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The Top Ten Things You Need to Know About
The Top Ten Things You Need to Know About the New Department of Fair Employment and Housing Regulations
By Janet L.S. Powers, Esq. CCAL
The California Department of Fair Employment and Housing (DFEH) has adopted Regulations on Fair Housing for the first time in the history of our State. These Regulations will become effective on January 1, 2019, and will specifically cover and regulate community associations (which will be referred to as HOAs in the Regulations). Managers and management companies will also be covered and regulated.
On October 26, 2018, Senior Legal Counsel for the DFEH, Gregory J. Mann, Esq., and I spoke at the Chapter's luncheon on this topic. There were some great questions, which we will cover in a future article on the DFEH complaint and response process in a future edition of Quorum.
Here are the top ten things we covered that you need to know about the new DFEH regulations. Those are as follows:
1 Associations are now specifically covered by the Regulations, including associations, managers, and management companies.
2 The Regulations interpret and clarify the various fair housing laws in California, including discrimination against members of protected classes. Protected classes include race, color, religion, national origin, religion, sex (including pregnancy, childbirth, and other medical conditions), disability, age (40 and older), genetic information, marital status, sexual orientation, gender identity and expression, AIDS/ HIV, medical conditions, citizenship and language.
3 Associations have potential liability for discriminatory housing practices, including direct liability and vicarious liability. If community associations fail to take prompt action to end a discriminatory housing practice by the association, an employee or an agent, where the association knew or should have known of the discriminatory conduct, there is potential direct liability for the association. Community associations may also have vicarious liability for a discriminatory housing practice by an employee or agent regardless whether the association knew or should have known of the discriminatory conduct if the association has control and can take action regarding the situation. Community associations may also have liability for harassment and retaliation because of membership in a protected class, including quid pro quo harassment, hostile environment harassment and for retaliation against persons engaging in "Protected Activities" such as filing a DFEH complaint.
4 Community associations may not discriminate against persons based on disabilities, and must allow persons with disabilities to request reasonable accommodations, including being allowed to have assistance animals. "Disability" is defined under California law as a condition that limits major life activities including physical and mental disabilities. "Assistance animals" are defined in the new Regulations to include both service animals and support animals. "Service animals" are animals that are trained to perform specific tasks to assist persons with disabilities, including persons with mental health disabilities. Service animals do not have to be professionally trained or certified and may be trained by the person with the disability or another person. Service animals include: guide dogs, signal dogs, service dogs, miniature horses, and service animals in training. "Support animals" include animals that provide emotional, cognitive or other support to persons with disabilities. Support animals do not have to be trained or certified, and are also knowns as "emotional support animals," "therapy animals," "comfort animals."
Important take-aways under the new Regulations regarding assistance animals are that these animals are not pets. There can be no fee or charge for assistance animals, including paying increased costs for insurance, deposits, extra charges, etc. A person with a disability may have more than one assistance animal if they provide requests and reliable verification for each animal. There are no breed, size or weight limitations on assistance animals. The DFEH will not consider online certificates, vests, identification cards to be "reliable" documentation of a disability or of the need for the accommodation. Instead, a relationship between the person with the disability and the person providing the reliable verification will be required.
5 The process of requesting a reasonable accommodation is addressed in the new Regulations. Community associations must be prepared to receive requests for reasonable accommodations of disabilities. These requests can be written, or oral. If a person is disabled and cannot prepare a written request, the association should be prepared to take the request verbally. The request can come from the individuals with disabilities or
Community associations may adopt formal procedures for requests and verification,
but can't require a certain form or particular procedure. Associations must consider the request in the timely manner and cannot delay responding. A week would be considered to be a reasonable time to respond. But associations cannot wait 30 days for the next board or committee meeting to respond, so all such requests should be flagged and expedited for immediate review and consideration.
If additional information is needed for the association to process the request, that information should be requested as soon as possible by the association after it receives the request.
Associations must also be prepared to receive and process requests for reasonable accommodation of visitors/guests with disabilities, e.g. assistance animals, ramps, parking spaces, etc.
6 The verification of disability process is covered by the new Regulations. Community associations must review the request for an accommodation and determine that: A) The person is disabled and B) there is a need for the reasonable accommodation requested which is reasonably related to the disability ("nexus").
If the disability is apparent or known to the association and if the need for the requested accommodation is apparent or known, the association may not request additional information. For example, a person is in a wheelchair and requests a ramp so she can access her unit from the common area parking.
If the disability is apparent or known to the association, but the needfor the requested accommodation is not apparent or known, then the association may request additional information that describes the needed accommodation, and shows the nexus between the disability and how the requested accommodation is necessary to afford the individual with the disability equal opportunity to use and enjoy the dwelling or common
areas. For example, if the person is in a wheelchair and requests to be allowed to have a boa constrictor, the association can then request additional information about how the boa constrictor would reasonably accommodate her disability.
If the disability is not apparentor known to the association, then the association may request only information that is necessary to establish the individual has a disability, describes the needed accommodation, and shows the nexus between the disability and how the requested accommodation is necessary to afford the individual with the disability equal opportunity to use and enjoy the dwelling or common areas.
The association cannot ask for diagnoses, medical condition, medical records, etc. Depending on the individual’s circumstances, the DFEH believes that information establishing that the individual has a disability may be provided directly by the individual with a disability through a variety of means, such as a credible statement or documentation of receipt of disability benefits.
A credible statement is one that a reasonable person would believe based on the available information.
Information confirming that the individual has a disability, or confirming that there is a disability-related need for the accommodation, may also be provided by a reliable third party who is in a position to know about the individual’s disability or the disability related need for the requested accommodation, including: 1. A medical professional; 2. A health care provider, including the office of a medical practice or a nursing registry; 3. A peer support group; 4. A non-medical service agency or person, including in-home supportive services or supported living services providers; 5. Any other reliable third party who is in a position to know about the individual’s disability or disability-related need for the accommodation. According to the Regulations, this could include a relative caring for a child with a disability, a relative caring for an elderly family member with dementia, or others in a caregiving relationship with a person with a disability.
The determination of whether a third party is "reliable" must be determined on a case-by-case basis.
7 Community associations may only deny a request for a reasonable accommodation under limited circumstances. Those circumstances include: A) The individual is not an individual with a disability or B) The request would be an undue financial or administrative burden on the association.
Generally, because most associations are not subject to the Americans With Disabilities Act (ADA), the person requesting the reasonable accommodation must pay for the accommodation. However, if the person requesting the reasonable accommodation advises the association that he/she cannotafford to pay for the accommodation, and requests that the association pay for the accommodation, the association will need to make this determination. This decision should take into consideration the cost of the requested accommodation and the association's financial resources. Larger associations with greater resources could be expected to make accommodations requiring greater expense or effort than smaller associations with fewer resources.
IN REVIEWING AND ANALYZING THE REQUEST, ASSOCIATIONS MUST CONSIDER THE FOLLOWING:
• The benefits of the accommodation to the person with the disability;
• The availability of alternative accommodations that would effectively meet the disability related needs of the person with disability;
• There is no disabilityrelated need for the requested accommodation (in other words, there is no nexus between the disability and the requested accommodation);
• The requested accommodation would constitute a fundamental alteration of the services or operations of the association;
• The requested accommodation would impose an undue financial or administrative burden on the association; or
• The requested accommodation would constitute a direct threat to the health or safety of others (i.e. a significant risk of substantial bodily harm) or would cause substantial physical damage to the property of others, and these risks cannot be sufficiently mitigated or eliminated by another reasonable accommodation.
8 Community associations must engage in the "interactive process" before denying a request. After a request for a reasonable accommodation is received, and if it is not promptly granted, the association must engage in a timely, good faith interactive process with the individual with a disability or his/her authorized representative to identify, evaluate or implement an effective reasonable accommodation.
The Interactive Process is a meeting where the association and the person with the disability talk about the accommodation requested and try to work out a reasonable resolution. Engaging in the Interactive Process will be key to protecting the association and management from liability in potential DFEH complaints and lawsuits. It is important to keep talking and keep the lines of communication open. Associations should carefully document the attempts to talk and communicate in writing concerning the dates, and what was accomplished at the actual interactive sessions. An interactive meeting is not a hearing or Internal Dispute Resolution (IDR) (but it is like the IDR meet and confer process) The DFEH position is that the one who stops talking will be suspect if there is a complaint filed. So keep talking!
9 Community associations have potential liability for discrimination based on effect, and impact ("Discriminatory Effect" or "Disparate Impact"). Practices with discriminatory effect include actions which result in disparate impact on individuals or groups that create, increase, reinforce, or perpetuate segregated housing patterns, based on membership in a Protected Class. A discriminatory effect may exist even if only a single person suffers harm from the practice. For example, a group of residents claim that the association only rents the clubhouse out to persons who are Asian, but not to persons who are Latino. The statistics show that the association rents equally to all races. This would not constitute disparate impact discrimination.
10 The new Regulations cover criminal history information use by community associations. Community associations cannot use criminal history information to discriminate. Corporations Code Section 7221(a) allows the board to remove a director who has been convicted of a felony.
Commercial crime/employee dishonesty coverage (fidelity bonds) may not allow persons convicted of a felony to be covered under those insurance policies. However, under the new Regulations, prior to removal of a director for a felony conviction, the board must conduct an individualized assessment of that director's circumstances and not adopt a bright line test that a director will be removed for any felony conviction.
CONCLUSION
The Regulations are important new interpretative tools and will provide guidance for associations concerning certain areas, including disabilities, assistance animals and criminal background history. The DFEH Council will be working on adopting additional Housing Regulations in the future in other areas that are important to associations. We will keep you apprised of future rulemaking that may impact your associations.
Janet L.S. Powers, Esq., CCAL, is a senior shareholder at Fiore Racobs & Powers’ Orange County office. She is a member of the prestigious College of Community Association Lawyers of CAI (CCAL) and has over 30 years of experience practicing community association law. The Palm Desert office of Fiore Racobs & Powers can be reached at (760) 776-6511, or you can contact Ms. Powers directly atjpowers@fiorelaw. com. Visit www.fiorelaw.com for more information.
