Once again – as in past Memorial Day editions – I’m firing up the grill with hundred dollar bills in honor of the money wasted on lawyers, who are the only ones who really benefit from most ADA and FHA litigation. There are, however, some cases dealing addressing important substantive issues, and few in which Courts seem ready to turn the ADA and FHA into laws to help people instead of laws to make lawyers rich. More
FHA Emotional Support Animals
By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA regulations, ADA Website Accessibility, Animals, Animals, FHA Emotional Support Animals, FHA Guidance, FHA Regulation, Internet Accessibility Tags: ADA 2020, ADA defense, COVID-19, Emotional Support Animals, FHA 2020, FHA Defense, Usablenet
Here’s a toast to the end of a bad year. I don’t know anyone who won’t be happy to see 2020 behind us, but it’s worth looking back at how the law of accessibility developed in the last year.
Fair Housing Act developments were bracketed by two events, one of which was scarcely noticed but could be important. In February, to considerable fanfare, HUD rolled out its new Guidance on requests for accommodation concerning animals.¹ Its many disclaimers about not being a regulation and not having any binding effect were not enough for the U.S. Government Accountability Office, which opined on December 17, 2020² that the Guidance violated the Congressional Review Act because it was not submitted to Congress for approval before it took effect. It is not surprising that HUD ignored the law, but HUD often ignores both science and the law, so to the extent the Guidance reflects what HUD’s investigators will do it provides some useful information on staying out of trouble in a HUD investigation even if it isn’t helpful as a guide to complying with the FHA. More
The Department of Transportation has issued it final rule concerning in-flight rules for animals helping those with disabilities.¹ The bottom line is straightforward. Airlines are only required to permit dogs trained to perform a specific disability related tasks in the cabin of their aircraft. This adopts the same restriction that the Department of Justice has long had in place for Title III public accommodations under the ADA (except that DOT, unlike DOJ, does not recognize miniature horses as service animals). In addition to limiting the kind of animal airlines are required to transport the DOT regulations permit airlines to do some things that DOJ would ordinarily not permit in a Title III context, including: More
On October 7, 2020 HUD filed a charge of discrimination against Fairfield Properties and Pinewood Estates at Commack Condominium because they denied an accommodation for two emotional support dogs. FHEO No. 02-17-5246-8. The Charge includes the facts, which don’t seem to be disputed. It does not include an explanation of how HUD thinks these facts constitute discrimination, but HUD’s thinking on the subject can be inferred from the Charge and shows why landlords and condominium or owners associations must be careful even when dealing with truly meritless requests. HUD is perfectly capable of making a charge of discrimination that cannot be reconciled with the text of the Fair Housing Act or the case law interpreting it. That’s hardly news, but it is worth remembering. More
By Richard Hunt in Accessibility Litigation Trends, ADA, FHA, FHA Emotional Support Animals, FHA Reasonable Accommodation, FHA Regulation Tags: CoreLogic, criminal conviction screening, FHA Defense, HUD discriminatory effect, HUD disparate impact, Inclusive Communities, National Fair Housing Alliance v. Carson, Vanessa Bryant
The recent decision from Judge Vanessa Bryant in Connecticut Fair Housing Center v. CoreLogic Rental Property Solutions, LLC, 2020 WL 4570110 (D.Conn. August 7, 2020) was followed only weeks later by HUD’s final regulation on disparate impact claims, 85 FR at 60288, September 24, 2020.¹ The CoreLogic decision’s most important holding was that a third party tenant screening service could be liable for providing information that had a disparate impact on a protected class, but Judge Bryant’s denial of a slew of defense motions for summary judgment was a reminder of the potential power of disparate impact claims. HUD’s new regulation, titled “HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard” creates a set of landlord friendly rules for disparate impact claims that may make CoreLogic irrelevent.
NOTE: on October 22, 2020 the National Fair Housing Alliance and others filed National Fair Housing Alliance v. Ben Carson, Secretary of the Department of Housing and Urban Development, Case No.3:20-cv-07388 in the United States District Court for the Northern District of California. The lawsuit attacks the legality of the new HUD regulations on numerous grounds. (the Complaint is 66 pages long). It was presumably filed in a plaintiff friendly court, and the Ninth Circuit is a civil rights friendly circuit, but the legality of the rule will ultimately go to a Supreme Court that is far less friendly to civil rights legislation. If there is a change of administration in November this regulation is likely to be short lived, so housing providers should probably not make too much of it until we know where the political winds will decide to blow.