ADA and FHA Defense

On December 5 (2025) I argued a fair housing case before the Connecticut Supreme Court. The details are important, but not for this blog.  I say that because during the argument it occurred to me that it is easy, while cataloging and describing all the trees in the forest to forget that it is a forest, not just a collection of trees. Today I’m going to step back and look at the FHA, ADA and other disabilities rights laws to remember what makes them different from other anti-discrimination laws and the reasons for those differences.

Most anti-discrimination laws, including those concerning disabilities, are intended to forbid unequal treatment in political, social and economic life based on irrational distinctions with deep historical roots. Irrational distinctions are those based on untrue ideas about what people can and cannot do. We are not all equally smart, strong, or otherwise qualified to make good decisions at the ballot box or do this job or that, but that inequality is not related to the color of our skin, our religion, our national origin, our gender, or similar distinctions that once seemed to matter. This means it is irrational to prefer one race¹ over another in hiring, or to prefer one religion over another when renting an apartment. This can be put in moral and religious terms, but the underlying principle is that making distinctions based on things like skin color or ethnic origin is irrational, and that it is therefore harmful to a society that requires all the talents available from all its citizens.

People with disabilities are, by definition, unequal in some respect. The blind cannot see, the deaf cannot hear, and those who suffer from mental disorders may not be able to perform some tasks in some situations.  At the same time, being disabled in one respect does not mean that a person lacks any other ability that might be required by a job or to otherwise participate in social and economic life. Blindness is not related to intelligence, deafness is not related to physical strength, and many mental disorders that interfere with some aspects of daily living have no effect on others. Whether a disability matters when making a decision can be difficult, especially when it comes to work. However, in the realm of participation in a consumer society or voting it is rare that any disability is relevant. Only in the case of some severe intellectual disabilities would a disabled person be unable to decide what they want to buy or where they want to live.

So far, so good then. It should be and is illegal to discriminate against those with disabilities except in those cases where the disability is directly related to whatever it is they want to do.  But there is another problem with disability and equality; the difference between equality of treatment and equality of opportunity. The U.S. Constitution guarantees equality of opportunity, not equality of outcomes. Some will succeed, some will fail, some will be rich, some will be poor, some will be happy and some miserable. What the law guarantees is that everyone will have an equal opportunity to poor and miserable; or to be more positive, an equal opportunity to be rich and happy.

The general premise of anti-discrimination laws is that if people are treated equally they will have equal opportunity.  The law cannot guarantee complete equality of treatment of course. Many studies have shown that taller men tend to be favored over shorter men for some executive positions and there is no doubt that those with better clothes, better manners and a prettier or more handsome face are often treated better than those who are poorly dressed or don’t meet our social conventions about what is attractive.  What the anti-discrimination laws do is attack the most invidious reasons for discrimination; things like race, religion, national origin and so forth. In every case the theory is the same; equal treatment despite membership in some group provides as much equality of opportunity as the law can reasonably guarantee.

Unfortunately, a guarantee of equal treatment does not result in equality of opportunity for those who are disabled.  For example, a blind person with a guide dog cannot easily navigate without their dog. A “no dogs” policy in a store is the same for everyone, but the policy denies a blind person the equal opportunity to shop. Another example would be a “no reserved parking” policy in an apartment complex. On its face this creates the same inconvenience for everyone, but for a person whose disability makes it difficult to walk the policy might be more than just an inconvenience; it could deny them the equal opportunity to get into their apartment.

To provide equal opportunity when equal treatment is not enough the FHA, ADA and other disabilities laws have what are generally called accommodation requirements. If the equal application of some rule or policy would result in unequal opportunity for those with disabilities, then the policy or rule must be waived or modified to permit equality of opportunity; or at least to permit as much equality as is possible given the disability.  Stores, landlords and others are not required to do something “unreasonable,” but in general they should be willing to change or waive their rules to permit someone with a disability to have an equal opportunity to buy, or rent, or even just walk around a public space. In other words, those with disabilities must be given special, unequal treatment as a way to provide equality of opportunity that their disability would otherwise deny them.

This is where it becomes easy to start looking at the color of the bark and leaves and forget there is a forest. Regulatory agencies, courts and businesses love nice black and white rules. They want a clear answer to questions like: “Is a person suffering from major depressive disorder entitled to waiver of a no pets policy?” Yes or no, please, because no one likes complicated questions. Although it was recently withdrawn, in 2020 HUD published a guidance on when animals were a required accommodation that tried so hard to both provide easy to apply rules and still recognize that there are no easy to apply rules that it ended up being incomprehensible gibberish.

When it comes to accommodations the questions to ask are easy but the answers cannot be put in the form of simple rules. Here are the questions:

First – is the person requesting an accommodation disabled as defined in the relevant statutes? In every case this means (a) do they have a mental or physical disorder that (b) substantially limits with a major life activity. “Disorder” is pretty easy because even a common cold is a physical disorder. “Substantially limits” is harder and the courts – who are the final arbiters of this kind of question – are not in perfect agreement. Also, the ADA and FHA have different definitions and the ADA covers more conditions than the FHA (although these generally come up only in employment cases).

Second – does the disability in question interfere with the equal opportunity to use and enjoyment of a facility like a store, home, apartment, or public space? Remember that the general rule is equal treatment for all. The accommodation obligation – special treatment for a person with a disability – is only intended to provide equality of opportunity for those whose disabilities would prevent equality of opportunity. Having a disability isn’t a free pass for special treatment in general.

This second rule gets complicated when you ask what it means to equally use and enjoy something. It is easy at this point to get deep into looking at the color of the bark on the trees, but there is one thing that is easy to say. “Enjoy” does not mean to have fun or feel good. It’s really the same thing as “use” when “use” isn’t the right word.  You use the kitchen in a house, you enjoy having a place to live that provides protection from the elements. You may be sad, anxious and depressed, but if your home provides the basic shelter and amenities provided for in the lease you are “enjoying” the apartment.

Third – is the accommodation requested reasonable?  It isn’t hard to see that “reasonable” is a word that can mean different things to different people. There are various regulatory definitions of “reasonable” and the courts have weighed in, but what is reasonable depends on so many things that no rule will ever be satisfactory.

Fourth – does the accommodation create a direct threat? Not so complicated, but if you think about it anything that creates a direct threat isn’t reasonable, so this question seems a little redundant.

Now let’s get back to the forest. Even though answering these questions may be complicated in any specific case, and even though regulators and courts would like to find a bunch of easy to apply rules, it is important always to refer back to the basic principle of equality of opportunity.  Unless equality of opportunity is somehow limited by the disability in question there can never be a need for an accommodation because accommodations are only required when equality of opportunity is at issue.

In my next blog we’ll get back to staring at bark and leaves.

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¹ It has to be noted here that “race” is a social construct usually based on appearance or origin; this is why it is an irrational basis for making choices about how to treat someone. A hundred years ago it was common to speak of the “English race” or the “German race” as if there were genetic differences that drove ability or conduct. Notions of “race” have gradually narrowed in most of the world to the idea that skin color defines a “race,” but “race” is still a social construct with no basis in genetic reality.

² There has been lots of silly commentary about how a “no pets” policy would not prohibit a guide dog or other animal because these animals are not “pets.” What it means for an animal to be a “pet” is not a sound basis for making decisions about disability rights, so we can stick to the real problem, which is a prohibition on animals.

³ One of the things everyone expects as part of the use and enjoyment of their home is that they can get dressed and go out in the world from their front door. A blind person who relies on a guide dog cannot do that without their dog; hence to have an equal opportunity to use and enjoy an apartment or house they must have their dog living with them.