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New Guidance from the California Department of Fair Employment and Housing on Harassment Prevention

Mary M. Howell, Esq., CCAL

Of Counsel

858.527.0111
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Practices: Community Association Counsel | Commercial CID | Senior & Fair Housing

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Some of you may recall HUD’s 2017 regulations indicating associations are responsible for intervening in neighbor v. neighbor disputes predicated on unlawful harassment (e.g., harassment arising from race, ethnicity, sexual expression, religion, etc.)  In June 2021, DFEH (the California agency charged with implementing state and federal anti-discrimination laws), issued its “Harassment Prevention Guide.”

The Guide emphasizes the following points:

        • Unlawful harassment is conduct “sufficiently severe or pervasive as to interfere with a person’s use or enjoyment” of a dwelling or housing-related services or facilities.
        • Harassing behaviors include verbal harassment, physical harassment, and visual harassment, coercion, intimidation, threats. It can also include revealing private information about a person without their consent.
        • Discriminatory harassment can occur either directly by an association, its managers or board members or indirectly, (e.g., by contractors hired by association).
        • Victims of discriminatory harassment include not just owners, but residents, and persons invited to the property, including guests or contractors working for residents.
        • A community association may have the power to correct and end discriminatory harassment under its CC&Rs. NOTE: A typical example of such power includes the nuisance prohibition found in nearly every set of CC&Rs, but occasionally CC&Rs also provide that any violation of state, federal and/or local law constitutes a violation of the CC&Rs, which provides further evidence that the association has the power to correct and end harassment.)

DFEH suggests that a housing provider such as a community association might consider pre-emptive action such as communicating that harassment is unacceptable within the community and training leaders of the community on how to investigate and deal with complaints of harassment.

Most community associations (and management companies) are not regularly trained in these issues.  At a minimum, the board, manager, or person hired by the association for this purpose should conduct a prompt, thorough interview of the complainant, to obtain as much relevant information as possible.  Certainly, the accused harasser should be given an opportunity to respond to the accusations as well.  If the accused harasser is a board member, consideration should be given to forming an executive committee comprised of other directors to investigate the allegations or outsourcing the investigation if that is not an option.  (NOTE:  Put the association’s D&O and CGL insurance providers on notice of claims of harassment, at the earliest possible moment.)

The Guide provides further helpful and detailed suggestions on how the investigation is to be performed, discussing whether an investigation is confidential, how quickly the investigation needs to begin and finish, how the investigator may assess the credibility of the complainant, accused party, and witnesses, and how the investigator should weigh the evidence yielded by the investigation.  See Harassment Prevention Guide, pages 9 and 10.

The Guide also discusses how an association or other housing provider should approach ending and correcting discriminatory harassment.  Depending on the gravity of the behavior, the degree of enforcement (in mild cases, a letter explaining the harassment violates governing documents and, possibly, the law as well, whereas in severe cases, harsher approaches such as imposing fines, issuing cease and desist notices, and where the activity appears to be a criminal act as well, reference to law enforcement). (NOTE:  The Guide does not answer one major question, which is whether the association is required to file an injunctive relief action to control the situation.  This issue should, as a matter of good business judgment, be discussed with association legal counsel early on.)

For questions or more information on this topic, please contact us.

Unintentional Housing Discrimination

Supreme Court Says Unintentional Housing Discrimination is Against the Law: What Could This Mean for Your Community Association?

On Thursday, June 25, 2015 the United States Supreme Court announced its decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc.

The Federal Government provides tax credits to housing developers for the construction of low income housing. Those tax credits are distributed to developers by the states. The Texas Department of Housing and Community Affairs (“Texas”) adopted a system of scoring proposed housing developments that gave additional points to developments in low income neighborhoods.

Inclusive Communities Project (“ICP”) sued Texas alleging that Texas violated the Fair Housing Act (“FHA”). The FHA, as amended, prohibits discrimination in housing because of race, color, religion, national origin, sex, disability, or familial status. ICP used statistical evidence to show that Texas’s scoring system resulted in a disproportionately high percentage of tax credits to developments in minority communities. Texas argued that its scoring system was not adopted “because of race” and does not violate the FHA.

ICP’s argument relies on a “disparate impact” theory of liability. Under that theory, a plaintiff need not show that a housing provider intended to discriminate. Rather, the plaintiff need only show that the housing provider’s facially neutral policy has a disproportionate adverse impact on members of a protected class. The burden would then shift to the housing provider to show that its policy is necessary to achieve its substantial, legitimate, nondiscriminatory interest that cannot be achieved by less discriminatory means.

Although the FHA does not explicitly state that plaintiffs may use this disparate impact, unintentional discrimination, theory to prove their case, numerous courts have allowed these claims. Nevertheless, confusion about this issue has led to inconsistent enforcement of the FHA from one presidential administration to the next.

Today’s decision by the Supreme Court clarifies that a housing provider may be held liable for violations of the FHA even if it did not intend to discriminate, so long as its policy has a disproportionate adverse impact on members of a protected class. This may embolden plaintiffs to file claims that might not otherwise have been filed.

How might this decision affect community associations?

Suppose an association adopts a pet restriction that is more restrictive for tenants than for owners. If that association is located in a community with a low level of minority homeownership, a claim could be made that the pet restriction has a discriminatory effect based on race.

Suppose an association adopts a rule that prohibits the use of skateboards in the common area. If a resident with children can show that children are more likely than adults to use skateboards, she might argue that the rule has a discriminatory effect based on familial status (i.e., the presence of children in the household).

Today’s decision could lead to more claims of unintentional discrimination. Associations should carefully review their governing documents with legal counsel to consider whether any restrictions might disproportionately affect members of a protected class, whether the association has a legitimate interest in enforcing such restrictions, and whether there are alternative nondiscriminatory means of achieving the association’s objectives.

Fair Housing: ADA or FHA? Why It Matters & What HOAs Need to Know to Address Disability Accommodation Claims

Mary M. Howell, Esq., CCAL

Of Counsel

858.527.0111
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Practices: Community Association Counsel | Commercial CID | Senior & Fair Housing

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Associations frequently must address claims for disability accommodation from owners, residents, their families and friends. While some aspects of the law have been “on the books” for more than 20 years, a surprising amount of misinformation still circulates. The questions usually arise from a misunderstanding of the two federal laws providing disability protections, the Federal Fair Housing Act of 1988 (“FHA”) and the Americans with Disabilities Act (“ADA”). This article discusses how the two laws interact, and what aspects of community association operation may be affected.

Which Law Applies?

ADA or FHA (or both)? Is an association covered by either, or both, of these federal disability protection acts? Usually the answer is “FHA, not ADA.” Both the FHA and the ADA require the objects of those statutes to provide “reasonable accommodations” to the disabled. However, there are significant differences in how they deal with the issue, including who must pay the cost of an accommodation.

The ADA applies only to a “public accommodation;” that is, a certain type of business or facility, which is open to the public. To be subject to the ADA, the facility must both be of a category listed in the ADA and open to the public.

There are 12 categories of business or facility covered by the ADA, and if the business/facility is not within those categories, the ADA does not apply to that facility or business. Many of the listed facilities are commonly found in homeowners associations, e.g., an establishment serving food or drink, a stadium “or other place of entertainment,” an auditorium “or other place of public gathering,” a library or “place of recreation,” a “senior citizen center,” a gymnasium, golf course, “or other place of exercise or recreation.” However, in the vast majority of cases, those facilities, when located within an association, are not open to the public. Thus, the ADA most often does not apply (although the FHA does).

Case Law – Public Accommodations

In Carolyn v. Orange Park Community Ass’n. (2009) 177 Cal.App.4th 1090, a portion of a county-wide bridle trail was both open to the public and located on association common area. When a disabled person sought access to the trails by means of a reasonable accommodation under the ADA, the court rejected the notion that the trail system was “public.” In so doing, it focused on several factors:


“We agree with the premise that recreational common areas within common interest developments can be classified as public accommodations in appropriate circumstances. But we think it clear OPCA’s trails would not be a public accommodation if OPCA actively excluded the general public from using the trails. Moreover, we do not think OPCA’s private trails transform into public accommodations merely because OPCA does not actively exclude members of the public from using the trails. …

Each of the examples listed in the ADA and the Health and Safety Code illustrates the broader concept that places of public accommodation are places designed and intended to provide services, goods, privileges, and advantages to members of the public, usually in exchange for payment (and when not requiring payment, often motivated by some other advantage to the entity providing the accommodation, such as promoting its good will to the community).” [Emphasis added]


The court noted that the trails had been built for the use of association members, there was no evidence the association encouraged public use of the trails, and the association charged no fee for use by the public. The court therefore concluded that the trails were not a “public” accommodation.2

Suppose the association does solicit members of the public, and charge them, for the use of the common area facilities—what does that mean in terms of the ADA? If the association opens its facilities to the public, and those facilities fall into one of the 12 categories set out in the ADA, the association runs the risk that the portion of the facility open to the public may be held to be subject to the ADA. If the association charges for that use, the risk increases. If the use is sufficiently “public,” then the association would be required to comply with the ADA.

Barrier Removal & Reasonable Accommodations

ADA compliance usually concerns one of two issues: removal of barriers where “readily achievable” and “accommodations” involving provision of services. In both cases, the cost of such compliance under the ADA is borne by the “public accommodation” (in our case, the association) and not by the disabled person.

Whether a proposed barrier removal is “readily achievable” changes from case to case. The Act says barrier removal is “readily achievable” where it is “easily accomplishable and can be carried out without much difficulty or expense.” In addition to the cost of the project, a court may also consider factors such as zoning implications, whether the building is an historical landmark, and the financial ability of the entity to remove the barriers. Examples of “barrier removal” which are generally considered “readily achievable” include installing ramps, making curb cuts, rearranging tables and chairs, widening doors, installing grab bars in toilets, and reworking toilets and lavatories for wheelchair access.

If the association isn’t subject to the ADA, can it refuse to pay for a requested alteration? Yes. If an association is subject only to the FHA, a homeowner can request permission to make changes to the common area, and to his own unit, but the cost of such alterations is borne by the homeowner, not the association.3 However, per HUD (the federal agency charged with enforcing the FHA), the association may not demand as a condition of approval for the alteration that the homeowner pay for special insurance or use particular contractors.

Suppose the request comes from a tenant rather than an owner—is the association still required to permit the alteration? Yes. Even though the tenant may not be expected to reside in the community indefinitely, the association must still allow the accommodation, whether pursuant to the FHA or the ADA. Further, if the alteration is to common areas, HUD takes the position that the FHA does not allow the association to condition approval of the alteration on its removal when the tenant moves out.

If the association doesn’t believe an applicant is disabled, can it request proof? If the disability and the need for the requested accommodation is obvious, no. But if there’s nothing obvious about the connection between a claimed disability and the requested accommodation or modification, then the association may ask for evidence to support the request.

Is the association required to grant every request? No. The association may suggest other accommodations if the requested one is somehow objectionable (e.g., unsafe, not necessary to afford the applicant an equal opportunity to use and enjoy the premises, application not disabled). But, if the matter cannot be resolved by negotiation, the association should be very wary of rejecting an application without thorough investigation and consideration of the request. Consulting with counsel is strongly suggested, as most D&O insurance policies contain exclusions for damages arising from fair housing claims.

We keep getting threatening letters from a “fair housing council.” What’s that? A number of private, nonprofit entities, generally self-labeled as “fair housing councils,” have been established to serve as unofficial “watchdogs” for FHA compliance. Usually they provide free legal advice to disabled applicants, and attempt to resolve any conflicts before a claim is filed with HUD (or DFEH, the state equivalent of HUD), or an action is filed in court.

Additional Resources

Readers are encouraged to read two summaries of frequently asked questions about the FHA which can be found on the internet: the “Joint Statement of HUD and DOJ on Reasonable Accommodations under the FHA” [http://www.justice.gov/crt/about/hce/joint_statement_ra.pdf] and the “Joint Statement of HUD and DOJ on Reasonable Modifications under the FHA” [http://www.justice.gov/crt/about/hce/documents/reasonable_modifications_mar08.pdf].

1  The author wishes to acknowledge that the original version of this article was published in Connect magazine, a publication of the Community Associations Institute – Greater Inland Empire chapter, 2010, issue 3.
2  In the Carolyn case, the court also quoted from a 1992 HUD letter ruling which held that an association’s clubhouse was not a “public accommodation” if the use of the clubhouse was restricted to the use of residents and their guests.
3  There is a minor exception to this statement. If the developer failed to comply with the disability access guidelines which were in effect at the tine of construction, a homeowner can demand the association reconstruct for compliance, at the association’s cost.