Press releases from HUD and DOJ in the last week or so contain plenty of lessons for the owners of businesses subject to the ADA and FHA. I can’t say whether these new claims by the government will pan out, but the nature of the claims made provides some insight in how to get into trouble or, more important, stay out of trouble when dealing with these agencies.
We’ll start with a HUD Charge of Discrimination¹ concerning emotional support animals. I’ve made my opinions about this subject clear² but this Charge wasn’t based on the quality of the verification of disability and need; it was based on the landlord’s failure to engage with the prospective tenant. According to the charge of discrimination the landlord simply refused to talk to the prospect when, during their first meeting, the prospect did not have a medical verification in hand. HUD believes in what it calls the “interactive process” in which the landlord and tenant try to work out their differences. The process may not succeed, but HUD believes it should be tried. Nothing in the law requires that a landlord engage in the process and many landlords, annoyed by what they perceive as fake requests, would rather not engage. Nonetheless, as a practical matter engaging with the tenant does two very important things. First, if a complaint is eventually filed it shows HUD the landlord was at least trying. Second, it gives the landlord a chance to develop a record showing that the request is not justified, thus leaving open the possibility of an accommodation denial HUD will accept. Refusing to engage is an almost sure fire way to end up with a charge of discrimination no matter how weak the tenant or prospect’s claim may be.
Next up, a Complaint filed by the Department of Justice against LA Fitness.³ The Complaint alleges a number of failures to meet ADA accessibility standards, but the heart of the Complaint is simply that LA Fitness installed the pool lifts required by the ADA but did not bother to maintain them. A pool lift that doesn’t work isn’t any better than no pool lift at all so DOJ claims the lack of maintenance was an ADA violation. There were also allegations that elevators and accessible showers were not maintained. I don’t know why multiple LA Fitness locations might have failed to maintain features required by the ADA, but deferring maintenance often seems like a good way to preserve cash flow by minimizing operating expenses, especially if there is something like a pool lift that isn’t in constant use. The problem is that while no business owner is required to make sure everything works 100% of the time, items required by the ADA cannot be out of service for any significant length of time because if these features don’t work those with disabilities are denied the use of the facility. Pool lifts and similar ADA aids are not a good choice for deferred maintenance.
The Complaint also alleges numerous failures to the meet the ADA design standards that do not relate to maintenance but, if the allegations are true, show either carelessness or ignorance. It doesn’t cost any more to install a toilet paper dispenser at the ADA required location than to put it a few inches too high or low, and the same is true of coat hooks, soap dispensers and even sinks. The problem with items like these, and many others, is that the individuals responsible for carrying out the work of building a gym or other public building do not know what the standards are and even if the plans show exactly how things should be built the workers don’t understand why it matters. ADA compliance don’t end with having good plans; it also requires constant supervision by managers or supervisors who understand why the plans need to be followed.
Whether the claims are true or not there are two takeaways from U.S. v Fitness International, LLC d/b/a LA Fitness. First, those who manage businesses subject to Title III of the ADA and make decisions about maintenance need to understand what the ADA requires and why some features must take priority in the maintenance budget even if they don’t seem to be important to most customers. Second, those who supervise the construction of facilities open to the public need to understand that many features whose location doesn’t seem especially important must nonetheless meet the ADA’s technical standards. I don’t know of any business that intentionally discriminates against those with disabilities, but intent is not an element of a Title III claim and staying out of DOJ’s cross hairs requires being aware of what the law requires at both the top and bottom of any organization.
Speaking of ignorance, we can finish with two more HUD charges of discrimination based on emotional support or assistance animals.(4) In one the owner and manager of an RV Park refused to allow a tenant to keep an emotional support animal that exceeded the Park’s weight limit and insisted that even if it did not there would be additional rent. HUD doesn’t believe that emotional support animals and service animals can ever be subject to weight limits or fees. There are solid legal arguments for why HUD is wrong about fees and a landlord willing to pay the cost of a fight might eventually win. However, no landlord that wants to avoid a HUD charge should ever refuse an animal because of size alone. From the correspondence quoted in the charge it seems clear the landlord had no understanding at all about what the FHA requires.
The other Charge, if the allegations are true, shows something I see pretty often; that is, a little bit of knowledge put to bad use. In the course of denying a request for an emotional support animal the landlord trotted out all the right excuses – undue burden, fundamental alteration of the landlord’s business, increase in insurance premiums, and direct threat to the safety and health of other employees. The problem, it appears, is that none of these excuses was justified by the facts. HUD does not believe that requiring a “no pets” apartment complex to accept an assistance or service animal is a “fundamental alteration” of its business or an undue burden, and courts seem to agree. An insurance policy that forbids certain dangerous breeds is an excuse not to accept those breeds, but only if the landlord has looked for other insurance. In this case there doesn’t seem to have been evidence the dog was a dangerous breed. Finally, except in extreme circumstances animal allergies and phobias do not turn an assistance or service animal into a direct threat to health and safety. A little bid of “knowledge” about how landlords can avoid allowing animals is just as dangerous as complete ignorance, especially if that “knowledge” comes directly from the internet. It is unfortunate the landlords need to pay lawyers who have real expertise if they want to refuse an animal accommodation request without excessive risk, but it is a fact.
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¹ You can read it at Charge of Discrimination
² See, for example, Science v HUD
³ You can read it at LA Fitness Complaint
(4) You can read the charges HERE and HERE
