I recently obtained a successful settlement on behalf of S.G., an individual with mental health disabilities who was denied housing on the basis of her use of an assistance animal. The case raised some interesting issues, discussed below.
S.G. and her family had applied to rent a house in Poway, California. After being accepted as a tenant by the housing provider, S.G. requested permission to reside with an assistance animal. Immediately upon receiving the request, the housing provider sent S.G. a text message, withdrawing the offer to rent. I filed suit on S.G.’s behalf in the Southern District of California, alleging intentional discrimination in violation of the Fair Housing Amendments Act (“FHAA”), 24 U.S.C. § 3601 et seq., California’s Fair Employment and Housing Act, Cal. Gov’t Code § 12955 et seq., and California’s Disabled Persons Act, Cal. Civ. Code 54.1(b). These laws prohibit discrimination against an individual with disabilities due to his or her use of an assistance animal.
The defendant housing provider asserted two primary defenses in the case: (1) alleged material misrepresentations made by S.G., and (2) defendant’s alleged chronic obstructive pulmonary disease (“COPD”). The defendant also argued that the Court should ignore the defendant’s failure to engage in an “interactive process” with S.G. regarding her accommodation needs, as doing so would “elevate form over substance.”
With regard to the defendant’s first argument, the alleged “material misrepresentations” made by S.G. were never revealed prior to settlement. However, I have seen this argument previously. Housing providers will often argue that a potential tenant’s failure to reveal the need for an assistance animal during the application process is a material misrepresentation and/or constitutes fraud, voiding the housing contract. This is simply not true. The FHAA “does not require that a request [for accommodation] be made in a particular manner or at a particular time.” Book v. Hunter, No. 1:12-CV-00404-CL, 2013 WL 1193865, at *4 (D. Or. Mar. 21, 2013), appeal dismissed (Nov. 26, 2013)(citing Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act (May 17, 2004), hereinafter “Joint Statement”, at Question 12). In fact, the FHAA actually prohibits housing providers from requiring prospective tenants to disclose their disabilities or accommodation needs pre-offer or as part of the application process. Joint Statement at Question 16. Although housing providers may prefer that prospective tenants disclose their disabilities and need for accommodation in the rental application process, there is no legal duty to make such disclosures. It follows, therefore, that the failure to make such disclosures is not a valid reason to deny an individual tenancy or grant his or her accommodation request. Book v. Hunter, at *4 (finding that while a housing provider “may have preferred” that the plaintiff make her request for a companion animal on her rental application, the FHA does not allow housing providers to deny requests for that reason).
Additionally, and I’ll mince no words here, the material misrepresentation / fraud argument is simply stupid. A housing provider is essentially saying that had they known about the prospective tenant’s disability or accommodation need, they would not have offered to rent to the individual in the first place. Defending discrimination with discrimination? Classic.
Alleged Dander Sensitivities
The defendant’s second defense was that she was severely susceptible to dog dander dude to COPD and therefore her withdrawal of the offer to rent to S.G. was justified. This argument also had significant problems. Among them:
- The rental property was not a shared rental; the defendant was not going to be living on site and encountering S.G.’s assistance dog.
- The defendant was 76 years old. The likelihood of her being on-site for significant periods of time to conduct or oversee repairs was slim; she was assumed to use contractors for such things.
- The defendant works as a real estate agent. It was anticipated that through discovery I would be able to establish that the defendant has visited clients and pieces of real estate where animals are present, without any significant adverse impact.
- There is no scientific evidence showing that people with COPD should avoid dogs. In fact, many individuals with COPD utilize assistance animals themselves for help with mobility and carrying items.
- My review of the defendant’s Facebook page revealed that she had a dog of her own, casting serious doubt on the veracity of her alleged health concerns. (Yes, defendants, be warned: if I’m suing you, I will also google-stalk you.)
Failure to Engage in the Interactive Process
Additionally, and most importantly, if the presence of an assistance animal was truly going to create medical concerns for the defendant, she had a legal obligation to: (1) engage in an interactive process with S.G. regarding her accommodation needs; (2) conduct an individualized assessment regarding any perceived threat presented by S.G.’s assistance dog; (3) determine whether there were accommodations that could reduce or eliminate any actual risk of harm; and (4) explore how S.G.’s need for an assistance dog could have been accommodated prior to denying her family housing. See, Joint Statement at Question 7. See also Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs, FHEO Notice: FHEO-2013-01 (April 25, 2013). The defendant failed and refused to engage in such a process. The defendant did not disclose her alleged health concerns; sought no information about S.G.’s dog to assess the actual nature or severity of any alleged risk; and failed to explore the availability of mitigating measures or alternative accommodations. Rather, the offer to rent was simply, and abruptly, withdrawn.
The defendant claimed that there was “no accommodation” that could avoid her exposure to the dander of S.G.’s assistance dog short of compelling her to hire a property manager or property management company. On this basis, the defendant suggested that requiring compliance with the interactive process obligation would elevate “form over substance.” In response, I pointed out that the purpose of the interactive process is to share information and ideas to determine whether a tenant’s needs can be reasonably accommodated. The defendant – who again, had a dog of her own – could not unilaterally conclude that there was no way S.G.’s need for an assistance dog could be accommodated in her rental. Had the defendant bothered to comply with the interactive process requirement, she would have learned that Plaintiff’s assistance animal was a breed characterized by low dander and deemed a good fit for individuals with dander allergies or sensitivities. Moreover, there were ways that anticipated contact with dog dander during periodic inspections or other on-site visits by the defendant could have been mitigated or avoided, from increased house cleaning and/or dog grooming, to use of an allergy mask.
Happily, this federal action was settled at an Early Neutral Evaluation, resulting in a change in the defendant’s rental policies, fair housing training and a monetary payment. S.G. now lives in alternative housing with a non-discriminating landlord and her assistance dog.