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
ADA
Quick Hits – What the courts are doing edition . . .
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Internet Web, ADA Mootness, ADA Point of Sale, ADA Policies, ADA Web Access
Although you wouldn’t know it from watching the news many of the 677 federal judges in the U.S. are working on cases that don’t deal with how to count votes. Here’s a look at what they’ve been up to.
Eleventh Amendment abrogation for ADA claims
In Natl. Assn. of the Deaf v. Fla., 2020 WL 6575040 (11th Cir. Nov. 10, 2020) the Eleventh Circuit held that Congress validly abrogated 11th Amendment immunity with respect to the State of Florida’s legislature, a holding that may eventually lead to a requirement that public legislative sessions be made accessible to those with hearing disabilities. The arguments are too complex for a Quick Hits blog, but it is notable that the Court found that Congress had the power to abrogate state immunity even when no fundamental right is at issue. The case seems destined for a newly constituted Supreme Court, so stay tuned. More
HUD gets it wrong again on emotional support animals – two is one too many.
By Richard Hunt in ADA, FHA, FHA Emotional Support Animals Tags: charge of discrimination, Emotional Support Animal, Fairfield Properties, FHA Defense, Pinewood Estates, reasonable accommodation
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
Disability, criminality, and disparate impact under the FHA – brewing a tempest in a teapot.
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.
The Online Accessibility Act of 2020 – does it do what it needs to do?
By Richard Hunt in ADA, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Litigation Procedure, Rehabilitation Act, Section 508 Web Access Tags: ADA defense, ADA website accessibility, ADA Website Litigation, Online Accessibility Act, Representative Lou Correa, Representative Ted Budd
On October 2, while the news covered President Trump’s admission to Walter Reed for treatment of Covid-19, Congressmen Lou Correa (D-CA) and Ted Budd (R-NC) introduced the bipartisan Online Accessibility Act, which they claim will “increase website accessibility and reduce predatory lawsuits filed against businesses.”¹ Will it work? That’s a reasonable question.