Down the Rabbit Hole

“Down, down, down. There was nothing else to do, so Alice soon began talking again. ‘Dinah’ll miss me very much to-night, I should think!’ (Dinah was the cat.) . . .  Dinah my dear! I wish you were down here with me! There are no mice in the air, I’m afraid, but you might catch a bat, and that’s very like a mouse, you know. But do cats eat bats, I wonder?’ And here Alice began to get rather sleepy, and went on saying to herself, in a dreamy sort of way, `Do cats eat bats? Do cats eat bats?’ and sometimes, `Do bats eat cats?’ for, you see, as she couldn’t answer either question, it didn’t much matter which way she put it.”  Lewis Carroll, Alice in Wonderland


I recently reviewed the definition of a “service animal” for purposes of the Americans with Disabilities Act and concluded that the regulations in this area are like the reality in Wonderland; contradictory, sometimes nonsensical and in some cases draconian.

Whether an animal is a service animal depends on which federal agency is interpreting the regulations.  The Department of Justice has the authority to issue regulations governing application of the ADA to state and local governments, commercial facilities and public accommodations.  See 28 CFR Pt. 35 and 36.  Under the DOJ rules, a service animal must be a dog “trained to do or perform tasks” for a person with a disability.

However, HUD has a different view.  Under the Fair Housing Act and Section 504 regulations, a service animal is one that provides assistance (including emotional support) to a person with a disability.  The animal need not be a dog.  A housing provider with a “no pets” policy may not deny housing on the basis of a client’s need for a service animal (whether the animal is a dog, cat or iguana) if the animal “performs a task or services for the benefit of a person with a disability or provide[s] emotional support that alleviates one or more of the identified symptoms of effects of a person’s disability . . . .”  FHEO-2013-01 at 3.

Since most animals provide some emotional support for their human owners, HUD’s interpretation opens the door wide to Alice’s Dinah and many other creatures large and small.  As long as the animal owner has a “physical or mental impairment that substantially limits one or more major life activities” (definition of a disability under the Fair Housing Act), a housing provider must accommodate the need for the service animal unless doing so would impose an “undue financial and administrative burden.”  If not, then as the Queen of Hearts decrees in Alice, it is “off with their heads!”