Feature
by Janie Hickok Siess
Two cases recently litigated by the Department of Fair Employment and Housing (DFEH), the nation’s largest state-run civil rights enforcement agency, tell a cautionary tale for California landlords who disregard their obligation, under state law, to provide reasonable accommodation(s) for tenants with physical or mental disabilities.
The City’s Most Expensive Parking Place
The first case involved parking accessibility and yielded a $1 million settlement, payable entirely to the complainant Shirley Carper, prompting one Bay Area news outlet to proclaim her assigned parking place in the 2001 California St. building “the most expensive parking place in San Francisco."
Carper, a 24-year tenant in the building, suffered from an arthritic condition that severely limited her ability to walk up and down stairs. Unlike the parking places situated on the building’s first floor, her parking space in the lower-level garage was not accessible via the building’s elevator. In May 2000, she asked her landlord to reassign her parking space and provide an extra key to the building’s side door for her caregiver’s use in accessing the elevator. Carper provided written verification from her physician that the reasonable accommodation was necessitated by her physical disability.
When her landlord neither engaged with her in an interactive process, i.e., a timely, meaningful discussion about her need for and how the landlord might grant her request for a reasonable accommodation, nor granted her request, Carper sought the assistance of Project Sentinel and the San Francisco Human Rights Commission. A three-year battle for an accessible parking space ensued, during which, the evidence showed, approximately nine suitable parking spaces became available. But the landlord neither informed Carper of their availability nor offered her one of those spaces. Worse, during the entire period of time that Carper was denied a reasonable accommodation, the building manager, who did not need a parking place accessible from the elevator, was assigned and using such a parking place.
Not until April 2003 was Carper’s request finally granted. By that time, the DFEH had filed suit against the building owners and management in San Francisco County Superior Court, contending that the building owners had violated the Fair Employment and Housing Act (FEHA) by subjecting Carper to discrimination and harassment because of her physical disability.
Because of the landlord’s conduct, Carper was forced to traverse the staircase to move between her vehicle and apartment. Her only other alternatives were to either access the elevator by walking up the steep hill on which the building is situated to its front door and then down nine steps into the lobby or, worse yet, wait for another tenant to happen along and grant her access to the elevator via the building’s side door (to which the landlord refused to give her a key). Carper would sometimes wait for her live-in caregiver to move the car to level ground at the front of the building or have the caregiver park her own vehicle in Carper’s assigned space overnight, leaving Carper’s car on the street with a disabled placard. Finding herself increasingly dependent upon the assistance of others, Carper said that she felt like a prisoner in her home.
Adding to Carper’s emotional turmoil, the evidence established that the building owners and their counsel sent her letters declaring their disbelief about the existence of her physical disability, noting that she did not appear to them to be as disabled as she claimed. Carper was also advised by the landlord, in writing and orally, that she was being surveilled—the landlord was monitoring her comings and goings via security cameras installed throughout the building. Moreover, because Carper had allowed her caregiver to store her own vehicle in Carper’s assigned parking place, the landlord threatened to take away Carper’s parking privileges altogether.
Carper’s physician testified at trial that she was required to undergo knee replacement surgery sooner than she otherwise would have, had it not been for the landlord’s refusal to grant the reasonable accommodation she sought; her use of the stairs aggravated and exacerbated Carper’s physical disability and hastened surgical intervention.
Following an eight-day trial, a San Francisco jury found the building owners violated the FEHA by denying Carper a reasonable accommodation and harassing her because of her physical disability. They awarded her compensatory damages of approximately $250,000. The jury also concluded that the standard for an award of punitive damages had been satisfied as to all defendants.
But before the jury heard evidence concerning the defendants’ financial status for the purpose of computing the punitive damages award, the parties entered into the $1 million settlement, the largest ever in the DFEH’s 25-year history.
AIDS Discrimination
The DFEH also settled another housing discrimination case recently for the sum of $80,000, as well as an agreement that the principal owner/trustee no longer be involved in the rental of apartments.
In that case, the complainant was diagnosed with AIDS. His January 2004 DFEH complaint alleged that he had been denied a reasonable accommodation by his Los Angeles landlord because of his physical disability: the landlord refused to accept rental assistance checks issued to the landlord by a third party.
The complainant had resided in the rental unit since 1997. In November 2002, a new trustee/landlord assumed management control. Unable to work because of his ill health, the complainant’s only source of income, state disability benefits, was insufficient to cover his rent and other living expenses each month so he received assistance from a social services organization that provides rent subsidies for persons with AIDS. However, the new owner refused to accept the rental assistance payments from the social services organization, which could only make the checks payable to the legal owner of the housing accommodation (a trust) rather than to the individual tenant.
In March 2003, with the tenant facing eviction, the Housing Rights Center, a HUD-sponsored nonprofit organization that deals with housing discrimination, sent letters to the landlord on his behalf requesting a reasonable accommodation—acceptance of the rental assistance payments. The landlord flatly refused the reasonable accommodation request, opting instead to return the third-party checks uncashed, serve three-day notices and an unlawful detainer complaint upon the tenant, and refuse the tender of rent in cash. Ultimately, the landlord succeeded in evicting the complainant from the rental unit, and the new trustee/landlord sold the property while the eviction was in progress.
Consequences
Both of these cases demonstrate the potential consequences for California landlords who fail to comply fully with the provisions of the FEHA. In California, it is unlawful for the owner of any housing accomodation to discriminate against or harrass a person because of his/her physical or mental disability. Landlords have an obligation to grant a tenant’s request for a reasonable accommodation of the tenant’s physical or mental disability that will enable the tenant to use, enjoy and access the housing accommodation in a manner essentially equivalent to and to the same extent as tenants who do not have disabilities. Further, in order to ascertain or devise a reasonable accommodation that will accomplish this purpose, landlords are required by law to engage in a timely, good faith interactive process with the tenant, i.e. have a dialogue or meaningful exchange of ideas with the tenant about the precise nature of the accommodation to be implemented.
In the Carper case, the jury clearly communicated that assigning Carper a parking space from which she could access the building’s elevator would have been reasonable in that it would have posed no hardship for the landlord while allowing Carper to use and enjoy her apartment on an equal basis with tenants who did not have disabilities. Likewise, in the case of the complainant who received rental assistance, something as reasonable as accepting a third-party check for the monthly rental payment would have posed no hardship, economic or otherwise, for the housing provider.
Under the terms of the Carper settlement, the landlord must develop and disseminate to all residents a written policy explaining their right under the FEHA to receive, and the owner’s duty to provide, reasonable accommodation, as well as undergo training regarding the duties of a landlord under the FEHA.
Both cases are unfortunate examples of landlords who either disregarded or failed to educate themselves about their responsibility under California law to provide reasonable accommodation to a tenant with a physical or mental disability. Both resulted in the complainant suffering substantial harm and the housing provider incurring significant costs, all of which could easily have been avoided.
For more information about the DFEH, the laws it enforces, or the services the agency provides, visit www.dfeh.ca.gov or call (800) 884-1684. To subscribe, free of charge, to the DFEH’s quarterly newsletter, Fairtimes, send an email with “Subscribe” in the subject line to fairtimes@dfeh.ca.gov.
The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of SFAA or the San Francisco Apartment Magazine. DFEH Assistant Deputy Director, Program and Policy Development, Janie Hickok Siess is a lawyer who has been with the agency since 2000, serving as a staff counsel and the assistant chief counsel prior to assuming her current role in 2004. She spent seven years in private practice prior to joining the DFEH and, as a sole practioner, litigated the landmark Conservatorship of Wendland. Copyright © 2006 by the San Francisco Apartment Magazine. All rights reserved.