CACI 2548 Disability Discrimination—Refusal to Make Reasonable Accommodation in Housing (Gov. Code, § 12927(c)(1))
California Civil Jury Instructions CACI
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
https://crowdsourcelawyers.com/judicial-council-california-civil-jury-instructions-caci
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 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 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.)