The Dog Issue: Busting Common Myths About Assistance Animals
This month, the Coach reviews an increasingly common source of fair housing trouble: requests for assistance animals. There’s a lot of confusion over assistance animals, which can go by many names—service animals, therapy animals, companion animals, emotional support animals—and there are different sets of rules on when, where, and what types of animals may be used by individuals with disabilities in various settings.
Communities have a duty to grant reasonable accommodation requests when needed by individuals with disabilities to use and enjoy their homes. That includes requests for exceptions to your pet policies for assistance animals. The classic example is for an exception to a no-pet policy, but the request could be for an exception to any policy that restricts the breed, size, or number of pets—or a policy requiring payment of pet fees or deposits. No matter what your community’s policies banning or restricting pets, it’s important to understand that assistance animals are not considered pets under fair housing law, so you can’t apply your pet policies to deny a reasonable accommodation request to keep an assistance animal when needed by a resident with a disability.
It sounds straightforward, but it frequently doesn’t work out that way. For one thing, it’s often difficult to distinguish between an individual who has a disability-related need for an assistance animal and a resident who wants to keep—or avoid paying fees for—a beloved pet. Fair housing law offers a roadmap to help sort out legitimate requests from those that aren’t, but the whole process can get complicated, often leading to misconceptions about when—and under what circumstances—you must bend the rules to allow individuals to keep assistance animals at your community.
In this lesson, we’ll separate fact from fiction by busting seven common myths about assistance animals to help you avoid fair housing trouble at your community. Along with way, we’ll discuss recent enforcement actions and court rulings—all involving reasonable accommodation requests to keep dogs as assistance animals. Then, in the Coach’s Quiz, you can see how much you’ve learned.
WHAT DOES THE LAW SAY?
The Fair Housing Act (FHA) bans housing discrimination because of disability, so it’s unlawful to exclude or otherwise discriminate against applicants and residents because they—or someone associated with them—has a disability.
The FHA goes further by requiring housing providers to make reasonable accommodations to rules, policies, practices, or services, when necessary to afford a person with a disability an equal opportunity to use and enjoy his housing. The rationale is that a community’s rules, policies, practices, and services may have a different effect on people with disabilities than on others, so treating persons with disabilities exactly the same as others may deny them an equal opportunity to use and enjoy their housing.
Only individuals who qualify under the FHA’s definition of “disability” are entitled to a reasonable accommodation. Under the FHA, a disability generally means a physical or mental impairment that substantially limits one or more major life activities. That covers a wide variety of medical and psychological conditions, many of which may not be obvious or apparent, as long as they’re serious enough to substantially limit activities of central importance to daily life, such as seeing, hearing, walking, or caring for oneself.
In addition, a reasonable accommodation must be necessary—one that allows an individual with a disability an equal opportunity to enjoy the housing. To determine whether a requested accommodation is necessary, there must be an identifiable connection between the requested accommodation and the individual’s disability.
The FHA recognizes some exceptions to the reasonable accommodation rules. For example, housing providers aren’t required to grant a request for a disability-related accommodation if it’s unreasonable—that is, it would impose an undue financial and administrative burden on the community or result in a fundamental alteration of its operations. Moreover, the FHA doesn’t protect an individual with a disability whose tenancy poses a direct threat to the health or safety of others or substantial physical damage to the property of others, unless the threat may be eliminated or significantly reduced by a reasonable accommodation.
BUSTING SEVEN MYTHS ABOUT ASSISTANCE ANIMALS
Myth #1: All Animals Are Pets
It’s natural to think of all animals as pets, but the law doesn’t see it that way. HUD says that assistance animals are not pets under fair housing law. They’re animals that work, provide assistance, or perform tasks for the benefit of a person with a disability, or provide emotional support that alleviates one or more identified symptoms or effects of a person’s disability, according to HUD.
Since they provide disability-related services, assistance animals are considered to be more like human aides who provide necessary services, assistance, or support for individuals with disabilities. Just as it would be unlawful to refuse access to an aide who provides needed assistance to a resident with a disability, it’s unlawful to ban animals that provide the resident with similar assistance.
Communities with no-pet policies are most at risk for fair housing complaints if they enforce the policy to refuse requests for assistance animals. Although you generally are free to adopt whatever rules regarding animals that you believe are appropriate for your community, you may not exclude assistance animals simply because you have a general policy banning pets from your community. Refusing to consider reasonable accommodation requests for an exception to a no-pet policy for an assistance animal could expose your community to the prospects of paying hefty damage awards, not to mention fines and attorney’s fees, for fair housing violations.
Example: In July 2017, a federal appeals court upheld a lower court ruling that requires the owner of an Oregon community to pay a $9,000 civil penalty, along with nearly $170,000 in attorney’s fees and costs for unlawfully denying reasonable accommodation requests for assistance animals.
The lawsuit was based on an investigation by a local advocacy group, which arranged for testers to call the community posing as prospective residents. The phone was answered by a friend of the community’s owner, who was covering the front desk in exchange for being allowed to live there. When the testers asked about living there with “therapy animals” or “assistance animals,” the friend initially said he’d have to check with the owner, but he later told them that the owner wouldn’t allow pets. The court found the community liable for disability discrimination under federal and state fair housing law.
The appeals court upheld the lower court’s decision, ruling that the community should have known known that the testers were requesting reasonable accommodations for assistance animals. One tester mentioned a “therapy animal,” and another mentioned “an assistance animal,” and the friend said he understood they were asking about assistance animals—not pets.
Furthermore, there was proof that the community denied the reasonable accommodation requests. The community didn’t reach out to the prospects to determine whether the requested accommodation was reasonable or necessary. Instead, the community, via the friend, heard that they wanted to keep assistance animals and immediately denied them the accommodation [Avakina v. Chandler Apartments LLC, July 2017].
Myth #2: We Only Have to Allow Service Dogs
Don’t get confused by the different rules governing the types of animals used by individuals with disabilities in various settings, particularly the Americans with Disabilities Act (ADA), which applies to public places, like restaurants, hotels, and other venues. With one limited exception (for miniature horses), the ADA allows only dogs that have been individually trained to perform disability-related tasks to be service animals—and specifically excludes emotional support animals.
But when it comes to housing, you must comply with the FHA, which is much broader than the ADA when it comes to the types of animals that individuals with disabilities may keep in their housing as assistance animals. Fair housing law allows not only service dogs, but also other animals that provide assistance or emotional support to individuals with disabilities. Assistance animals don’t have to be individually trained or certified—and they all have the same legal standing—regardless of what type of assistance they provide to an individual with a disability.
Communities often get into fair housing trouble by mistakenly applying the ADA rules on service animals instead of the FHA’s broader rules on assistance animals. For instance, you could be accused of violating fair housing law for refusing to consider requests for emotional support animals—or demanding to see a certification or other proof of the animal’s training or special skills.
Example: In July 2017, the California Department of Fair Employment and Housing announced a $40,000 settlement to resolve allegations of disability discrimination in a case involving an emotional support animal. The lawsuit accused the community of denying the reasonable accommodation requests of a mother and daughter, both with disabilities, who requested a reasonable accommodation to keep an emotional support animal in their unit. According to the complaint, the residents made written requests supported by medical documentation attesting to their need for an assistance animal, but the landlord refused to consider the requests because their doctor’s note didn’t state they needed a dog “to survive.” The complaint also accused the landlord of retaliating against them by issuing them a notice terminating their tenancy.
Myth #3: We Can Reject Requests from People Who Don’t Appear to Be Disabled
Under fair housing law, all individuals with disabilities are equally protected—whether their disabilities are physical or mental, obvious or not—so don’t let outward appearances affect how you treat them. Fair housing law defines “disability” to include a variety of physical and emotional impairments that may not be obvious or apparent to the housing provider. As far as the law is concerned, all individuals with qualifying disabilities are entitled to reasonable accommodations—including assistance animals—when needed to allow them to use and enjoy their homes.
When you receive a request for an assistance animal, HUD says there are two relevant questions:
- Does the individual have a disability—that is, a physical or mental impairment that substantially limits one or more major life activities? (Note that you should not ask about the nature of the disability.)
- Does the individual have a disability-related need for that assistance animal—that is, does the animal work, provide assistance, or perform tasks for the benefit of a person with a disability—or provide emotional support that alleviates one or more identified symptoms or effects of a person’s disability? (Note that you should not ask what the animal actually does on behalf of the person.)
If the answer to both questions is yes, then HUD says that fair housing law requires you to make an exception to your pet policy to permit an individual with a disability to live with and use an assistance animal at the community, unless doing so would impose an undue financial or administrative burden or would fundamentally alter the nature of the community’s services—or if the animal would pose a direct threat to your property or the health and safety of others.
If the answer to either question is no, then HUD says that fair housing law doesn’t require you to make an exception to your pet policy and the reasonable accommodation request may be denied.
If there’s no clear answer to either question, then you can ask for more information. Though fair housing law generally forbids housing providers from making disability-related inquiries, there’s an exception for reasonable accommodation requests when either the disability—or the disability-related need for the requested accommodation—aren’t obvious or apparent.
If the resident’s disability isn’t readily observable, then you may ask for reliable disability-related information that’s necessary to verify that the resident has a disability that qualifies under the FHA—that is, a physical or mental impairment that substantially limits one or more major life activities—and has a disability-related need for the animal. But you can’t ask applicants or residents for access to medical records or medical providers—or for detailed or extensive documentation about their physical or mental impairments.
For example, HUD says that communities may ask applicants who want a reasonable accommodation for an assistance animal that provides emotional support to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability. Such documentation is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support, according to HUD.
Myth #4: We Must Allow Residents with Disabilities to Keep Assistance Animals
The law doesn’t require you to grant a request to keep an assistance animal just because it’s from an individual with a disability. That’s because the law requires communities to grant reasonable accommodation requests only when they’re necessary to provide individuals with disabilities with an equal opportunity to use and enjoy their units—that is, when there’s a sufficient connection between the disability and the assistance provided by the animal.
As an example, HUD/DOJ guidelines point to a request by an applicant who uses a wheelchair to keep a dog as an assistance animal. The applicant’s disability is readily apparent, but the need for the assistance animal isn’t obvious to the housing provider. The community may ask the applicant to provide information about the disability-related need for the dog. Although the guidelines state that housing providers may deny a request for a reasonable accommodation if there’s no disability-related need for the accommodation, it’s a good idea to consult your attorney to help you avoid fair housing trouble.
Example: In January 2017, the Pennsylvania Supreme Court let stand a ruling that a Philadelphia cooperative community didn’t violate fair housing law by refusing to waive its no-dog policy for an applicant with disabilities.
In her application to join the 559-unit co-op, the applicant indicated that she required a “service dog”—a Plott Hound named Mira. In response to a request for verification, the applicant submitted a letter from her primary care physician, indicating that she had multiple medical issues that affected her mobility and that she benefitted from the support of a service dog. At a meeting with the membership committee, she explained that Mira wasn’t specially trained but assisted her with ordering her day, remembering when to take her medication, eat meals, and get out of bed. The community denied her request to waive the no-dog policy as well as her application to live there.
After she filed a complaint with the city, the Philadelphia Commission on Human Relations ruled that the community violated the city’s fair housing ordinance and a court agreed.
On appeal, a court reversed, ruling that the community did not violate fair housing law by denying the applicant’s request for an assistance animal. Although she had a disability, the court ruled that the applicant failed to prove a sufficient connection between the disability described in the medical information she presented and the assistance provided by her animal. The doctor documented her issues with mobility, but the applicant said that Mira did not assist with her mobility. Instead, she said that the dog assisted her by reminding her to take medication and get out of bed. Although the services provided by the dog may alleviate a psychological condition, the applicant stated that she didn’t have a psychological disability and there was no question that Mira didn’t provide assistance directly related to her mobility, the only disability documented by her doctor [Kennedy House Inc. v. Philadelphia Commission on Human Relations, January 2017].
Myth #5: We Don’t Have to Allow Pit Bulls, Even If They’re Assistance Animals
You may adopt a pet policy with a blanket rule against pit bulls and other so-called “restricted breeds,” but HUD says that breed restrictions (along with size or weight limitations) don’t apply to assistance animals. To comply with fair housing law, you must assess whether the particular animal in question poses a direct threat; otherwise, you may be accused of denying a reasonable accommodation by excluding an assistance animal based on its breed.
Example: In September 2016, the owner and managers of a New York community agreed to pay $9,000 to settle allegations of disability discrimination by denying a reasonable accommodation to allow an applicant to have a 65-pound pit bull as an emotional support animal. In her HUD complaint, the applicant, a woman with a mental disability, claimed that after she signed a lease for a unit, the owner and managers denied her request to waive its no-pet policy so she could keep her emotional support animal. She also alleged that they cancelled her lease, even though she allegedly provided a doctor’s statement attesting to her need for the accommodation [United States v. Hillside Park Real Estate, LLC, September 2016].
Although you can’t apply a blanket ban on certain dog breeds, HUD says that you may exclude an assistance animal when the animal’s behavior poses a direct threat to the health and safety of others and its owner takes no effective action to control the animal’s behavior so that the threat is diminished or eliminated. Nevertheless, a determination that an assistance animal poses a direct threat of harm to others or would cause substantial physical damage to the property of others must be based on an individualized assessment that relies on objective evidence about the specific animal’s actual conduct—not on mere speculation or fear about the types of harm or damage an animal may cause, and not on evidence about harm or damage that other animals have caused.
Myth #6: We Can Require Residents to Pay Pet Deposits for Assistance Animals
Don’t impose extra conditions, such as pet deposits or extra monthly pet fees, as a condition of allowing an individual with a disability to keep an assistance animal.
Conditions and restrictions that communities apply to pets may not be applied to assistance animals, according to HUD. Under the law, assistance animals are not considered pets, so communities must consider reasonable accommodation requests to waive pet deposits and other pet fees for persons with disabilities who use assistance animals. For instance, communities may require pet owners to pay a pet deposit, but you could face a HUD complaint—or a lawsuit—if you require applicants or residents to pay a pet deposit for an assistance animal.
Example: In June 2017, HUD announced that the owner and manager of four Nevada rental communities agreed to resolve allegations of housing discrimination against prospective tenants with disabilities who require assistance animals. A fair housing organization filed the HUD complaints, accusing the communities of discriminating against prospective tenants who required assistance animals by requiring applicants who required emotional support animals to pay a pet deposit fee. Under the settlement, the owners agreed to pay more than $20,000 to the fair housing organization, adopt written policies, and provide fair housing training for all employees who interact with residents or applicants.
Example: In May 2017, a jury found a Montana landlord liable for discriminating against a resident with a traumatic brain injury by charging her a $1,000 deposit as a condition for allowing her to keep her service dog, Riley. At the trial, the resident and her experts testified that Riley assisted the resident in living with the symptoms of her disabilities, including providing emotional support, helping to predict migraines, and reducing suicidal thoughts. The resident said she repeatedly informed the landlord that charging a deposit for a service animal was illegal, but the landlord continued to levy this charge and, at one point, threatened to evict her. Siding with the resident, the jury awarded $31,000 in damages to the resident and $6,000 to the fair housing organization that assisted her with her HUD complaint. The case is currently on appeal [U.S. v. Katz, May 2017].
Example: In February 2017, HUD charged the owners and managers of a rental home in Oklahoma with violating fair housing law by denying the reasonable accommodation requests of a resident, a combat veteran with a mental disability. In his HUD complaint, the resident accused the landlord of refusing to waive the pet deposit fee for his emotional support animal, a dog. According to HUD’s charge, the resident provided the owners and management company with medical documentation attesting to his need for the animal, but they denied his request to waive a $250 pet deposit. HUD’s charge will be heard by an administrative judge unless any party elects to take the case to court.
Aside from pet deposits and fees, you could also run into fair housing trouble for imposing other terms and conditions on a resident who requests a reasonable accommodation to keep an assistance animal. You could get into trouble, for example, by requiring residents to obtain additional insurance or satisfy other conditions before granting a reasonable accommodation request for an assistance animal.
Example: In October 2016, the Justice Department announced that the owners and managers of four multifamily housing communities in Utah agreed to pay $45,000 to settle a fair housing case alleging discrimination against residents with disabilities who wanted to live with their assistance animals. The complaint alleged that the communities required residents with disabilities who sought to live with an assistance animal to have a healthcare provider complete a “prescription form,” which suggested that the healthcare provider may be held responsible for any property damage or physical injury caused by the animal. Allegedly, the communities didn’t require residents without disabilities to have a third-party assume liability for their pets. Under the settlement, the communities agreed to pay $20,000 to a former tenant and her 7-year-old son with autism who were allegedly denied permission to keep the child’s assistance animal after the child’s doctor refused to assume liability for any possible damages caused by the animal. The communities also agreed to pay $25,000 to establish a settlement fund for others allegedly harmed by the policy.
Coach’s Tip: Although you can’t charge extra fees up front to cover potential property damage by an assistance animal, you have recourse against its owner if the animal actually causes damage to the unit or common areas. HUD says you may require a resident to cover the cost of repairs for damage the animal causes to the resident’s unit or the common areas, reasonable wear and tear excepted, if it’s your policy to assess residents for any damage that they cause to the premises. Allowing for reasonable wear and tear, you may assess the costs against the standard security deposit charged to all residents, regardless of disability.
Myth #7: We Don’t Have to Allow Residents to Keep More than One Animal
There’s nothing in the law to prevent an applicant or resident from requesting reasonable accommodations for multiple assistance animals. Even if your pet policy limits the number of animals allowed, you may have to waive the limit as a reasonable accommodation for a resident who has a disability-related need to keep an extra animal.
Example: In May 2017, a court refused to dismiss a lawsuit filed by a resident who accused her California condo community of disability discrimination for refusing to waive its rule limiting residents to one pet. The resident, who already had a dog, originally sought a reasonable accommodation so that her mother, who had cancer, could keep an emotional support animal. After her mother died, the resident wanted to keep the dog herself as an emotional support animal, but she said that the community denied the request. All the while, she alleged, fines for violation of the rules accrued and were the subject of a small claims action, which the community lost.
The resident, who said she had been diagnosed with “crippling anxiety,” claimed that she continuously sought a reasonable accommodation for her disability and that she submitted a letter from her “medical treater,” stating the nature of her disability and need for an emotional support animal. Some months later, the community allegedly ceased issuing fines and withdrew the claim that she was in violation of the one-pet policy.
The resident sued, accusing the community of disability discrimination for denying reasonable accommodation requests to waive the one-dog policy for both mother and herself.
The court refused to dismiss the case, ruling that the resident could pursue claims against the community based on denial of the mother’s request. The community allegedly subjected the resident, as the condo owner, to fines, including those related to her mother’s disability.
The resident could also pursue claims based on her request to keep the emotional support animal, even though the community allegedly stopped assessing the fines. The community argued that it never required her to remove the dog, but the court said the community handled the situation in a different manner: Allegedly, the community fined the resident, withheld the use of the pool, and failed to advise her of the status of the requested accommodation [Espinoza v. Gentry Courts Home Owners Association, Antioch, Inc., May 2017].
- Fair Housing Act: 42 USC §3601 et seq.
- HUD guidance: Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs: https://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2013-01.pdf.
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|September 2017 Coach's Quiz|