Must You Accommodate Your Resident’s Pet Fluffy Under Fair Housing Laws
By Catherine M. Corfee, Esq.
You are operate a homeowners association or an apartment complex and a member hands you a psychologists’s note which reads, “my client’s pet fluffy helps calm my client’s anxiety attacks so please accommodate him regarding your “no-pet” policy.” You have a no-pet policy, what do you do? You may operate a hotel and one of your guests needs her rottweiler to stay in a room. This article addresses your obligations and helpful tips in responding to requests for accommodations under the Federal Fair Housing Act (FHA), the California Fair Employment Housing Act, and of course, the ADA (American’s with Disabilities Act).
Does Fluffy come in? The problem is, you are not a doctor, you are running a tight ship, and you may even be somewhat suspicious because the person does not look disabled. However, persons with mental disabilities are protected by Fair Housing laws and the ADA.
Your Obligations - Fair Housing Laws and the ADA
The FHA and California Fair Housing Employment Act (FEHA) both prohibit discrimination in housing because of one’s physical or mental disabilities, among other classifications. Cal. Gov. Code §§12993(a);42 USC §3604; §3605; §3606. The ADA provides that no individual with a disability should be denied equal access to the goods and services offered by the public accommodation. A public accommodation includes hotels, motels, and time shares, apartment complexes, homeowner’s associations and so forth.
Housing discrimination is broadly defined. In general, no owner or managing agent can deny an opportunity for a disabled individual for equal housing. Defining equal housing is difficult because discrimination is determined on a case by case basis. Examples are illustrative.
In one case, discrimination existed where the apartment failed to change its parking policy to enable a disabled individual to access to his unit. They had a “first come first serve” policy and declined to modify the policy for the disabled person who requested indoor parking to be closer to his apartment. The individual was forced to find parking off site, which was difficult and unsafe because he had to travel a long distance to reach his house. The court held that failing to modify the parking policy was discrimination because modifying it would not have caused an undue hardship, and it would have provided the individual with access to his apartment complex. As to the “first come first serve” policy, the able bodied could be bumped because they did not have problems accessing their apartment.
To decline an accommodation, you must have a very good reason for such. You must show a legitimate and significant undue hardship. Mere speculation of an undue hardship will not suffice. You may need to produce your financial statements and obtain a bid on the cost to make the alleged accommodation to challenge the requested accommodation. For example, perhaps you have an old apartment complex with three floors and have no elevator. If providing an elevator be a significant cost compared to your operating budget, you might not have to put one in. The courts consider various factors in determining if you qualify for this defense, including whether you own other related entities and whether you can pool your financial resources. Other factors include, the number of employees, the size of your organization, the nature and cost of the action, the effect on expenses or impact on the operations by making the changes.
Under housing law; the accommodation must be reasonable. Under the ADA, the accommodation must be easy to do without much difficulty or expensive. The “expense” defense is difficult to prove because at a minimum you must provide some affordable changes such as adding grab bars, striping a handicap parking space, widening doors to be 32" clear, and so forth.
What Is a Disability and How Would You Know?
In California, almost anyone can have a disability. To prove entitlement to equal housing, a person must have a “limitation” of a major life activity, which is of central importance to daily life. Federal law is more strict, requiring that one have a “substantial” limitation of a major life activity.
The United Supreme Court has held that being limited in performing household chores, bathing and brushing one’s teeth are major life activities. The daily activities must be common to all as compared to the average person, the disabled individual is limited in performing such. Toyota Motor Manufact. Kentucky, Inc. v. Williams (2002) 534 US 184. For instance, not being able to fly is not a major life activity for the average person. Additionally, if one is limited or substantially limited in performing the following tasks, then the person may have a disability:
• Caring for oneself, walking, seeing, hearing, speaking, breathing, sitting, standing, etc.;
• Eating;
• Mental and emotional processes, such as thinking and concentrating;
• Interacting with others;
• Sleeping.
Depression and stress can be a disability if it limits the person’s ability to perform a major life activity. The more severe and chronic it is, the more likely it will constitute a disability.
But You Are Not a Doctor So How Would You Know?
As a Homeowner’s Association or apartment complex, etc., if someone indicates they have a disability and needs an accommodation, you have the right to verify they have a disability as defined by the federal and state laws. This may not be practical for hotel/motel owners, but they have this right as well. You may require a medical certificate from the person’s healthcare provider. A good ADA attorney can help you draft a form requiring the person to provide it to their health care giver. However, you have to be careful in not violating one’s privacy rights relating to sensitive medical information.
FHA and FEHA do not specify whether you can obtain a second opinion. However, by borrowing other federal regulations similar to this law, you may be able to get a second opinion but only if you have good cause and suspect one’s alleged disability. This is currently permitted by employers under the federal Family Medical Leave Act (FMLA). That Act allows an employer to obtain a second opinion of an employee’s alleged serious health condition, but only if the employer “doubts” that the person is disabled. And, the second opinion must be at the employer’s expense. 29 USC §2613(c). You would need excellent evidence supporting your doubt, such as witnessing one jogging who claims they need a handicap parking space. This is an aggressive option. In the interest of truth and justice, you should not be required to accept only one doctor’s opinion of his patient’s alleged condition. In one of the case I handled, a women claimed she had a bad back, yet she was routinely jogging and riding a bike. The client felt that this individual had ulterior motives for seeking the accommodation, and in such a case, it might have been a good idea to obtain a second opinion.
In the case of Fluffy, you may have doubts because it could be an area of abuse. The love of a pet can be very strong and, no doubt, a pet could have a very therapeutic benefit. Your policy of requiring medical certification of the person’s alleged disability should be evenly applied to all requesting an accommodation or you could be accused of discrimination based on sex, race, etc. One thing is for sure, you may not request Fluffy’s certification of the Dog’s ability to assist the disabled person.
Once you receive the healthcare provider’s note, you may contact the doctor to get additional supporting information about the limitations on major life activities, not the person’s private medical condition. You are not entitled to know what the condition is because that is a very private concern.
Fair Housing Law and the ADA is a mixture of the health care world and a legal maze, probably not anticipated by owners and operators of hotels, motels, Inn’s, Housing Associations, apartment complexes, and the like.
_______________________________
Catherine Mary Corfee is the principal attorney of Corfee Stone and Associates practicing
Employment Law, ADA Access and Fair Housing Law defense