purposes.
- DOJ and others may attack advertising that is targeted by the choice of where it is displayed. Advertising on domestic websites written in languages other than English is an effective way to target only one ethnic or linguistic group. Ads posted on community oriented websites in Chinese, Vietnamese or Spanish will most likely never be seen by individuals who don’t speak those languages. Similarly, advertisements on Fox News and its local affiliates will be seen almost exclusively by whites.³ A landlord looking only for white tenants doesn’t need a sophisticated screening tool like those offered by Facebook. All they need to do is advertise only on websites, radio stations and television stations that appeal only to whites.
Finally, there is an extension of the principles behind the Meta settlement that goes beyond the housing market. EEOC and DOJ have recently suggested that AI based systems for finding employees can be discriminatory(5). Almost all businesses open to the public are subject to the prohibitions against discrimination in the ADA and the Civil Rights Act of 1964. These businesses use targeted marketing to attract individuals they think they are likely to sell to, but that marketing necessarily excludes others, and the exclusion may be largely of individuals of a particular race, ethnicity or religion. As in the housing market, what seems like innocent targeting of groups to which no objection can be made might also turn out to eliminate all or most of the members of some group against whom discrimination is illegal.
But returning to the housing industry, high profile settlements like these can serve to deter unlawful conduct, but they also serve to encourage litigation. Housing professionals should evaluate their advertising and marketing policies to decide whether they might have an unintentional discriminatory effect and whether they can be justified on grounds unrelated to discrimination. Discrimination can be an unintended consequence of targeted advertising. Another perhaps unintended consequence will be more strike suits. Where DOJ leads others with less worthy motives are sure to follow.
¹ See, Justice Department Secures Groundbreaking Settlement Agreement with Meta Platforms, Formerly Known as Facebook, to Resolve Allegations of Discriminatory Advertising
² See, Fair Housing Groups Settle Lawsuit with Facebook: Transforms Facebook’s Ad Platform Impacting Millions of Users
³ See, Fox News’s Audience Almost Exclusively White as Network Faces Backlash Over Immigration Coverage
(4) Knowing just how humorless Meta and its owners are I’m sure they won’t get the joke. No, I don’t think Meta is a worldwide organization devoted to doing evil. Like the computers running the algorithms attacked by DOJ, Meta is just a very complicated machine for making money whose actions may have unintended consequences.
(5) See, The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees
Quick Hits – If you’re going through hell edition.
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA Attorney's Fees, ADA Internet Web, ADA Litigation Procedure, ADA service animals, ADA Vending Machines, ADA Web Access, FHA Emotional Support Animals, HOA, Public Facilities, Reasonable accommodation, Rehabilitation Act Tags: ADA class actions, ADA defense, ADA Mootness, FHA Defense, nexus requirements, self-service kiosks, standing to sue, William Goren
Dante’s hell was a complicated place, as this map by Botticelli suggests. Although Rodney Atkins’ advice “if you’re going through hell, keep on going” appears sound, winding through all the complexities of the ADA and FHA can seem like descending through all nine levels of hell. Nonetheless, I’m happy to act on a temporary basis as Virgil and see how far we can get. No promise about whether we’ll find a Beatrice to take you to Paradise. More