California’s Fair Housing and Employment Act (“FEHA”) makes it illegal to discriminate on the basis of age, religion, color, gender identity, national origin, race, marital status, familiar status, sexual orientation, or physical or mental disability. As faithful readers to this newsletter are well familiar, the FEHA applies to employers, but it also applies to property managers, lenders, public entities, realtors, rental owners and anyone working in the housing industry. The FEHA broadly prohibits the treatment of a member of any protected class unequally to others or refusing to make reasonable accommodations.
The FEHA’s reach is so extensive that California courts have found that it even protects individuals who need emotional support animals. An emotional support animal is not a service animal, which is recognized under Federal law and may only be a dog or miniature horse that is specifically trained to perform a task for a disabled person. On the contrary, an emotional support animal may be any type of animal, and that animal does not have to be trained to perform any specific task. Although it may not be treated as a “‘pet”, in reality it is difficult to find a difference.
Authority for deeming emotional support animal users to be members of a protected class derives from Auburn Woods I Homeowner’s Assoc. v. FEHC (2004) 121 Cal.Appp.4th 1578. In that case, owners of a condominium unit were sued by their homeowners association for violating a CC&R provision that prohibited them from keeping a dog at their condo. A year after purchasing their condo, the owners bought a small dog, hoping that it would help them with their depression. After bringing the dog home, the owners noticed that their agitation lessened, their interpersonal relationships improved, their sleeping and concentration improved, and they stopped engaging in acts of depression-related self-mutilation. When the HOA demanded that they remove the dog, the owners asked for a reasonable accommodation under the law.
After an administrative judge found that the small dog was a reasonable accommodation, a trial court reversed. The Court of Appeal reversed the trial court and reinstated the administrative judge’s decision. The Court made clear that its decision should not be considered a rule that companion pets are always a reasonable accommodation for individuals with mental disabilities. However, before an employer refuses to allow an employee to bring her support animal to work, or before a property manager refuses to rent a residence to someone with an emotional support animal, the employer or property manager would be wise to consider the circumstances under which the request is made.
The following practices can be implemented and observed to handle future requests by employees for emotional support animals. First, you should have a written policy and an established set of procedures for handling reasonable accommodation requests. You should require that all requests for accommodation be made in writing, or at least confirmed with written acknowledgment following a verbal conversation. Next, you should require the employee to produce documentation supporting the accommodation request, including potentially a note from a doctor or medical professional, documentation from a peer support group (like AA, for example), or from any reliable third party in position to know about the individual’s disability. After receiving this documentation, you should consult with an attorney to assess the reasonableness of the request and whether the employee has made a showing that the animal is necessary to allow them an equal opportunity to work.
If you receive a request from an employee or tenant for an accommodation for an emotional support animal, you should take this request as seriously as you would for any other potential disability, as the legal consequences from wrongfully denying this accommodation are just as grave as any other FEHA violation.
Please contact Michael Oberbeck at Burkhalter Kessler Clement & George LLP if you would like to further discuss this topic.
