CACI No. 2548. Disability Discrimination - Refusal to Make Reasonable Accommodation in Housing (Gov. Code, § 12927(c)(1))

Judicial Council of California Civil Jury Instructions (2020 edition)

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2548.Disability Discrimination - Refusal to Make Reasonable
Accommodation in Housing (Gov. Code, § 12927(c)(1))
[Name of plaintiff] claims that [name of defendant] refused to reasonably
accommodate [his/her/nonbinary pronoun][select term to describe basis of
limitations, e.g., physical disability] as necessary to afford
[him/her/nonbinary pronoun] an equal opportunity to use and enjoy a
dwelling. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of defendant] was the [specify defendant’s source of
authority to provide housing, e.g., owner] of [a/an] [specify nature of
housing at issue, e.g., apartment building];
2. That [name of plaintiff] [sought to rent/was living in/[specify other
efforts to obtain housing]] the [e.g., apartment];
3. That [name of plaintiff] had [a history of having] [a] [e.g., physical
disability] [that limited [insert major life activity]];
4. That [name of defendant] knew of, or should have known of, [name
of plaintiff]’s disability;
5. That in order to afford [name of plaintiff] an equal opportunity to
use and enjoy the [e.g., apartment], it was necessary to [specify
accommodation required];
6. That it was reasonable to [specify accommodation];
7. That [name of defendant] refused to make this accommodation.
New May 2017; Revised May 2020
Directions for Use
This instruction is for use in a case alleging discrimination in housing based on a
failure to reasonably accommodate a disability. Under the Fair Employment and
Housing Act, “discrimination” includes the refusal to make reasonable
accommodations in rules, policies, practices, or services when these
accommodations may be necessary to afford a disabled person equal opportunity to
use and enjoy a dwelling. (Gov. Code, § 12927(c)(1).)
In the introductory paragraph, select a term to describe the source of the plaintiff’s
limitations. It may be a statutory term such as “physical disability,” “mental
disability,” or “medical condition.” (See Gov. Code, § 12940(a).) Or it may be a
general term such as “condition,” “disease,” or “disorder.” Or it may be a specific
health condition such as “diabetes.” Use the term in element 3.
In element 2, if the plaintiff encountered a barrier before actually submitting an
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application, such as discovering a policy that would make it impossible to live in
the unit, specify what the plaintiff did to obtain the housing.
In element 3, select the bracketed language on “history” of disability if the claim of
discrimination is based on a history of disability rather than a current actual
disability.
Modify element 3 if the plaintiff was not actually disabled or had a history of
disability, but alleges denial of accommodation because the plaintiff was perceived
to be disabled or associated with someone who has, or is perceived to have, a
disability. (See Gov. Code, § 12926(o); see also Gov. Code, § 12926(j)(4), (m)(4)
[mental and physical disability include being regarded or treated as disabled by the
employer].)
In element 5, explain the accommodation in rules, policies, practices that is alleged
to be needed.
Sources and Authority
• Discrimination Defined Regarding Housing Disability Accommodations.
Government Code section 12927(c)(1).
• “Disability” Defined for Housing Discrimination. Government Code section
12955.3.
• “Housing” Defined. Government Code section 12927(d).
• “ ‘FEHA in the housing area is thus intended to conform to the general
requirements of federal law in the area and may provide greater protection
against discrimination.’ In other words, the FHA provides a minimum level of
protection that FEHA may exceed. Courts often look to cases construing the
FHA, the Rehabilitation Act of 1973, and the Americans with Disabilities Act of
1990 when interpreting FEHA.” (Auburn Woods I Homeowners Assn. v. Fair
Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1591 [18
Cal.Rptr.3d 669], internal citations omitted.)
• “[T]he basic principles applicable in employment cases should also apply in the
housing context.” (Brown v. Smith (1997) 55 Cal.App.4th 767, 782 [64
Cal.Rptr.2d 301].)
• “In order to establish discrimination based on a refusal to provide reasonable
accommodations, a party must establish that he or she (1) suffers from a
disability as defined in FEHA, (2) the discriminating party knew of, or should
have known of, the disability, (3) accommodation is necessary to afford an equal
opportunity to use and enjoy the dwelling, and (4) the discriminating party
refused to make this accommodation.” (Auburn Woods I Homeowners Assn.,
supra, 121 Cal.App.4th at p.1592.)
• “FEHA prohibits, as unlawful discrimination, a ‘refusal to make reasonable
accommodations in rules, policies, practices, or services when these
accommodations may be necessary to afford a disabled person equal opportunity
to use and enjoy a dwelling.’ ‘In order to establish discrimination based on a
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2548
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refusal to provide reasonable accommodations, a party must establish that he or
she (1) suffers from a disability as defined in FEHA, (2) the discriminating party
knew of, or should have known of, the disability, (3) accommodation is
necessary to afford an equal opportunity to use and enjoy the dwelling, and (4)
the discriminating party refused to make this accommodation.’ ” (Roman v. BRE
Properties, Inc. (2015) 237 Cal.App.4th 1040, 1051 [188 Cal.Rptr.3d 537],
internal citation omitted.)
• “We note that, currently, section 12955.3 explicitly states that ‘disability’
includes ‘any physical or mental disability as defined in Section 12926.’ That
statute in turn defines ‘mental disability’ to include “any mental or psychological
disorder or condition . . . that limits a major life activity’, that is, ‘makes the
achievement of the major life activity difficult.’ ‘Major life activities’ is to be
broadly construed, and includes ‘physical, mental, and social activities and
working.’ ” (Auburn Woods I Homeowners Assn., supra, 121 Cal.App.4th at p.
1592, internal citations omitted.)
• “ ‘If a landlord is skeptical of a tenant’s alleged disability or the landlord’s
ability to provide an accommodation, it is incumbent upon the landlord to
request documentation or open a dialogue.’ This obligation to ‘open a dialogue’
with a party requesting a reasonable accommodation is part of an interactive
process in which each party seeks and shares information.” (Auburn Woods I
Homeowners Assn., supra, 121 Cal.App.4th at p. 1598, internal citation omitted.)
• “This evidence established the requisite causal link between the [defendant]’s
no-pets policy and the interference with the [plaintiffs]’ use and enjoyment of
their condominium.” (Auburn Woods I Homeowners Assn., supra, 121
Cal.App.4th at p. 1593.)
• “When the reasons for a delay in offering a reasonable accommodation are
subject to dispute, the matter is left for the trier of fact to resolve. The
administrative law judge properly characterized this lengthy delay as a refusal to
provide reasonable accommodation.” (Auburn Woods I Homeowners Assn.,
supra, 121 Cal.App.4th at p. 1599, internal citation omitted.)
• “We reiterate that the FEHC did not rule that companion pets are always a
reasonable accommodation for individuals with mental disabilities. Each inquiry
is fact specific and requires a case-by-case determination.” (Auburn Woods I
Homeowners Assn., supra, 121 Cal.App.4th at p. 1593.)
Secondary Sources
Joint Statement of the Department of Housing and Urban Development and the
Department of Justice, Reasonable Accommodations Under the Fair Housing Act
(May 17, 2004), www.justice.gov/sites/default/files/crt/legacy/2010/12/14/joint_
statement_ra.pdf
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1063
7 California Real Estate Law and Practice, Ch. 214, Government Regulation and
Enforcement, § 214.41 (Matthew Bender)
CACI No. 2548 FAIR EMPLOYMENT AND HOUSING ACT
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11 California Forms of Pleading and Practice, Ch. 117, Civil Rights: Housing Dis-
crimination, § 117.14 (Matthew Bender)
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