The Department of Justice issues a press release every time it enters into a settlement agreement of some kind. The foundations of accessibility law are the statutes and the cases applying them, but there are a lot of practical lessons to be learned from the settlements obtained by the DOJ, so it is worth looking at them.
We can start with a result that seems startling, the case of the emotional support parrots.(4) United States v. Rutherford Tenants Corp. arose out of an apartment coop’s denial of the accommodation sought by one of the owners, Ms. Lesser, to keep a pair of emotional support parrots. The amount of the monetary award has grabbed headlines(5) because $165,000 in emotional distress damages is six or seven times the average award in fair housing cases in the Southern District of New York.(6) Understanding how this case ended up as a headline maker contains some important lessons for all owners associations.
Accepting the allegations in the complaint as true, Ms. Lesser kept her parrots for at least 16 years without incident. Then, in 2015, there were a string of anonymous complaints about noise from the parrots. The New York City agency that investigates noise complaints did so fifteen times and found that while the parrots could be heard, the noise was not “loud, unreasonable or excessive.” A nuisance inspection similarly found no violation. Ms. Lesser also spent money adding soundproofing of various kinds to the apartment and notified the coop board that she was requesting an accommodation for her disability. The board refused to even consider the accommodation and, despite the lack of objective evidence of a problem, began eviction proceedings. Ms. Lesser moved out but continued paying maintenance and utility fees. When Ms. Lesser filed a complaint with HUD the coop board agreed to stay (but not dismiss) the eviction proceedings. However, a few months later it began including in the monthly maintenance charges its legal fees, which began at more than $60,000. After a few months it had the relative good sense to remove these additional charges. Ms. Lesser, apparently fed up, applied to sell her unit to a doctor who met any reasonable requirement for ownership. The board rejected the application without explanation. It sounds a lot like the board was mad at Ms. Lesser for asserting her rights.
HUD found based on these facts there was cause to believe the board discriminated against Ms. Lesser based on her disability and retaliated against her for requesting a Fair Housing Act accommodation. That pushed the case to DOJ, who filed suit. From the docket sheet it is clear the coop fought the case with considerable vigor before finally agreeing to settle on the basis that it would pay Ms. Lesser $165,000 in damages, purchase her apartment for $585,000 (thus paying her a hundred thousand dollars more than she would have gotten from the rejected purchaser) and make a number of changes in the way it handled disability accommodation requests, including five years of reporting on its compliance to the Department of Justice.
What lessons can be learned from this? The first is that owners association are subject to the Fair Housing Act. It is surprising how many owners association boards don’t know the FHA applies to them and that it may forbid them to enforce their rules. Second, don’t try strong arm tactics during a HUD investigation. When I see large awards in favor of someone who requested an accommodation it is almost always because the association or landlord tried to evict the resident after they requested an accommodation and/or began imposing substantial fines during the investigation. The time to evict or impose fines is after you persuade HUD that you were entitled to deny the accommodation. A perfectly defensible denial of an accommodation request can easily turn into an impossible to defend claim of retaliation if an owner or manager decides to strictly enforce their rules before HUD has completed its investigation.
That leads to the final lesson, which is that you cannot exercise economic leverage against someone who at least potentially has HUD and DOJ on their side. It costs nothing to file a complaint with HUD and if a claim seems to have any merit at all HUD will step in to stop an eviction and has the power to seek other kinds of injunctive relief as well. You can win a case brought by DOJ under the Fair Housing Act, but it won’t be by trying to outspend an agency with a budget of around $67 billion dollars a year. “She can’t afford to fight with us” is a phrase I’ve often heard, and it almost never turns out to be true.
Now let’s turn to the ADA and the case of a chain of eating disorders clients alleged to have violated the ADA by refusing to modify their usual program to take into account the disability related dietary needs of a potential customer.¹ The DOJ press release announces an agreement requiring that the clinics be prepared to meet those needs by stocking foods that do not include what DOJ says are ingredients “commonly restricted for people with disabilities” including “sugar, caffeine, nuts, lactose or dairy products, gluten, eggs, soy, and fish/shellfish.” This seems obvious enough; if you are running an eating disorders clinic your customers are likely to be people who suffer from diabetes or other disabilities that restrict their diet. The customer got $15,000 for her trouble, which is within the common range for this kind of case.
So how did a customer request for a special diet turn into a DOJ investigation and settlement? There is no way to know the whole story, but I think there is a clue in one sentence from the settlement agreement. The respondent:
“agrees not to penalize or admonish or discourage a patient from requesting a modification.”
A specific provision like this makes it sound like somebody on the staff didn’t just say “no” to a request, and decided instead to scold the customer for even asking. Depending on how proud the clinics are of their program it isn’t hard to imagine a staffer suggesting that if the customer didn’t like it she could go elsewhere. We can’t know what really happened, but it is the kind of behavior that turns a merely unhappy customer into someone willing to file a DOJ complaint.²
The takeaway for all ADA Title III public accommodations is simple. If a customer claims to have a need based on a disability at least think twice about it before you turn down their request. It may be unreasonable or fall into the inventory exception³ for modification requests, but make sure you’ve thought about it before you say “no,” and never treat the customer badly in the process. The customer may not always be right, but the ADA requires that their requests at least be taken seriously.
I’ll finish with a press release from October of 2023, that is very typical for cases involving alleged failures to design and build apartments to meet FHA accessibility standards. The owners and developers of 17 apartment complexes agreed to pay a total of $660,000(7) to settle claims the apartments did not meet the accessibility standards in the Fair Housing Act. The problems, which are very typical in this kind of case, involved sidewalks with excessive slopes, doorways that were too narrow and bathrooms that were too small. It is a little suprising that these problems existed because all of the 17 projects were funded with assistance from the Low Income Housing Tax Credit program. That program requires inspections to confirm the property meets FHA standards.
What went wrong? The first lesson from this settlement is that developers should not rely on an inspection done to approve funding as protection from later litigation. Inspections for funding are usually pretty sensible. Apartments do not have to be perfect to be accessible and inspectors will pass a building that has a few units that don’t quite meet an FHA safe harbor; in fact, they almost never inspect more than a sample of the various units. If the plans meet FHA requirements the inspector may never see as built problems that occur in only a few of the units. When a complaint is filed, on the other hand, DOJ’s experts require perfection or something very close. Owners and developers looking for real protection against litigation need to understand the scope of their financing investigation and consider what additional inspections they may want to request on their own account.
An equally important lesson; one that developers learn all the time, is that if the plans specify the absolute minimum required to meet FHA requirements then there will be features that fail to meet those requirements. Construction isn’t rocket science, and acceptable industry tolerances can easily create conditions that are within industry tolerances but not considered acceptable by DOJ. I defend these cases all the time and the same problems come up over and over again. Sidewalks are not specified to have the correct slopes and even if they are the sub-contractor that pours the sidewalks doesn’t think the difference between a 2% cross slope and a 3% cross slope matters. Somebody doesn’t know that a long sidewalk with an 8.33% slope needs to have handrails. Narrow doorways are very common because designers don’t fully understand that a standard 32″ door can be too narrow to meet the 32″ clearance standard in the FHA safe harbors. If bathrooms are specified to be exactly the minimum size necessary to meet FHA requirements then some of them will inevitably be a little too small, just as some will inevitably be a little too large. To design apartments whose as built condition meets an FHA safe harbor generally requires making everything a little bigger so the construction doesn’t have to be perfect.
There you have it, three press releases, all with valuable lessons for businesses subject to the ADA and FHA. I’d like to say the overriding lesson is hire a good lawyer (hint hint) but it is really more basic. Know which laws govern the way you do business, and take compliance seriously. They say ignorance is bliss, but the bliss doesn’t last long if when it comes to the ADA and FHA.
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¹ Eating Disorder Clinic Press Release
² The customer must not have been too badly treated – the settlement calls for a payment to the customer of $15,000, which is very low compared to the cost of defending an ADA lawsuit brought by DOJ. Treating people really badly leads to very big settlement payments as shown by the press release issued only a few days earlier. FHA Sexual Harassment Settlement
³ DOJ regulations provide that public accommodations do not need to stock special inventory to meet the needs of disabled patrons. 28 CFR §36.307. Under some circumstances a public accommodation must be willing to special order goods for its disabled customers, so this exception requires some thought as well.
(4) For the details read the Consent Decree at Emotional Support Parrots
(5) See,Rutherford Co-op to Pay $165,000 for Violating Fair Housing Act
(6) On this I’ll take the liberty of quoting from a brief I wrote on this subject:
Courts performing reviews of jury verdicts in discrimination and retaliation cases have noted that with “so-called ‘garden variety’ mental anguish claims, … awards hover in the range of $5,000 to $30,000.” Bick v. The City of New York, 1998 WL 190283, at *25 (S.D.N.Y. Apr. 21, 1998); see also McIntosh, 887 F.Supp. at 668 (noting that at oral argument, counsel for the plaintiff conceded that the most common award of compensatory damages under the NYHRL ranged between $5,000.00 to $10,000.00) Fowler v. New York Transit Auth., 2001 WL 83228, at *13 (S.D.N.Y. Jan. 31, 2001), and see Rainone v. Potter, 388 F. Supp. 2d 120, 122 (E.D.N.Y. 2005) [“At the low end of the continuum are what have become known as “garden-variety” distress claims in which district courts have awarded damages for emotional distress ranging from $5,000 to $35,000.”]
(7) This is large, but not surprising in a case involving a large number of apartment units where the money will be used in part for remediation.
