One of the things that’s easy to do is forget that laws do not exist in a vacuum. On the employment side, you see this all the time. For example, under the Americans with Disabilities Act, the critical question is whether a person can perform the essential functions of the job with or without reasonable accommodations. However, let’s say that that person takes leave to deal with a serious medical condition under the Family and Medical Leave Act. When seeking to come back, the employer can require that the person be certified as being able to come back. However, that analysis of whether the person can come back after family and medical act leave, specifically does not talk about whether the person can do the essential functions of the job with or without reasonable accommodations. Therefore, as I have written in the past, an employer might make the mistake of saying well you can’t come back from family and medical leave because you are not certified, but under the Americans with Disabilities Act that person could do the job with or without reasonable accommodations. In that situation, the employer might be satisfying the terms of the Family and Medical Leave Act but at the same time be violating the Americans with Disabilities Act. Of course, I am assuming that the person for purposes of this discussion that the person has a disability under the Americans with Disabilities Act.
A similar issue exist with the Americans with Disabilities Act and the Fair Housing Act. Final regulations implementing title II and title III of the Americans with Disabilities Act make it quite clear that service animals are restricted to trained dogs, and while trained miniature horses are not considered service animals, they count as well. However, what if you have a student in a dormitory that uses an animal to accommodate a disability and that animal is not specially trained? In that eventuality, does the college have to allow that animal? Only the courts will know for sure. However, it may well depend upon whether the Fair Housing Act is involved or the Americans with Disabilities Act is involved. Cases do hold that the Fair Housing Act applies to rooms in a college dormitory. Thus, a college that says no to an animal that is neither a service animals under the Americans with Disabilities Act nor a trained miniature horse with respect to that student’s ability to effectively access his or her dormitory room, may or may not be okay under the Americans with Disabilities Act but may well run into problems under the Fair Housing Act.
A case that illustrates the difference between the Americans with Disabilities Act and Fair Housing Act is Fair Housing of the Dakotas Inc. v. Goldmark Property Management, Inc., 778 F. Supp. 2d 1028 (D. North Dakota 2011). In that case, Goldmark property management Incorporated had a policy whereby they waived additional fees regarding people who had specially trained assistance animals but would not waive those fees with respect to people who did not have trained assistance animals, but who did have other animals that were used to accommodate their disabilities. The people who did not have specially trained animals but needed other animals to accommodate their disabilities filed a claim against the defendant arguing that the policy violated the Fair Housing Act. In agreeing with the plaintiff that a disparate impact claim could survive a motion for summary judgment, the court noted as follows. First, the court recognized that the Americans with Disabilities Act implementing regulations focused on service animals and the specialized training that they need. However, the Fair Housing Act does no such thing. Second, the court noted that the Fair Housing Act, which applies to dwellings, and the Americans With Disabilities Act, which applies to employment, accessing governmental entities, and places of public accommodations have different purposes (one to help a person live in their home and the other to accommodate a person out in the world) and therefore, it wouldn’t be unexpected that different rules would cover the different situations. Third, the Department of Justice has specifically said that while emotional support animals do not qualify as service animals under the Americans with Disabilities Act regulations, they may nevertheless qualify as a reasonable accommodations for persons with disabilities under the Fair Housing Act. Finally, the Department of Housing and Urban Development has made it clear in its regulations that the Fair Housing Act applies to support and therapy animals in addition to service animals as defined in the Americans with Disabilities Act regulations. The court then went on to say that the plaintiffs had satisfied what was necessary to defeat a summary judgment motion.
The purpose of this discussion is not to give to give a treatise on the fair housing act. Rather, the purpose of this discussion it to illustrate that the same factual scenario may give rise to multiple causes of action with different rules.