The Fair Housing Act – Service/ Emotional Support Animals

My last post, Service Animals/Emotional Support Animals – What You Need to Know, discussed the fact that, if you have rental properties, you need to know the laws on service and emotional support animals. We covered rules laid out by the ADA, but there are 2 agencies that create regulation regarding these animals:

  1. The Americans with Disabilities Act (ADA)
  2. The Fair Housing Act (FHA)

Here we will discuss the additional laws laid out by the FHA. Note that ADA covers commercial areas where FHA covers residential. Also, ADA does not cover emotional support animals but FHA does.

The Fair Housing Act – protects renters from landlord discrimination. It prohibits discrimination of home sales, rentals, and financing based on race, color, national origin, religion, sex, familial status or those with disabilities.

Fair Housing Amendments Act (FHAA) of 1988:


  • Assistance Animal – an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability or provides emotional support that alleviates one or more symptoms or effects of a person’s disability
  • an assistance animal does not have to be individually trained or certified
  • once an assistance animal is approved, the landlord is not permitted to charge any associated pet fees or deposits
  • a landlord is not permitted to put weight or breed restrictions on an assistance animal

What can you require:

  • the prospect or resident must have a disability within the meaning of the Fair Housing Act
  • there must be a disability-related need for the animal

Permissible questions:

  • Is the disability apparent or known?
  • Is the disability-related need for the animal apparent or known?
  • If both the disability and the disability-related need for the animal are apparent and know, you may not ask any further questions and you may not require any additional verification or documentation.
  • If the disability is not apparent or known, you may request reliable documentation of the disability and the disability-related need for the assistance animal.

For emotional support animals, you may request documentation from a physician, psychiatrist, social worker or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability.

You may deny an accommodation request when:

  • it would cause undue financial hardship on the property
  • it would create an administrative burden on the property
  • the specific animal would be a direct threat to the property or would cause substantial physical damage to the property
  • if there is insufficient verification when the disability is non-apparent

The prospect/tenant can make a request from you for their animal in pretty much any manner including something as simple as writing their request on a sticky note. There is no formal request form and you can’t require that they use one that you create.

Your next step is to ask that written verification be provided by the doctor or medical provider. Again, it does not need to be on a specific form. You must accept verification from a reliable third party that confirms the applicant has a disability within the meaning of the Fair Housing Act and confirms that there is a disability-related need for the animal.

Without sufficient verification, you may deny the applicant. And – beware – there are many online sites that provide certifications without requiring any verification of a disability.

How the ADA and FHAA are different:

  • The ADA applies to areas of public accommodation. It does not apply to areas of the property not open to the general public. (i.e. Service animals must be allowed into the leasing office.)
  • The FHAA applies to the entire property. (Qualified service and emotional support animals must be allowed to live in your rental property.)

Most of your concern as a landlord is going to be regarding regulations laid out by the FHAA.

Wow, there’s a lot in those 2 posts. What’s been your experience with service animals?

As I mentioned in the last post, this topic was covered in our Landlord Association Meeting. If you have more questions or need legal assistance in this matter, contact our speaker – Attorney Sean Doyle, [email protected], 919-256-4295.

Is ADHD Protected Under the Americans with Disabilities Act?

The answer to the question is somewhat long and complicated. So we will begin with writing that while someone with ADHD may qualify for protection under the Americans with Disabilities Act, not everyone with the diagnosis of ADHD will qualify. And that may include you or your child.

The Americans with Disabilities Act was established by Congress in 1990. The purpose of the Act is to end discrimination against persons with disabilities when it comes to housing, education, public transportation, recreation, health services, voting, and access to public services. It also aims to provide equal employment opportunities for people with disabilities.

The ADA was written to offer protections to individuals with disabilities, not individuals with any particular diagnosis. The Americans with Disabilities Act seeks to protect individuals with significant impairments in function.

By the way, it is estimated that the population of the United States is over 300 million persons. And it is estimate that about 19% of persons have some type of long-lasting condition or disability. That would be somewhere near 60 million persons. This includes about 3.5% with a sensory disability involving sight or hearing, about 8% with a condition that limits basic physical activities such as walking or lifting. It also includes millions of people with mental, emotional, or cognitive impairments.

Since Congress enacted the ADA courts have had several challenges in defining the scope of the Act.

  • What exactly is a disability?
  • Who would be defined as having a disability?
  • Is having a diagnosis the same as having a disability?

These are some of the questions that the courts have had to wrestle with, not to mention the questions related to how schools, work places, public transportation agencies, and more, are to implement the Act in daily operations with both employees and customers.

So, to the Question: Is Attention Deficit Hyperactivity – ADHD – included in the ADA?

The answer is “Yes, No, or Maybe.”

The ADA defines “disability” as a physical or mental impairment that substantially limits

one or more “major life activities,” such as walking, seeing, hearing, or learning. Having a

diagnosed impairment, such as ADHD, does not necessarily mean that an individual is disabled within the meaning of the ADA.

The ADA does provide for “mental” conditions or mental illnesses, and potentially ADHD fits in this category. But as with physical impairments, the diagnosis of a mental illness or mental impairment such as ADHD is not sufficient by itself to qualify for protection under ADA. Again, having a “diagnosis” is not the same as having a “disability.”

We are not lawyers, and our readers probably are not either, but it is interesting to look at some of the recent court cases regarding the ADA that directly related to children or adults with Attention Deficit Hyperactivity Disorder.

These two cases seem to expand the definition of “major life activities” to include concentration and cognitive functions:

  • Brown v. Cox Medical Centers (8th Cir. 2002), where reportedly the court stated that the “ability to perform cognitive functions” is a major life activity;
  • Gagliardo v. Connaught Laboratories, Inc. (3d Cir. 2002), where reportedly the court held that “concentrating and remembering (more generally, cognitive function)” are major life activities.

But the courts have placed limitations on the scope of the Act as well, and have not just tried to accommodate everyone with ADHD. The court has its limits, and they have ruled that the ADA has its limits.

For example Knapp v. City of Columbus (2006 U.S. App. LEXIS 17081) is the story of three firefighters with ADHD who wanted the City to make accommodations for them in their jobs. The U.S. Court of Appeals for the Sixth Circuit declined to extend ADA coverage to three firefighters who had Attention Deficit Hyperactivity Disorder.

Three firefighters had claimed that ADHD substantially limited their ability to learn, so the City should make accommodations for them. But the court held that the firefighters failed to establish that their ADHD met the standards to qualify as a disability under the ADA.

A very important limitation of Act involved a ruling from an earlier Supreme Court case with Toyota in 2002 which the Sixth Circuit Court used in this case with the firefighters. The Sixth Circuit applied the U.S. Supreme Court’s test in Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).

Under the Toyota Motor ruling the courts must consider whether the person making the claim is unable to perform the variety of tasks central to most people’s daily lives, not whether the claimant is unable to perform the tasks associated with his or her specific job.

When applying this test, the Sixth Circuit wrote that when a person who is seeking protection or accommodations under the ADA can fully compensate for an impairment through medication, personal practice, or an alteration of behavior, a “disability,” as defined by the Disabilities Act, does not exist.

In other words, if a child, teen, or adult with ADHD can “get the task done” or “get the job done” by using medications, applying behavioral management techniques, receiving counseling, using biofeedback, using Attend, or other treatment interventions, then they do not have a disability that is protected under the ADA.

In this court case, all three firefighters testified that taking Ritalin controlled their symptoms, and that they were able to fulfill their family and work obligations. Thus, an ADA disability was not found.

So, it would follow that if you, or your child, could function pretty well at work or in school when taking medication or Attend, or using some other treatment, no disability as defined under the ADA would exist – at least according to the 6th Circuit Court.

Also, it seems that as a result of this ruling, employers under the Sixth Circuit do not need to make accommodations for employees with ADHD under these conditions:

  1. When the disorder has not been shown to substantially impair their ability to perform tasks central to daily life;
  2. When the ADHD symptoms can be improved by medication or other treatments.

Here is a pretty good list from a major university of the conditions that must be met for ADHD to qualify for coverage and protection under the American with Disabilities Act of 1990:

  • The ADHD must cause significant impact or limitation in a major life activity or function;
  • The individual must be regarded as having a disability;
  • The individual must have a record of having been viewed as being disabled;
  • The applicant must also be able to perform the essential job functions with or without accommodations to qualify as an individual with a disability under the meaning of the Act.

To establish that an individual is covered under the ADA, documentation must indicate that a specific disability exists and that the identified disability substantially limits one or more major life activities. Documentation must also support the accommodations requested.

  1. The evaluation must be conducted by a qualified professional, such as psychologist, neuropsychologist, psychiatrist, or other medical doctor who has had comprehensive training in the differential diagnosis of ADHD and direct experience with an adult ADHD population. The name, title, and professional credentials of the evaluator should be clearly stated. All reports should be on letterhead, typed, dated, signed and otherwise legible.
  2. Documentation must be current. The diagnostic evaluation must adequately address the individual’s current level of functioning and need for accommodations. In most cases, the evaluation must have been completed in the last three years. A school plan, such as an Individualized Education Plan (IEP) or 504 Plan, is insufficient documentation for a university, but can be included for consideration as part of a more comprehensive evaluative report.
  3. Documentation necessary to substantiate the diagnosis must be comprehensive and include:
    • Evidence of early impairment. Historical information must be presented to demonstrate symptoms in childhood which manifested in more than one setting.
    • Evidence of current impairment, which may include presenting attentional symptoms and/or ongoing impulsive/hyperactive behaviors that significantly impair functioning in two or more settings. In addition, the diagnostic interview should include information from, but not limited to, the following sources: developmental history, family history, academic history, medical history, and prior psycho-educational test reports.
    • Alternative diagnoses or explanations should be ruled out. The evaluator must investigate and discuss the possibility of dual diagnoses and alternative or coexisting mood, behavioral, neurological, and/or personality disorders that may confound the diagnosis of ADHD.
    • Relevant testing information must be provided and all data must reflect a diagnosis of ADHD and a resultant substantial limitation to learning.
    • Documentation must include a specific diagnosis. The diagnosis must include specific criteria based on the DSM-IV, including evidence of impairment during childhood, presentation of symptoms for at least the past six months, and clear evidence of significant impairment in two or more settings. The diagnostician should use direct language in the diagnosis of ADHD, avoiding the use of such terms as “suggests,” “is indicative of,” or “attentional problems.”
    • An interpretive summary must be provided that demonstrates that alternative explanations have been ruled out and that explains how the presence of ADHD was determined, the effects of any mitigating measures (such as medication), the substantial limitation to learning caused by the ADHD, and the rationale for specific accommodations.

Obviously, dealing with government regulations with their specific definitions can be very frustrating and difficult. It would be important to have realistic expectations in regards to the American with Disabilities Act and ADHD.

We would recommend getting legal advice from an attorney who specializes in educational law, or has expertise in the Americans with Disabilities Act, to learn more about how the ADA may apply in a specific case to a particular individual with ADHD.