By Joel Maxson
A 1988 amendment to the Fair Housing Act added disability as a protected class, and the change continues to spark a lot of Legal Hotline questions. In general, however, accommodation should be the goal rather than searching for a reason to deny.
ORLANDO, Fla. – The Fair Housing Amendments Act of 1988 added disability as a protected class when it comes to fair housing. Simply put, that means that housing providers (definition includes owners and rental agents, among others) cannot refuse to make reasonable accommodations in rules, policies, practices, and services to afford a person with a disability equal opportunity to occupy and enjoy full use of a dwelling.
Although discrimination can take many forms, the most common ways the disabled person would be protected is by being entitled to a waiver of no-pet policies, not having to make a pet deposit, and being free from any other burdens placed on them because of the assistance animal.
Here’s a recent case that helps illustrate why respectful, interactive discussion should be the correct tone any time a request is received. It also shows how accommodation should be the goal as opposed to searching for a reason to deny.
A Florida condominium association was faced with a request for a waiver of the pet weight limit contained in its rules. The request included this note from a health care professional:
Due to mental illness, [unit owner] has certain limitations regarding social interaction and coping with stress and anxiety. In order to help alleviate these difficulties, and to enhance his ability to live independently and to fully use and enjoy the dwelling unit, I am prescribing an emotional support animal that will assist [unit owner] in coping with his disability.
This was followed up a few days later with a second note clarifying that the unit owner already has a therapeutic relationship with a specific dog that was over the association’s weight limit for pets.
Rather than accommodate the request, the association sent the following letter:
1. What is the exact nature of your impairment? How does it substantially limit a major life activity?
2. How long have you been receiving treatment for this specific impairment?
3. How many sessions have you had with [the doctor who wrote the note]?
4. What specific training has your dog received?
5. Why does it require a dog over 25 pounds to afford you an equal opportunity to use and enjoy your dwelling?
The unit owner provided a third brief note from the doctor responding to these questions. The association sent two additional lists of questions, each more detailed than the last, but the unit owner stopped responding after providing the third doctor’s note.
Complaints were filed with HUD and the Florida Commission on Human Relations, and a lawsuit was filed against the association. This resulted in a lengthy court battle, which included a jury trial and an appeal. What was the ultimate outcome for the association? The association had to waive its pet restriction. Additionally, it owed $5,000 to the unit owner, as well as $127,512 in attorney fees.
Although there may be bad actors out there abusing the broad definition of disability currently in place, this case illustrates the dangers an aggressive tone can present. It’s also a reminder that the definition is broad and can cover many types of health issues that may not be readily apparent. A respectful, interactive conversation is crucial so that housing providers can meet the burden of making reasonable accommodation for all persons who are disabled.
For more information on best practices in assistance animal screening, refer to a new 19-page memo issued on Jan. 28, 2020.
Joel Maxson is Associate General Counsel
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