ADA and FHA Defense

On May 23, 2026, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity announced a dramatic change in HUD’s view of accommodation requests for emotional support animals.² Stripped of the usual bureaucratic word swamp the point of the announcement is simple. HUD will not find reasonable cause to believe discrimination occurred for any case involving an emotional support animal. If a tenant or resident who was denied a waiver of a “no pets” policy for an ESA files a complaint with HUD it will fail. The same applies to any other request concerning an ESA. Individuals who claim they have a disability related need for an emotional support animal can still file a private lawsuit under 28 USC §3613, but the government isn’t going to help them out. Here is the exact language of the Memorandum:

“Effective immediately, for complaints related to animal-related reasonable accommodations, FHEO will find reasonable cause and recommend charges only for those cases involving animals trained to provide disability-related assistance.”

The key words are “animals trailed to provide disability-related assistance.” Emotional support animals are, by definition, not trained to do anything. It is (supposedly) their mere presence that somehow relieves the symptoms of a disability that interfere with the equal use and enjoyment of an apartment or other home.

Why the change of heart? Credit has to go to the lawyers who represented the defendants and the judge who decided Henderson v. Five Properties LLC, No. 24-750, 2025 WL 1951763, at *5 (E.D. La. July 16, 2025).¹ Assistant Secretary Trainor agreed with Judge Vance that the reasoning in HUD’s earlier guidance on emotional support animals was “unpersuasive.” It is not a surprising result because, as Judge Vance observed, the consideration of the ESA issue in HUD’s now discarded guidance “is not thorough, and it presents no reasoning to evaluate.” The Memorandum concludes with a suggestion that HUD will work on regulations (as opposed a mere guidance) to more carefully consider how housing providers should deal with animal requests of all kinds.

Will the May 23 Memorandum help housing providers? It should. Most ESA requests come from individuals who paid for a letter from a therapist of some kind that says they have an unnamed psychological disability and that an ESA will provide some unspecified benefit. Housing providers can now reject those letters without the fear of an expensive and disruptive HUD investigation that might lead to an even more expensive lawsuit. There are, however, a few shadows falling on the otherwise sunny picture.

One is state fair housing authorities who enforce state fair housing laws. They may or may not decide to follow HUD’s lead on this matter. My last blog discussed a case in which Connecticut’s fair housing agency went all the way to the Connecticut Supreme Court on a discrimination claim based on emotional support dogs. California may also continue to require ESA accommodations (although California limits who can write ESA letters).

A second cloud is what the Memorandum says about what kind of animal accommodations it will consider. It will consider complaints of discrimination for failure to accommodate animals that are: “individually trained to perform work or perform tasks directly related to the complainant’s disability.” “Directly related to” is disturbing because the standard under the Fair Housing Act is “necessary for the equal use and enjoyment” of a dwelling. To be “necessary” for equal use and enjoyment an animal must be trained to do something that eliminates or reduces whatever it is that interferes with equality of use and enjoyment. “Directly related to” is not enough. This is likely another failure by HUD to be sufficiently precise, but it is the kind of loose language that will be seized on by those who want to evade the intent of the law so they can keep a pet.

Finally, the online hucksters who sell ESA letters have shown their ability to pivot when their business is threatened by regulatory change. After the Department of Transportation amended its regulations to allow airlines to refuse ESA’s, the online ESA letter sellers shifted to selling “psychological support animal” letters. Unlike emotional support animals, for whose effectiveness there is scarcely any scientific evidence, it is possible to train animals to help ameliorate the symptoms of some mental disorders in a way that improves equality of opportunity. Dogs to assist those with PTSD are one example. Unfortunately, it is very easy to simply make up a story about how an animal was trained to help with a supposed disability and there is no shortage of therapists and others who are willing to say that anyone with $125 has a disabling mental disorder and a dog trained to help with that disorder. In this case, though, there may be help from the regulations under the Americans with Disabilities Act. ADA regulations recognize only two kinds of animal as a trained service animal – dogs and miniature horses. The latter are used to help guide the blind in the same way guide dogs have been. Limiting FHA accommodations to these two animals would at least eliminate claims that cats and fish can be trained to help with psychological disabilities. Equally important, the ADA regulations recognize that when someone claims their animal is a service animal a business can ask what task the animal is trained to perform. That question, and a requirement that the writer of an psychological support animal letter specify the same thing, will make it more difficult for those who issue the letters to certify the animal is a service animal because, of course, they cannot possibly know whether it has been trained or if it can do what it was trained to do. Many will continue to lie, but some may feel that the risk to their license is too high for a single payment.

The disability rights community is unhappy about the May 23, 2026 Memorandum, but the net effect should be beneficial to those who are genuinely disabled. One of the many problems with ESA letters and the ESA letter business has been that it encourages fraud by individuals who are not disabled but want to keep a pet. That fraud is pervasive and has caused many housing providers to look at every accommodation request with suspicion. It doesn’t help those who are truly disabled when individuals who are merely selfish make landlords distrust everyone. Another is that by promoting the idea that ESA’s can in fact improve equality of use and enjoyment the ESA letter industry has encouraged those who are genuinely disabled to believe simply keeping a pet has therapeutic value. No responsible medical professional will suggest that an ESA is a substitute for real therapy or medication, and the ESA letter business encourages just that false belief.  Disability advocacy groups properly focus on what makes life easier or better for their constituents, but making life easier or better is not the same thing as reducing the symptoms of a mental disorder that interfere with equality of housing opportunity. A more rigorous approach to accommodations under the Fair Housing Act by HUD should help those with disabilities by discouraging fraud of which they are often one of the victims and encouraging a focus on accommodations that genuinely improve equality of housing opportunity.

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¹ I discussed the case at “HUD was wrong about pet deposits,” including my role in the case.

² You can get a copy of the Memorandum and read what disabilities rights groups have to say ESA Policy Reversal. You can read William Goren’s thoughts about ESA’s at Understanding the ADA.