I’m Passionate about service animals and truly believe in their amazing abilities to detect and protect their owners!
Handling competing disabilities under fair housing laws can be difficult. As an investor this has content pertinent to Owners/Landlords, for example, how does a landlord balance one resident’s request for a service or assistance animal with another resident’s severe allergy to animal dander? Neither the Department of Justice (DOJ) nor the Department of Housing and Urban Development (HUD) provides much guidance beyond instructing housing providers to find a way that accommodates both.
The Iowa Supreme Court recently tackled this issue with a new approach under the Iowa Civil Rights Act. A landlord was faced with a challenging situation when seven (7) months after Ms. Cohen, a resident with severe allergies to pet dander, moved into the no-pet building, a new resident, Mr. Clark, requested and was granted a waiver for his assistance animal. Despite the landlord’s attempt to accommodate both disabilities with use of air purifiers and different stairways, Ms. Cohen continued to experience allergy attacks, ostensibly from exposure to Mr. Clark’s assistance animal. When the landlord refused to evict the dog from the premises, Ms. Cohen filed a lawsuit alleging that the request for an assistance animal wasn’t reasonable because of her severe allergies and should have been denied.
The court resolved the matter by adding a new “priority-in-time” factor into a balancing test. After they deemed both disabilities “equal,” they held that Ms. Cohen had priority because she moved into the building first and as such, the accommodation for Mr. Clark’s assistance animal was unreasonable.
This is a bizarre outcome given federal fair housing laws and the court’s own reasoning. I urge caution before using this holding as a lodestar when faced with competing disabilities. With the devil lodged squarely in the details, a closer inspection of the facts and analysis raises more questions than it answers. While there are many issues with this decision, this post will focus on the “priority-in-time” factor the court created.
The majority opinion failed to explain how they determined that the need for an assistance animal versus the need for a pet-dander free environment was effectively a wash. In a rather odd admission, the court stated that outcome would have been different had the resident requested an accommodation for a seeing-eye dog, essentially finding that sight impairments are more important than mental health issues. Such a finding likely violates the Fair Housing Act if put into practice.
Moreover, this standard puts the housing provider in the uncomfortable position of serving as the arbiter of a disability hierarchy. Housing providers are not qualified to determine whether one disability should take priority over another. The court’s suggestion that housing providers triage impairments in this way lies beyond the scope of their expertise, is inappropriate to expect of them, and increases the risk of violating fair housing laws.
Clearly, housing providers may deny a request for an assistance animal if the specific animal poses a direct threat to the health and safety of others. However, the facts were murky as to whether the dog posed a direct threat to Ms. Cohen. While Ms. Cohen was severely allergic to cats, her allergies to dogs were more speculative. Additionally, she stated that she thought there was a cat in the building, muddling the source of her allergy attacks.
When a request poses a direct threat to others, housing providers are still required to engage in the interactive process to seek alternative accommodations that can eliminate or significantly reduce the threat. The record in this case shows that the landlord failed to fully explore other reasonable alternatives that could have mitigated the risk of triggering an allergy attack, such as designating certain floors as allergy-free or even moving one party to an available unit in another one of the landlord’s nearby buildings. Such options are not ordinarily permissible for reasonable accommodation requests, but because life doesn’t exist in a vacuum, sometimes it’s necessary to engage flexibility and ingenuity to establish the healthiest and safest environment for everyone involved.
The final takeaway? Before denying a reasonable accommodation due to conflicting needs between residents with disabilities, the best course of action is still the most direct: keep the lines of communications open with residents and make sure you contact your attorney.
Dan Swings Blog 