Accessibility Defense, Helping Business Avoid and Defend ADA and FHA Lawsuits

ADA and FHA Defense

  • ADA website litigation – latest statistics and my opinion. . .

    Seyfarth Shaw’s Title III ADA blog has published mid-year statistics for ADA website filings, which you can find at Seyfarth Shaw Blog. The headline is that filings are up, but there is more to it than that when you look at the rate of filings from 2017 to present. First, the chart doesn’t show filings before 2017. If it did the numbers would be very small. The private serial filer litigation model was not carried over from physical accessibility lawsuits to web accessibility lawsuits until 2015 and it took a few years for plaintiffs’ lawyers to see how lucrative the lawsuits could be. 2017 was when the rate of filing hit the levels that have continued since.

    Seyfarth Shaw’s statistics also show that since 2017 the number of federal filings has gone up, then down, and now up again. This is worth noting because the theory behind private enforcement of Title III standards is that private litigation can be used as a way to promote public policy without burdening taxpayers directly (since taxpayer dollars fund enforcement by the Department of Justice). Has it worked? After ten years it appears the private enforcement model has failed. If litigation were a good way to implement public policy you would expect that over time there would be fewer and fewer lawsuits because there would be fewer and fewer inaccessible lawsuits. That hasn’t happened.

    Does that means that websites today are just as likely to inaccessible as they were ten years ago? That isn’t the correct conclusion from these statistics. Whether private business websites are gradually becoming more accessible in general is an open question because it doesn’t look like the plaintiffs and lawyers who file these suits care about practical accessibility; that is, whether a disabled person can effectively use a website for its purpose. Instead they are looking for any non-conformance with WCAG 2.x AA, no matter how trivial, that will allow them to make litigation more expensive than settlement. That drives settlement and lets them move on to another website lawsuit. Lawyers on both sides make money and those with disabilities are unlikely to get any meaningful improvement in website accessibility.

    This is an unavoidable consequence of two features of Title III of the ADA as it has been enforced in the courts. One is that winning defendants are only awarded attorneys’ fees if the suit was brought in bad faith. This gives plaintiffs and their lawyers a free pass to bring lawsuits with little risk of adverse consequences if they lose. The second is that physical accessibility has been defined as meeting a set of technical standards and website accessibility, it is assumed, must be defined the same way. Instead of asking “can a disabled person use this website” the question presented to the court is something like “does this website perfectly conform to WCAG 2.2 at success level AA.” Note the word “perfectly.” It is assumed by many courts and the Department of Justice that only perfection allows equality of access. Even the most trivial failure to conform to WCAG 2.2 AA is considered violation of Title III. Since nobody is perfect, everybody can be sued.

    There is also a purely practical consideration. The most lucrative way to practice law as a plaintiff’s lawyer is to invest a minimum amount of time to get an early settlement. If you can invest a couple of hours of time plus a $400 filing fee to get $9,000 settlement (which is typical) you make $4500 an hour, which is a rate that can generate millions of dollars a year for just one lawyer, even with the cost of paralegals and other overhead. On the other hand, a lawyer who takes a case to trial and wins a judgment forcing the defendant to create an accessible website will only be awarded attorneys fees at the local market rate, which is likely to be only hundreds of dollars an hour. A quick settlement with an illusory promise of remediation is clearly the way to go and that is, indeed, how it does go with website litigation.

    Congress has tried (but failed) to pass various bills that would try to cut down on website litigation by requiring notice, but notice is not a solution because perfection isn’t possible no matter how much notice is given and, to be honest, many businesses ignore notices of a problem they’d rather not think about. There is, however, a solution that would help accomplish the goals of the ADA rather than merely making lawyers rich. Simply provide that in any Title III lawsuit alleging that a website is not accessible, the defendant has the option of admitting liability and accepting a judgment requiring that the website be made equally accessible to those with disabilities, with the plaintiff’s attorney to be paid fees set by the court. This would not be a Rule 58 offer of judgment that the plaintiff could refuse. The form of judgment would be fixed in the statute and the defendant’s only choice would be to accept that judgment or fight while the plaintiff’s only choice would be to accept that judgment. Plaintiff’s lawyers could make a reasonable amount in fees based on their time spent and the public would get a real enforceable judgment instead of a fake promise to remediate.

    Implementing this solution would require considerable thought, but creating an accessible society for those with disabilities was never likely to be as easy as telling private lawyers they were in charge of implementing public policy when lawyers are driven (like most people) by the desire to make as much money as possible with as little work as possible. The existing system is badly broken and fantastically wasteful when the dollars to lawyers are compared to the dollars spent to benefit the disabled. It is time for Congress to make a change.


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  • FHA – HUD weighs in on the statute of limitations

    On August 31, 2026 HUD issued a memorandum to its various divisions with instructions on “The Statute of Limitations Under the Fair Housing Act as Applied to Design and Construction Cases.” You can read it here. The memo is, strictly speaking, for internal use only. It tells HUD officials how HUD interprets the one year statute of limitations for adminstrative complaints alleging violations of 42 U.S.C. §3604(f)(3)(C), the design and construction requirements for covered multi-family housing. It is still important though, because HUD internal memoranda with no official importance often have an outsized influence on private FHA litigation. For example, HUD decided in September 2006¹ that a plaintiff in a design/build case could meet their burden of proof by showing that the housing did not meet a HUD safe harbor and that the burden then shifted to the defendant to prove it was accessible. Courts that are not bound by such HUD decisions have nonetheless assumed this was true. Similarly, in comments to the adoption of new safe harbors HUD stated its “position” that a developer or builder had to comply with a safe harbor “in its entirety” to claim safe harbor status.² HUD’s “position” is just that, a position, but plaintiff’s experts and some courts have accepted the idea that “accessibility” is equivalent to compliance with a single safe harbor.

    So, HUD’s pronouncements matter even though they are not binding on the courts. In this case the pronoucement is:

    effective immediately, the U.S. Department of Housing and Urban Development (HUD or the Department) will treat an alleged violation of 42 U.S.C. § 3604(f)(3)(C) as a distinct discriminatory housing practice that ends when the design and construction of a covered multifamily dwelling is completed.

    HUD acknowledges that this is a change in position. In its 2013 Joint Statement on design and construction requirements HUD opined that the limitations period did not start until a disabled person was affected by the violation, meaning that owners and contractors had eternal liability. The Ninth Circuit disagreed in Garcia v. Brockway, 526 F.3d 456, 462 (9th Cir. 2008) (en banc), holding that the two year limitations period for civil actions began to run when the project was completed, with completion determined by the issuance of a certificate of occupancy. That opinion is generally accepted in FHA design/build cases, but other theories are in circulation. In Fair Hous. Council, Inc. v. Vill. of Olde St. Andrews, Inc., 210 Fed. Appx. 469, 480 (6th Cir. 2006), for example, the Sixth Circuit suggested that limitations began to run when the last covered unit was first sold or rented.

    For developers, contractors and architects concerned with private litigation HUD’s general agreement with Garcia v Brockway is generally helpful, especially since HUD specifically withdraws all of its prior guidance on this subject:

    The Department’s prior guidance concerning when to file administrative or private fair housing complaints alleging design and construction violations, including any contrary guidance in HUD’s Design Manual, is superseded and has no further force or effect.

    HUD notes that courts will reach their own decisions on these matters, but as noted above, HUD’s pronouncements have an effect, even in the post Loper v. Bright era.

    That is not the end of good news for those with potential Section 3604(f)(3)(C) liability. HUD seems to disagee with one part of the holding in Garcia v. Brockway . In Garcia v. Brockway the Court found that limitations began to run “on the date the last certificate of occupancy is issued.” 526 F.3d at 461.  For an apartment complex with multiple buildings this is often claimed to mean the last certificate of occupancy for the entire complex, not the date of the individual certificates of occupancy that may be issued for each building. HUD’s memorandum seems to take a different position, stating that limitations begins to run: “upon completion of construction, as evidenced by the issuance of the certificate of occupancy for the covered dwelling,” as well as referring to limitations running from the “covered dwelling’s initial certificate of occupancy.” A “covered dwelling” is a building, and this very strongly suggests that when each building in an apartment complex receives its own certificate of occupancy limitations for claims related to that building run from the date of its certificate. In multi-building complexes this may mean that a plaintiff who sues within two years of the “final” certificate of occupany may be too late with respect to many of the covered dwellings. This in turn will limit the scope of injunctive relief and its cost.

    HUD’s position makes sense, because for larger developments it is not uncommon for leasing to begin in completed buildings while other buildings are still under construction, and for developers faced with private lawsuits having limitations run for each building could significantly reduce litigation risk. For those who develop, own and build condominiums, apartments and other “covered multi-family dwellings” HUD’s latest memo is good news even if, on its face, it governs only HUD’s internal investigations.

    ++++++++++++++++++++

    ¹ Order on Secretarial Review, HUD v. Brent Nelson et al, FHEO Case 08-04-0056-8 (2006)

    ² 72 FR 39438 July 18, 2007.


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  • When it comes to ESAs, don’t ask a doctor for advice about the law

    On July 1, 2026 the American Psychological Association published an article about using animals in therapy. You can find it here.  I’m a lawyer, not a doctor, so I don’t have anything to say about most of the article, which deals with how animals can be used by psychologists when interacting with patients. I can say, however, that the article is wrong when it comes to its discussion of emotional support animals and the law. For example, the author writes:

    Under the Fair Housing Act, ESAs are defined as animals that provide emotional support or alleviate a symptom or effect of a disability.

    There is no Fair Housing Act definition of ESAs, either in the statute or the related regulations. This information comes from a HUD guidance document that never had any binding effect and has now been withdrawn by HUD. The claim that an animal is an ESA is meaningless in legal terms because the words “emotional support animal” do not have a fixed legal definition.  Next:

    Clinicians don’t need specific knowledge about the individual animal to write an ESA letter that is ethically and legally acceptable according to federal guidance, said Ekholm Fry.

    It is true that Ekholm Fry said something like this in a 2021 paper, but it was wrong at the time and became even more wrong after HUD withdrew the guidance documents on which Fry apparently relied. First, federal agencies like HUD do not establish ethical standards for medical providers. Whether an “ESA letter” is ethically acceptable depends on the law of states that license psychologists and on the standards of the profession itself. Second, even the now withdrawn HUD guidance does not say that clinicians can write an ESA letter without knowledge about the individual animal. HUD’s old guidance always insisted that evidence of disability and need for an ESA be “reliable.” The APA’s own publications about ESA’s suggest that clinicians should be careful in prescribing ESA’s to evaluate all the effects it may have on their patient, and it is hard to imagine how that can be done without knowing something about the specific animal.

    But to continue, the author next writes:

    Their (the therapist’s) role is simply to document that the person indeed has a disability, as defined under the Americans with Disabilities Act (ADA).

    The sentence is hyperlinked to the ADA. The problem is that the definition that matters for ESA’s in housing is the definition of “handicap” in the Fair Housing Act. The definition of “handicap” in the Fair Housing Act is not the same as the definition of “disability” in the ADA. A therapist who relies on the ADA definition of disability when writing an ESA letter to help their patient avoid a “no pets” policy at an apartment complex isn’t matching their letter to the law that matters.

    Even more important, “disability” and “handicap” are legal terms with legal definitions, not medical terms with medical definitions. Unless a therapist has enough legal training to relate these legal terms to equivalent medical terms the therapist is not competent to say whether their patient has a “disability” or “handicap” as defined in the ADA and FHA. I will add to be fair that lawyers should not go around making medical diagnoses. I might say in casual conversation that say an opposing lawyer has OCD, but I certainly wouldn’t write a letter asserting that they had OCD based on my legal training and the fact I have a copy of the DSM V on my shelf. Lawyers shouldn’t make medical diagnoses and therapists shouldn’t opine about the law.

    I could go on picking apart this article, but these illustrations make the point. Whether a patient has a “handicap” that triggers application of the Fair Housing Act is a legal question that requires applying the legal definition of handicap to whatever medical diagnosis a therapist is competent to make. Whether keeping an animal in an apartment or home “may be necessary to afford such person equal opportunity to use and enjoy a dwelling” is a legal question that depends on the legal definitions of “necessary,” “equal opportunity,” “use and enjoy” and “dwelling” applied to what the animal does for its owner. This may not require a law degree, but it certainly requires legal training about the meaning of these terms as they have been interpreted by the courts. It also requires some knowledge of HUD’s published memos on this subject, because HUD or the President can, with the stroke of a pen, simply eliminate all of HUD’s previous guidance materials. That is what happened on May 22, 2026, a week before the APA article I’m writing about. Only specialists in disability law are likely to be up to date on these issues. Someone with legal training would know how to become up to date using available legal research tools, but I doubt that most therapists have the training required to use those tools or access to them.

    If a psychologist is asked to write an ESA letter they should, if they have not already done so, research the professional literature for their profession concerning the possible benefits and harms of ESA prescriptions and the likely ethical complications. Then they should do what they are qualified to do. First, determine using appropriate diagnostic criteria diagnose the patient’s medical condition. Second, describe what is known about what the ESA does for their patient. “Know” means know with whatever degree of certainty is needed to treat the patient according to applicable professional standards. And then they should stop. Whether they have diagnosed a handicap or disability is a legal question, not a medical question. Whether the animal is “necessary to afford such person equal opportunity to use and enjoy a dwelling” is a legal question, not a medical question. In short, psychologists and other medical providers should stick to doing what they are trained and competent to do, and leave the legal consequences of their medical conclusions to be decided by those whose training and competence is in the law.

    As a final note, both therapists and lawyers need to understand that AI cannot make up for a lack of training. At least a couple of lawyers are sanctioned every week because they relied on AI to do their legal research. In my disability law practice I have seen lawyers who decided to learn about the Fair Housing Act via Google get their clients in serious trouble.  A psychologist who relies on AI or a Google Search to learn about writing emotional support animal letters is certainly doing their patient a disservice and may be doing the patient a lot of harm. Those who have two legs that work don’t need an artificial leg. Those who have a brain that works don’t need artificial intelligence.


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  • SBA v DOJ – who’s calling the shots on website accessibility?

    On June 23  the Small Business Administration’s Office of Advocacy called on the Department of Justice to go beyond its recent one year pause on Title II website regulations and simply scrap them entirely. See, Advocacy Recommends. The legal justification is astonishing – SBA claims that under the latest Supreme Court authorities, Loper Bright Enterprises v. Raimondo and West Virginia s. EPA, the Department of Justice cannot make regulations “because Congress has not clearly authorized regulations in this area.” Section 12134 of the ADA requires that the Attorney General “promulgate regulations in an accessible format that implement” Title II of the ADA, which is the part of the ADA that governs state and local government accessibility.  Congress has clearly authorized regulations, so why not website regulations? Perhaps because the ADA doesn’t apply to local government websites.

    More important for most of my readers, this same argument seems to apply to Title III of the ADA, which covers most businesses. In fact, the SBA’s press release prominently mentions the detrimental effect of the regulations on small businesses. Section 12186(b), which is part of Title III, uses the same language as Section 12134 to require regulations from the Department of Justice (although it is a little confusing because there are special provisions related to transportation). If DOJ is not authorized to issue Title II regulations concerning website accessibility then it almost certainly isn’t authorized to issue Title III regulations concerning website accessibility either.

    I would love to see the SBA internal memo that explains its conclusions, but it seems clear that the Trump Administration is not unified on the question of website accessibility regulations. DOJ’s delay in implementing the Title II regulations made sense as a recognition of the technical complexity, but there was no hint that there would be no regulations at all. The postponement of any effort at Title III regulations also made sense, or at least was justified, based on the argument that the Title II regulations would be a testing ground for later Title III regulations. In either case DOJ seemed committed to the idea of regulating website accessibility even if it was slow to do so.

    The SBA recommendation also makes a good point apart from whether the regulations are authorized at all. It writes:

    Advocacy recommends that the DOJ consider exempting small governments with a population of fewer than 10,000 from this rulemaking. Advocacy also recommends that the DOJ provide safe harbors to reduce litigation risks to small governments.

    These points should apply with equal force to small businesses and the need for a safe harbor. ADA website litigation is driven in part by the existence of enormously complicated technical standards that cannot, as a practical matter, be met with a website that has constantly changing content, which is true of almost all business websites. These standards also make no distinction between requirements that are necessary for a disabled person to do what the website is for (such as buy something) and those that are secondary to the main function (such as links that allow a visitor to “Like us on Facebook!”).  DOJ would be doing businesses, especially small ones, a favor if it promulgated regulations that did not simply adopt WCAG 2.2 AA technical standards wholesale as the Title II and earlier proposed Title III regulations had done. Instead, if DOJ is going to regulate, it should adopt regulations that distinguish between elements essential for the use of the website for its purpose and elements that are secondary. This would not completely solve the problem of industrial scale litigation driven solely by the desire of lawyers to make money,  but it would help.

    Finally, the SBA announcement is likely to be more than the opening shot in a battle between agencies about the limits of regulatory authority. I suspect that underlying the argument about the power to regulate is an argument that the ADA simply does not cover websites, an argument accepted by the Courts of Appeal in several circuits with respect to Title III entities. Presented as an argument about regulatory authority the question of whether Congress intended the ADA to cover websites may finally make it to the Supreme Court.


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  • HUD’s radical change of position on ESA’s

    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. (more…)


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