Reasonable accommodation or nuisance? Service animals for the disabled.

• Author: Blandon, Elizabeth
• Position: Americans with Disabilities Act

`How far you go in life depends on your being tender with the young, compassionate with the aged, sympathetic with the striving, and tolerant of the weak and strong. Because someday in your life, you will have been all of these." With these words, George Washington Carver stressed the importance of benevolence toward the less powerful members of society. Such a lenient attitude toward others is also reflected in the Americans with Disabilities Act of 1990, 42 U.S.C. [subsections] 12101 et seq. ("the ADA") and the Fair Housing Amendments Act of 1988, 42 U.S.C. [subsections] 3601 et seq. ("the act"). With these laws, Congress prohibited the discrimination of the disabled in public accommodations and housing.(1) Both statutes require housing providers to make reasonable accommodations for the disabled. A simple example is the addition of a ramp to a walkway enabling someone who uses a wheelchair to access their house or apartment. This article discusses whether the ADA and the act require housing providers to make exceptions to no-pets policies to allow the disabled to live with service animals, such as dogs and cats. It goes beyond the use of seeing-eye and hearing-ear dogs to the more controversial service animals, such as those that comfort persons with depression or other emotional difficulties. Are these pets nuisances, as claimed by landlords and condominium and homeowner associations, or reasonable accommodations required by federal law?

The Laws

While most people are familiar with the use of seeing-eye dogs for the sight impaired and do not question their necessity, the public is less aware that federal discrimination laws do not differentiate between physical and mental disabilities when it comes to service animals.(2) The act and the ADA approach disability similarly. Both laws protect a person when a physical or mental impairment "substantially limits" one or more major life activities, such as the ability to work, walk, talk, see, or hear. 42 U.S.C. [subsections] 3602(h), 12102(2). Both measures also protect those with histories of disability and those regarded as disabled. Id. The extent to which a person's major life activity must be limited and whether a medication-controlled impairment constitutes a disability, however, are hotly contested issues.(3)

The purpose of the ADA is to eliminate discrimination against individuals with disabilities. 42 U.S.C. [sections] 12101. The ADA prohibits discrimination in various aspects of life, including employment, and the use of public services, public transportation, and public accommodations. A public accommodation is defined to include a "place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of the proprietor." 42 U.S.C. [sections] 12181(7)(A). Under the ADA, no disabled person shall be discriminated against "in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation." 42 U.S.C. [sections] 12182(a).

In addition, the ADA prohibits the discrimination of the disabled as to public services, such as bond financing, and programs, such as housing. 42 U.S.C. [sections] 12132. Therefore, denying someone the benefit of that service (the funding and provision of low income housing) by preventing them from living in the low income housing because of his or her disability is also illegal. Independent Housing Services of San Francisco v. Fillmore Center Assoc., 840 F. Supp. 1328, 1344 (N.D. Cal. 1993). To prove a public program violates the ADA, a plaintiff must show that: 1) he or she is a qualified individual with a disability; 2) he or she was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by a public entity; and 3) such exclusion, denial of benefits, or discrimination was by reason of the disability. Green v. Housing Authority of Clackamas...