Most websites for housing providers and other businesses should be accessible to individuals with disabilities. But how is this enforced? On September 25, 2018, the U.S. Department of Justice issued a letter to a member of the U.S. House of Representatives in which it took the position that “noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.” The DOJ’s position, significantly, does not require conformance with the voluntary Web Content Accessibility Guidelines (WCAG) 2.0 to comply with the ADA in all instances. The DOJ expressly allows for flexibility in how individuals with disabilities are provided access to digital and online content, but does not provide guidance in the implementation of such flexibility.

The DOJ’s letter responds to a June 2018 inquiry from members of the House of Representatives from both parties, which asked the DOJ to “state publicly that private legal action under the ADA with respect to websites is unfair and violates basic due process principles” absent clear guidance from the DOJ on website accessibility. In its response, the DOJ noted that for more than 20 years, the DOJ has interpreted the ADA to apply to websites of places of public accommodation. The DOJ’s response also clarified that the absence of a specific regulation does not mean that websites are not subject to the ADA’s accessibility requirements. The DOJ indicated in its letter a willingness to work with Congress on legislative action to address the increased website accessibility litigation risk faced by businesses.

The flexible approach to website accessibility expressed by the DOJ provides businesses with additional opportunities to review ADA accessibility compliance programs, as well as responses to increased litigation risk regarding the accessibility of websites.

Attorneys in Ballard Spahr’s Accessibility Group regularly assist housing providers and other clients in defending against website accessibility demand letters and litigation, and advise clients on ADA accessibility policies and procedures.

Earlier this month, the U.S. Department of Justice (DOJ) and Kent State University (KSU) settled claims of discrimination under the Fair Housing Act (FHA) related to the use of emotional support animals in university housing. KSU and its employees were charged with disability discrimination for failing to allow a student who suffered from a psychological disability to keep an emotional support dog in her university apartment as a reasonable accommodation.

Although KSU’s “no pet” housing policy provided an exception for trained service dogs under the Americans with Disabilities Act, it violated the FHA’s broader reasonable accommodation rules which allow for the use of any kind of animal (including comfort animals) to treat the effects of a person’s disability. The U.S. District Court for the Northern District of Ohio held that because the FHA’s definition of a dwelling applied to student and university-owned housing, KSU was also obligated to follow the FHA’s guidance to determine whether to approve the use of an emotional support animal as a reasonable accommodation.

As part of the settlement, KSU agreed to adopt a new housing policy and to pay $145,000 that will be apportioned among former students previously denied reasonable accommodations for emotional support animals, a fair housing organization, and the United States. For more information on the case and settlement, see the recent Legal Alert prepared by members of Ballard Spahr’s Housing and Higher Education groups.

With only very limited exceptions, the Fair Housing Act applies to nearly all rental units in the United States, regardless of whether they are privately or publicly funded. HUD-assisted housing must observe additional fair housing and accessibility requirements. Housing providers should consider reviewing their policies for emotional support animals and ensuring that they comply with all the fair housing requirmenets applicable to their properties.

According to a recent Department of Justice (DOJ) settlement, some pets are allowed in the house. HUD filed and settled a civil rights lawsuit against RiverBay Corporation, a New York City-based affordable housing cooperative manager that owns and operates 15,372 residential units – the largest housing cooperative in the country, claiming the company maintained no-pets policies violating Fair Housing Act and Americans with Disabilities Act (ADA) guidelines for accommodating individuals with disabilities.

In light of the settlement’s complexities, the DOJ issued new guidance on ADA distinctions of service animals and their purpose, and clarified requirements for accommodating individuals who need them. The guidance restates that government agencies, public-serving businesses, and nonprofit organizations must comply with ADA service animal requirements, but also emphasizes that institutions of higher education should consider all efforts to remain compliant with ADA standards while balancing to the equal access needs of students with allergies on campus and in dormitories. The DOJ provides additional information that clarifies questions businesses and property managers may have regarding public health and safety concerns for service animals accessing pool grounds, open food areas, and hospital facilities.

While there are likely to be future concerns and developments regarding ADA requirements for service animals, it is important to remain mindful of the way private policies relate to the access and compliance standards set forth for those with service animals. Please see our legal alert for additional considerations and discussion points.

UniversityIncreasingly, students with disabilities bring service animals to college campuses. This means that educational institutions must sort through an array of competing federal and state laws governing the use of such animals in school communities. The Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and the Fair Housing Act have implications for which animals are permitted in different parts of campus, and what school officials may request of students with disabilities. State laws also contain requirements regarding the accommodation of service animals. Some states may have narrow definitions of services animals, while others are more permissive.

The Americans with Disabilities Act’s strict interpretation of the definition of a service animal may result in a wheelchair-bound student with a service dog receiving less onerous treatment than a student with bipolar disorder seeking to live in student housing with an assistance animal under the FHA and HUD’s interpretation of the ADA and Section 504.

The ADA, Section 504, and the FHA prohibit discrimination on the basis of disability and require educational institutions to provide access to, or accommodate to some degree, animals used by students with disabilities in school communities. HUD has interpreted the FHA to cover residence halls or dormitory rooms, and in United States v. University of Nebraska at Kearney, a district court sided with HUD’s position. In ruling on the government’s and university’s cross-motions for summary judgment, the court concluded that the university’s student housing is a “dwelling” within the meaning of the FHA.

The ADA defines a “service animal” as a dog that is individually trained to do work or perform tasks for the benefit of a person with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Examples of tasks or work include alerting individuals who are deaf or hard of hearing to the presence of people or sounds, assisting an individual during a seizure, and retrieving items for people with mobility impairments. The ADA also creates an exemption for certain miniature horses that have been similarly trained. Animals other than dogs and miniature horses, however, are not service animals under the ADA. The U.S. Department of Education has indicated that it interprets Section 504 in a manner consistent with the ADA, but has not provided detailed guidance.

This narrow definition of service animals contrasts sharply with HUD’s inclusiveness under the FHA and Section 504. HUD interprets the FHA and Section 504 to require the provision of reasonable accommodations to individuals with disabilities who have “assistance animals.” Assistance animals, like service animals, work and perform tasks for the benefit of individuals with disabilities. Assistance animals may, however, also provide emotional support to persons who have a disability-related need for such support. Assistance animals do not need to be trained or certified; they also may be animals other than dogs and miniature horses, according to HUD’s most recent guidance.

Educational institutions therefore find themselves in a position where they must apply differing rules and analyses depending on whether a student brings a dog, miniature horse, or reptile on campus and to residence halls.

A student who is blind and uses a trained service dog on campus enjoys broad access. If it is “readily apparent” that the dog is trained to perform a task related to the student’s disability―for example, school staff observe the dog guiding the student on campus—the ADA prevents the school from making any inquiries about the student’s right to have the dog on campus. The service dog generally is entitled to access to the campus unless the student is unable to control the dog or it is not housebroken. If it is less clear that the dog is a service animal, school staff may ask only two specific questions of the student – whether the dog is a service animal required because of a disability and what work or task the dog is trained to perform.

The regulations get confusing, however, when animals other than dogs are involved. If, for example, the student brings a miniature horse rather than a service dog to campus, the school may interact more with the student and ask further questions to obtain necessary information. A student with a reptile, in contrast, is excluded from protection under the ADA but potentially could be permitted in student housing under the FHA and Section 504.

HUD’s guidance states that housing providers should use general reasonable accommodation principles in evaluating requests to bring assistance animals into covered housing.This means that educational institutions may inquire whether the individual seeking to use the animal has a disability and a disability-related need for the animal. If so, the person with a disability may live with and use the assistance animal unless doing so would impose undue financial and administrative burdens or would fundamentally alter the nature of the housing provider’s services. In some cases, the school may ask the individual with a disability for supporting documentation, including medical documentation, or exclude animals that pose a direct threat to the health or safety of others if the threat cannot be reduced or eliminated through another reasonable accommodation.

These conflicting regulations place educational institutions in the position of having to be more permissive in residence halls than they are in other areas of campus. While it may make sense that federal laws allow students, particularly those with mental and emotional disabilities, to live with emotional support animals in their dormitories, it may be difficult to restrict these animals to residence halls when other individuals with disabilities are permitted broad access for their service dogs and, perhaps, horses.

Educational institutions are advised to develop or clarify policies and procedures for the treatment of service and assistance animals on campus, including how to address situations where other students with disabilities (such as certain students with allergies) have competing rights. Training also should be provided to staff in disability services offices and residence halls regarding the requirements of these laws.