Failure to make reasonable accommodations for a rental applicant or tenant with a disability is, perennially, the most common type of fair housing complaint, accounting for nearly 60 percent of all cases, according to HUD. Many, if not most of these complaints, involve assistance animals. So, that’s where we’ll start our analysis.
Spot the Discrimination Mistake
A landlord threatens to evict a tenant with disabilities for keeping a stray cat in her apartment in violation of the community’s no-pets policy. The tenant says the cat helps her cope with mental anxieties and asks for an exemption. The landlord says no because the cat has no special training or certification in assisting the disabled.
Pitfall: HUD and the U.S. Department of Justice (DOJ) interpret the federal Fair Housing Act (FHA) duty to make reasonable accommodations as requiring exemptions to no-pet policies necessary to enable individuals with disabilities to keep “assistance animals” that directly assist with a disability-related need. “Assistance animals” include dogs or other common domestic household animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities. Significantly, assistance animals need not have any specific certification or training. By contrast, under the Americans with
Disabilities Act (ADA) duty to accommodate applies onlyto “service animals” trained to do work or perform tasks for the benefit of an individual with a disability.
Thus, while the refusal of the landlord in our scenario to accommodate the stray cat might have been okay under the ADA, it violated the FHA.
Example: A Pennsylvania federal court ruled that the DOJ had a legally valid claim against a landlord that took the same position as the landlord in our scenario, and allowed the case to go to trial [United States v. Perry Homes, Inc., 2022 U.S. Dist. LEXIS 87064, 2022 WL 3021040].
Solution: Keep in mind that neither assistance animals nor service animals count as pets and that, unless the ADA applies, you must accommodate both to the point of undue hardship. You may, however, ask for information about the relationship or connection between the disability and need for the assistance animal to the extent the disability is non-observable and/or the animal provides therapeutic emotional support. In addition, you don’t have to accept an assistance or service animal that would create an unreasonable risk of harm, injury, or damage to property.
