Dos & Don'ts When Handling Requests for Assistance Animals, Part 1
This month’s lesson is the first of a two-part series on assistance animals—a common source of fair housing trouble. Disability discrimination claims account for more than half of all fair housing complaints, often based on disputes over requests by applicants or residents with disabilities to have the assistance animals.
There’s a lot of confusion over assistance animals, which can go by so 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.
The confusing terminology and conflicting rules often lead to fair housing complaints if, for example, communities apply the wrong rules to deny requests for assistance animals needed by individuals with disabilities. And the confusion can cut both ways if, for example, residents mistakenly believe that their impairments qualify as a disability, so they’re entitled to keep their pet as an assistance animal.
To cut through the confusion, the Coach focuses on federal fair housing law—the primary law governing use of assistance animals in multifamily housing communities. To keep things straight, we’ll use the umbrella term “assistance animals” to cover all types of animals that provide assistance to individuals with disabilities.
In Part I, the Coach explains who qualifies as an individual with a disability and when you must consider making exceptions to your pet policies as a reasonable accommodation so that individuals with disabilities may keep an assistance animal at your community. We’ll explain what the rules say and boil them down to some Dos & Don’ts—things you should and should NOT—do when handling requests for assistance animals. Then you can take the Coach’s Quiz to see how much you’ve learned.
Coach’s Tip: In Part 2, next month’s lesson will focus on common questions about assistance animals, including weight and size limitations, breed restrictions, requests for multiple animals, health and safety concerns, and how to address property damage from assistance animals.
WHAT DOES THE LAW SAY?
The federal Fair Housing Act (FHA) bans housing discrimination against individuals with disabilities, including the refusal to make reasonable accommodations in rules, policies, practices, or services when they’re necessary to provide individuals with disabilities an equal opportunity to use and enjoy their home at the community.
When someone requests a reasonable accommodation, she’s asking for an exception to your rules or policies, whatever they may be, which she says is needed because of a disability. So the reasonable accommodation provisions come into play whenever an individual with a disability wants to use an assistance animal in communities that either prohibit or impose restrictions or conditions on pets at the community. Like all reasonable accommodation requests, the determination of whether an individual has a disability-related need for an assistance animal involves an individualized assessment, according to HUD.
Federal fair housing law broadly defines “disability” to mean physical or mental impairments that substantially limit one or more major life activities. That covers a lot of people since it applies to a wide variety of physical and psychological conditions—many of which aren’t obvious or apparent—as long as the condition is serious enough to substantially limit major life activities, such as seeing, hearing, walking, or caring for oneself.
Under fair housing law, all individuals with disabilities are equally protected—whether they’re physical or mental, obvious or not—so don’t let outward appearances affect how you treat applicants and residents. 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.
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. Nor can you charge an extra fee or pet deposit as a condition of granting a reasonable accommodation for an assistance animal.
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, the ADA permits only individually trained service dogs—and excludes emotional support animals.
But the FHA, which governs multifamily housing communities, is much broader than that. Fair housing law allows not only service dogs, but also any type of animal that provides assistance or emotional support to an individual with a disability. Breed, size, or weight limitations may not be applied to an assistance animal, according to HUD. 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.
7 DOS & DON’TS WHEN HANDLING REQUESTS FOR ASSISTANCE ANIMALS
DO Have a Policy on Pets
DON’T Use It to Keep Out Assistance Animals
Fair housing law doesn’t prevent communities from adopting and enforcing pet policies—as long as they don’t use their policies to keep out assistance animals. Some communities ban pets altogether, while others place limits on the number, type, size, or weight of pets and impose conditions such as extra fees, security deposits, or additional rent charges. Whatever your policy or rules on pets, you must make an exception to allow an assistance animal when needed by an individual with a disability to fully use and enjoy the community.
Remember, assistance animals are not pets under fair housing law, so the pet policy doesn’t apply. For example, HUD says that the community may require applicants or residents to pay a pet deposit, but it can’t require an applicant or resident to pay a deposit for an assistance animal.
Nevertheless, the reasonable accommodation provisions protect only individuals with disabilities—they don’t require communities to make exceptions to no-pet policies for residents who don’t have a qualifying disability. Problems often arise because residents don’t understand what the law actually says or means—if, for example, a resident has an impairment and considers herself disabled, but she doesn’t qualify as an individual with a disability under fair housing law.
Example: In April 2014, a Louisiana resident lost her bid to avoid eviction for violating her community’s no-pet policy, despite claims that she was disabled and needed her dog as an emotional support animal. The lease provided that no pets were allowed without the landlord’s prior written approval. The landlord gave her permission to have two cats, but later sued to evict her after she got a dog.
The resident argued that the landlord couldn’t evict her because the dog was an emotional support animal. She said that she had severe anxiety and allergies, which caused nausea and breathing problems and prevented her from working, and that her “tiny little dog” helped by getting her outdoors and detracting attention away from her. She said that she didn’t believe that she had to be medically diagnosed with a disability to keep the dog as an emotional support animal under fair housing law. The court disagreed and ordered her eviction.
The appeals court upheld the eviction. Although she believed that she had a disability, “merely having a disability does not make one disabled” under fair housing law. She didn’t produce any medical evidence to show that she had allergies and depression—or to corroborate her subjective testimony that her alleged ailments substantially limited any of her major life activities [Mazzini v. Strathman, April 2014].
DO Treat Requests for Assistance Animals as Reasonable Accommodation Requests
DON’T Make Snap Decisions About Assistance Animals
Anytime you get a request for an assistance animal, treat it as a reasonable accommodation request for an exception to your pet policies. The reasonable accommodation rules kick in anytime anyone says he needs or wants something—including an assistance animal—because of a disability. The law doesn’t require that a request be made at a particular time or in a particular manner. The person doesn’t have to mention fair housing law or use the words “reasonable accommodation.”
When you receive a request for an assistance animal, HUD says there are two relevant questions:
- Does the person seeking to use and live with the animal have a disability—that is, a physical or mental impairment that substantially limits one or more major life activities?
- Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks with services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?
If the answer to both questions 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.
But if the answer to both questions is “yes,” then fair housing law requires you to modify or make an exception to your pet policies 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.
The request may also be denied if the animal is a direct threat to your property or the health and safety of others. But HUD warns that you can’t make that decision based on speculation about the animal’s size or breed; you have to look into the specifics of the particular animal involved. It can get complicated, so don’t make snap decisions about whether to allow an animal on that basis without reviewing all the facts.
DO Get Information When Needed to Evaluate Request
DON’T Deny Request When Uncertain About Disability-Related Need for Assistance Animal
Don’t deny a request just because you’re uncertain about whether the person seeking the accommodation has a disability or a disability-related need for an assistance animal. 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—isn’t obvious or apparent.
Just remember: You can’t ask questions about an applicant’s disability or disability-related need for an assistance animal if both are known or readily apparent. The classic example is guide dogs used by blind or visually impaired people. Since both the disability and the need for the animal are readily apparent, you can’t ask for documentation about the disability or disability-related need for the dog.
On the other hand, you may request information from a resident with a known or obvious disability, but only if his need for the assistance animal isn’t readily apparent. As an example, federal 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. So you can ask the applicant to provide information about the disability-related need for the dog—as long as you don’t go overboard by asking for too much information.
Example: In August 2015, a court refused to dismiss claims against a Florida community, which had a no-pets policy, for refusing to allow a resident with a hearing impairment to keep his hearing dog. After living there with the dog for nine months, the resident said he was threatened with legal action unless he removed the dog. He said he explained that it was a service animal needed because of his hearing impairment, but the community requested additional information, including a prescription from a healthcare provider showing how the animal reasonably accommodated his disability; documentation that the animal had special skills or training; and information about how the animal’s special skills set it apart from an ordinary pet.
According to the resident, his healthcare provider verified that he had severe hearing loss that required use of hearing aids and that the dog alerted him to sounds, especially when he was sleeping and therefore not wearing his hearing aids. Despite the documentation, the community allegedly continued to demand additional information and documentation.
The resident sued, but the community asked the court to dismiss the case, arguing that he failed to provide adequate documentation that his animal received any training as a service animal.
The court refused to dismiss the case, ruling that the documentation the resident already provided was adequate and therefore the community wasn’t entitled to ask for further information. The FHA doesn’t require assistance animals to receive specialized training, and multiple courts have rejected a requirement that hearing dogs must be professionally trained or certified.
The court also rejected the community’s claim that it never refused to grant his request for a reasonable accommodation, but was only taking time to perform a meaningful review. The resident accused the community of repeatedly demanding extraneous information not required under the FHA and that by making it a precondition of granting his request, the community effectively and illegally denied him the reasonable accommodation he needed [Smith v. Village Club, Inc., August 2015].
DO Ask for Verification If Resident Doesn’t Appear to Be Disabled
DON’T Reject Request Because Resident Doesn’t Have Obvious Disability
Be careful about how you handle requests for assistance animals from applicants or residents who don’t appear to be disabled. Fair housing law defines “disability” to include a variety of physical and emotional impairments that may not be obvious or apparent, so you can’t reject a request based solely on outward appearances.
If the resident’s disability is not readily observable, 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 be careful: You can’t ask the resident for information about what his disability is or what the animal does to assist him—only for confirmation that there is a disability and that the animal is needed because of that disability.
In general, verification may come from a doctor or a medical professional, peer support group, or reliable third party in a position to know about the individual’s disability—even the resident himself, under certain circumstances. 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.
DO Permit Emotional Support Animals
DON’T Made Exceptions for Service Dogs, But Not Other Assistance Animals
Don’t make the mistake of granting reasonable accommodation requests to allow service animals but not other types of assistance animals, particularly emotional support animals.
You might be confusing the FHA rules with the rules under the ADA—which limits service animals to individually trained dogs and specifically excludes emotional support animals. The ADA rules apply in public places, like hotels and restaurants, but they don’t trump the broader rules under the FHA, which permits all types of assistance animals in housing. According to HUD, the FHA recognizes that assistance animals may include a wide variety of species—not just dogs—that provide various forms of assistance—including emotional support—with or without specialized training.
Example: In May 2015, a Manhattan housing cooperative agreed to pay $85,000 to settle fair housing claims based on its alleged denial of reasonable accommodations to its residents by prohibiting them from keeping emotional assistance animals.
According to the complaint, the 1,672-unit community had no written or established policies or procedures for making reasonable accommodations for individuals who require service or emotional support animals because of a disability. Three residents allegedly got dogs and asked for permission to keep them as reasonable accommodations of their disabilities. Allegedly, the community either denied the requests or failed to respond, and instead instituted eviction proceedings against each of the residents, who then filed federal and state fair housing complaints.
Even after the Justice Department filed suit, the community allegedly continued to pursue eviction proceedings against two of the residents. Ultimately, the government obtained court orders to halt the evictions until the fair housing case was resolved at trial.
Under the settlement, the community agreed to adopt a policy for providing reasonable accommodations to residents with disabilities and train its employees and officers to follow the new policy. The community also agreed to pay one resident $30,000 and a second resident $55,000, along with other damages, and to let them keep emotional assistance animals in their units. The third resident entered into a separate settlement [U.S. v. East River Housing Corp., May 2015].
DO Promptly Consider Requests for Assistance Animals
DON’T Put Up Roadblocks or Drag Your Feet on Reasonable Accommodation Requests
Ensure prompt consideration of requests for reasonable accommodations, including requests by applicants or residents for an assistance animal. The law requires an individualized assessment of reasonable accommodation requests, but don’t make the process so difficult that it unreasonably delays a decision on a request for an assistance animal. An undue delay in responding to a reasonable accommodation request may be deemed a denial, triggering a fair housing claim.
Example: In June 2015, the Justice Department announced that the owner of the largest affordable housing cooperative in New York agreed to pay a $50,000 civil penalty and dedicate as much as $600,000 in compensation to resolve allegations that it failed to provide reasonable accommodations to people who required assistance animals. Specifically, the government accused the community of maintaining and using an overly burdensome and intrusive policy governing waivers of its no-pets rule, which deterred and prevented people with disabilities from obtaining reasonable accommodations in violation of fair housing law.
In its complaint, the government alleged that before changing its policy in 2011, the community’s application for a reasonable accommodation to its no-pet rule consisted of five forms (including one to be completed only in blue ink and another to be typewritten), prohibited certain breeds of dogs, required animals to be neutered or spayed, imposed annual renewal requirements, and required applicants to provide their medical records. Although the community twice amended its policy, the government claimed that it left in place many provisions from the first policy, including a ban on certain breeds of animals, which could be waived based only on an applicant’s “medical need” for that particular breed [U.S. v. Riverbay, June 2015].
DO Watch for Potential Retaliation Claims
DON’T Retaliate Against Anyone for Making Disability-Related Requests
Watch out for potential retaliation claims when handling requests to keep assistance animals by residents with disabilities. It’s unlawful to retaliate against applicants, residents, or any others because they’ve exercised their fair housing rights by requesting a reasonable accommodation or filing a fair housing complaint against you. Under fair housing law, discrimination and retaliation are separate violations, so you could be liable for retaliation if you take adverse action against a resident solely because he requested a reasonable accommodation for an assistance animal—even if the discrimination claim is ultimately dismissed.
Unless you’re careful, things can quickly get out of hand, if, for example, you discover that a resident has been keeping a dog in her unit despite your community’s no-pet policy. You tell her that she must remove the dog, but she insists she’s disabled and that it’s an assistance animal, so you have to let her keep it.
At that point, it’s dangerous to take further action against her for violating your rules, particularly if she takes it to the next level by filing a fair housing complaint against you. You could face liability for disability discrimination for refusing the request if she’s legally entitled to keep the animal. Even if she’s not, she could charge you with retaliation for taking action against her for pursuing the request.
Example: In November 2014, the owners of a Washington community agreed to pay $25,000 to resolve disability discrimination claims for refusal to grant a reasonable accommodation to waive a $1,000 pet deposit for a resident with mental disabilities who needed a dog as an emotional support animal.
According to the resident, she told the owners that she had post-traumatic stress disorder and depression and wanted a dog to assist with her disabilities, but they wanted her to pay a pet deposit, so she didn’t get the dog until several years later. Despite several attempts to provide documentation of her disability and need for the emotional support animal, she claimed that the owners refused to waive the $1,000 pet deposit.
The resident filed a HUD complaint, but after that, she alleged, “things started to get uncomfortable.” Among other things, she said one of the owners made intimidating statements by saying that she knew all the local judges and the resident would lose if she brought it to court.
The court refused requests by both parties for judgment without a trial. On the retaliation claim, the court ruled that the resident engaged in a protected activity by filing the HUD complaint and that the owner’s alleged statement that she knew all the judges and that the resident would lose if she brought the case to court could be evidence of an intimidation or threat because of her protected activity.
Under the settlement, the owners agreed to pay $20,000 to the resident and a $5,000 penalty, adopt a reasonable accommodation policy, and comply with other requirements [U.S. v. Barber, October 2014].
- Fair Housing Act: 42 USC §3601 et seq.
The Coach welcomes your comments!
If you have questions, comments, or tips on dealing with requests for assistance animals, we’d love to hear from you! Post your questions in our LinkedIn group, Fair Housing Coach, at https://www.linkedin.com/grp/home?gid=3086427. Though we can’t offer legal advice to address specific situations, we’ll cover as many as we can in an upcoming lesson.
Nadeen W. Green, Esq.: Senior counsel, For Rent Media Solutions™, 294 Interstate N. Pkwy., Ste. 100, Atlanta, GA 30339; (770) 801-2406; firstname.lastname@example.org.
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|October 2015 Coach's Quiz|