ADA and FHA Defense

Coming on the heels of my presentation of this title (available at Trump and Disability Rights) HUD and Senator Elizabeth Warren have both made significant announcements about fair housing enforcement.

On September 17 HUD announced that it was withdrawing a number of guidance documents, including FHEO 2013-01 and 2020-01 and concerning assistance animals. These guidances were never a model of clarity and were in some cases inconsistent with the law,¹ so housing providers will not be sorry to see them go. However, the confusion they caused was important only because it reflected HUD’s attitude toward assistance animals in its investigations, and for the rest of this administration, at least, HUD has more or less bowed out of the fair housing enforcement business. The September 17 announcement  includes HUD’s statement that it is now “Prioritizing cases with actual, provable instances of discrimination.” ESA and other accommodation cases are not easy to prove, and of course HUD’s 70% reduction in its fair housing investigations staff won’t make enforcement any easier.

That is the point of Senator Warren’s demand for an investigation into HUD’s fair housing enforcement. Based on allegations by whistleblowers within HUD Senator Warren wants HUD’s inspector general to investigate claims it is not enforcing fair housing laws. This investigation of HUD by HUD seems doomed from the start but the back and forth between HUD and fair housing advocates like Senator Warren points out two underlying problems with HUD’s enforcement of the disability discrimination provisions in the Fair Housing Act. The first is simply that fair housing enforcement is not cheap. HUD’s cuts to its investigative staff were part of a gigantic across the board budget cut that doesn’t seem to have been aimed at disability rights any more than it was aimed at other HUD initiatives.  Even the most impartial investigation might conclude that HUD simply no longer has the money to enforce the law.

The second is that HUD has not proven especially good at dealing with animal accommodation requests. FHEO 2020-01 was almost incomprehensible because HUD was wrestling with problems it did not have the expertise to handle, including questions about the effectiveness of emotional support animals and the definition of “handicap” under the Fair Housing Act. HUD’s attitude, at least until this administration, was that claims of handicap were prima facie true, as were claims that emotional support animals were necessary for equality of housing opportunity. Courts require evidence; HUD was content with allegations, in part because HUD is not an agency with in-house expertise in the diagnosis of mental disorders or in the science of human-animal interactions. This is unlikely to change under this administration, which has little inclination to listen to experts anyway.

For housing providers the news remains unchanged because the law remains unchanged. The risk of HUD enforcement in ESA cases is lower because of changes in policy and budget, and for the next three years or so housing providers can take a more aggressive approach to the evaluation of ESA requests without risking an expensive investigatory process. That general observation has to be tempered with the knowledge that private enforcement is still available and expensive to defend. Housing providers should not assume they can deny every request now that HUD is more or less out of the picture; instead they should continue to follow what has always been the best policy: evaluate each claim for accommodation on its merits, develop a record of reasonableness in responses to such claims, and deny claims based on their merit and the risk of litigation.

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¹ See my blog HUD Guidance will encourage fraud.