Disabilities & Requesting Reasonable Accommodations on Any Housing Application

AS SOMEONE APPLYING FOR HOUSING (PRIVATE OR GOVERNMENT-ASSISTED), WHAT DO MY DISABILITIES HAVE TO DO WITH MY CRIMINAL RECORD?

If you can prove that your criminal conviction was the result of a disability—for example, due to mental illness and/or past drug addiction you may be able to get a “reasonable accommodation” when applying for ANY type of housing. However, a PHA, owner, or other housing provider is not required to grant a reasonable accommodation to an individual with a disability if that person would be a “direct threat” to the health, safety or property of others, unless the requested reasonable accommodations can actually eliminate or significantly reduce such a threat.

Under the law, housing providers cannot treat persons with disabilities exactly the same as other housing applicants or residents if doing so denies people with disabilities an equal opportunity to use and enjoy a dwelling.[1382] Therefore, by law, a PHA or owner must make reasonable accommodations to its rules, policies, practices, or services when it may be necessary to provide applicants with disabilities an equal opportunity to use and enjoy a living space[1383]—even if that accommodation results in a preference for disabled individuals over similar, non-disabled individuals.[1384] This rule applies to ALL types of housing—public and private.

WARNING: Just because you committed a criminal offense as a result of a disability does not mean you automatically have the right to a reasonable accommodation for housing. It can be very difficult to prove that your disability CAUSED your criminal offense, AND that the disability is the type that qualifies you for a reasonable accommodation

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IF MY CRIMINAL CONVICTION WAS THE RESULT OF A DISABILITY, WHAT IS A REASONABLE ACCOMMODATION THAT I CAN ASK FOR?

A “reasonable accommodation” is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary to give an applicant with a disability an equal opportunity to use and enjoy a living space.[1385] There is no limit or restriction to the type of accommodation that you can request, as long as the accommodation is reasonable. As a general rule, an accommodation will be considered reasonable so long as it does NOT:

    Pose an undue financial burden on the PHA or owner, and/or
    Require the PHA or owner to fundamentally change its housing program[1386]

It’s recommended that you ask a Public Housing Authority (PHA), owner, or housing provider to look at your criminal record using a different standard, or to make an exception to its criminal history policy altogether as a reasonable accommodation. Keep reading to learn about approaches for asking your PHA or landlord for a reasonable accommodation.

WHAT IS CONSIDERED A DISABILITY IN CALIFORNIA?

California law defines a disability as any physical or mental impairment that limits one or more of your major life activities.[1387]

> What is a physical disability under California state law?

A physical impairment is any disease, physical disorder, physical condition, or disfigurement that:

    Affects one or more of your body systems (i.e. your heart, your eyes) or functions (i.e. breathing, speaking), and
    Limits a major life activity.[1388]

> What is considered a mental impairment under California state law?

A mental impairment is any mental or psychological condition that limits a major life activity. Common examples of mental impairments are: intellectual disabilities; brain disease; emotional or mental illnesses; learning disabilities; and any other mental or psychological condition that requires special attention or services[1389]

WHAT IS NOT CONSIDERED A DISABILITY IN CALIFORNIA?

It is not a protected disability if you are:

    Currently engaged in illegal drug use;
    Currently abusing alcohol in a way that interferes with others’ health, safety, or peaceful enjoyment of the property;
    People who pose a substantial threat to others, that cannot be controlled by a reasonable accommodation (see below for more information on reasonable accommodations)[1390]
DOES DRUG ADDICTION QUALIFY AS A DISABILITY?

Technically, yes, if it is PAST drug use and you have permanently stopped using illegal drugs, it does qualify as a disability under both federal and state law. BUT If you are currently using illegal drugs, then you are not considered disabled.[1391] See the next question for what is considered a disability in California.

IMPORTANT! There are no reported California cases where a rehabilitated applicant with a history of substance abuse, or an applicant with mental impairment, and a history of criminal acts arising from the substance abuse or mental illness has been granted a reasonable accommodation from a PHA’s criminal activity restrictions. Courts have generally been unreceptive to these arguments. Specifically, courts have been hesitant to accept arguments that a housing applicant’s criminal convictions were the result of mental illness and/or past substance abuse. Again, since it may be difficult to prove that your criminal conviction was the result of your mental illness and/or drug addiction, it is important that you offer as much evidence as possible.

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HOW can I PROVE MY PAST DRUG USE QUALIFIES AS A DISABILITY?

REMEMBER:

It may be difficult to prove that your criminal conviction was the result of your mental illness and/or drug addiction. It is important that you submit as much evidence as possible!

Under this rule, it can be tricky to prove that you are not a current illegal drug user, especially if there was drug use or convictions for drug use in your recent past. The law doesn’t clearly define what counts as “current” illegal drug use, and there are no reported California court decisions defining “current” illegal drug use.[1392] Some courts outside of California have said a person is NOT a current illegal drug user if that person has permanently stopped using illegal drugs for periods of time ranging from a few months to a year.[1393] Outside of California, courts have said that someone is still a “current” user if they have stopped using for only a few weeks.[1394]

Based on the different ways courts are treating this issue, we recommend that you provide evidence that you are not a current user by showing any proof that:

    You have successfully completed a supervised substance abuse/drug rehabilitation program;
    You are not currently using illegal drugs (meaning any proof that you have permanently stopped using illegal drugs); and/or
    You are currently participating in a supervised substance abuse/drug rehabilitation, treatment, or self-help program[1395]
IF I CAN SHOW THAT I’M DISABLED, HOW can I REQUEST A REASONABLE ACCOMMODATION AS I APPLY FOR HOUSING?

Send a written letter requesting a reasonable accommodation to the PHA, housing provider, or owner (the one making the decision) that clearly explains ALL of the following:

EXAMPLES OF REASONABLE ACCOMMODATIONS INCLUDE:

    An exception (“a waiver”) to a PHA, owner, or housing provider’s policy that bars housing to applicants with criminal records, if your criminal conviction was caused by your disability;An owner or housing provider agreeing to admit a tenant with a mental illness that causes the tenant to sometimes become loud or confrontational, so long as the tenant agrees to seek treatment for his or her mental illness;An owner or housing provider allowing a tenant suffering from mental illness to have a live-in aid; orA PHA, owner, or housing provider accepting a reference from an applicant’s social worker or service provider if an applicant has no recent rental history.
    That you have a disability, and what that disability is.
    That the disability caused the offense. Attach as much documentation as you can. For example:
    Letters from service providers showing that you experienced a mental illness and/or a drug addiction at the time of the offense; or even better, a letter from a doctor confirming the existence of your disability;[1396]
    If it is addiction, explain that you no longer suffer from addiction. Attach any documentation you have, such as letters from service providers showing successful completion of a rehabilitation program or effective or ongoing treatment for your addiction; and/or letters from service providers that show you are no longer using substances.
    What your requested accommodation is, clearly stated:
    Ask for what you want directly!! You could ask a PHA, owner, or housing provider to look at your criminal record using a different standard, or to make an exception to its criminal history policy altogether.
    Why the accommodation you are requesting is NECESSARY and REASONABLE.:
    Here, you should say that an exception from criminal history policy is NECESSARY to give you an equal opportunity to access the housing.
    Explain how your criminal conduct was the result of the disability —showing the relationship (also called a “nexus”) between your disability and your requested accommodation.[1397]
    It is more persuasive if you have a doctor or service provider submit a letter explaining why your disability requires a reasonable accommodation.
    You must also show that the requested accommodation is REASONABLE. A requested accommodation may be found reasonable if:
    It’s necessary for you to have an equal opportunity to enjoy the living space.
    It’s not too expensive for the landlord.
    The administrative burden is not too great.
    It doesn’t fundamentally change the PHA’s, housing provider’s, or owner/landlord’s operations.
    A landlord or PHA accommodation that gives you “preference” over similar non-disabled people may be reasonable under the circumstances.[1398]

“THE DIRECT THREAT EXCEPTION:” Remember that the law does not require that reasonable accommodations be granted to an individual with a disability if that person would be a “direct threat” to the health or safety of other individuals or if that person’s residency would result in substantial physical damage to the property of others UNLESS the reasonable accommodations requested can actually eliminate or significantly reduce such a threat.[1399] This is known as the “direct threat” exception. You have some protections if the PHA, housing provider, or landlord is arguing you are a “direct threat”:

    First, a PHA or owner MUST PERFORM an individualized assessment of you.Second, if a reasonable accommodation can significantly reduce the “direct threat” posed by a recognized disability, then the PHA, housing provider, or owner must make it.Third, if the PHA, housing provider, or owner finds that you pose a direct threat to other tenants or property, this should be based only on actual examples of you causing harm or other factual, objective evidence—not their own fears or assumptions about what could happen.Fourth, a finding of a direct threat cannot be based on assumptions, stereotypes, or fears about mental illness, drug addiction, or other disabilities.[1400]
ONCE I have SENT MY REQUEST FOR A REASONABLE ACCOMMODATION, what happens?

There are several phases of a reasonable accommodation request:[1401]

    Initial request (see PG. 421). This is when you first send your letter informing the PHA, owner, or housing provider that you have a disability and are requesting a reasonable accommodation[1402]
    Verification: Once you make your initial request for a reasonable accommodation, the PHA, owner, or housing provider will want to verify that you are indeed disabled.
    If your disability is obvious or known, and the need for a reasonable accommodation is known, then the housing provider should not ask you for any more information
    If your disability is known and obvious, but your need for the accommodation is not well-known or obvious, then the housing provider should ask only for information necessary to verify the need for a reasonable accommodation—for example, notes explaining your need from a doctor or clinician.
    If your disability or need for an accommodation is unknown or not obvious, the housing provider may ask for verification of both your disability and your need for a reasonable accommodation.[1403]
    The Decision. After reviewing your request, the PHA, owner, or housing provider will decide whether or not to grant your reasonable accommodation request.
    The “Interactive” process:
    If the PHA, owner, or housing provider refuses to grant you a reasonable accommodation, you should try to engage them in an informal “interactive process” in which you discuss alternative solutions that might meet both of your needs. HUD guidelines encourage you to try this informal route first, before starting the formal grievance procedure, because it is more flexible and often leads to quicker resolutions.[1404]
    If after the “interactive process,” the PHA, owner, or housing provider still refuses to grant you a reasonable accommodation, you may have to file a formal complaint with HUD or DFEH.[1405]
HOW can I CHALLENGE MY DENIAL FOR A REASONABLE ACCOMMODATION?

OPTION 1: YOU CAN FILE A COMPLAINT. If you believe that a PHA, owner, or housing provider denied your request for a reasonable accommodation due to your disability and/or your past drug use, you may file a complaint with HUD (federal housing protection agency) or with California’s DFEH (the state housing protection agency).[1406] After you file a complaint, if HUD or DFEH determines that you were discriminated against (they find your complaint has “merit”), then HUD or DFEH will file a civil lawsuit against the PHA, owner, or housing provider on your behalf. Go to Appendix I on PG. 430 to learn how to file a complaint with HUD or DFEH.

OPTION 2: YOU CAN TRY TO SUE IN COURT. To sue a housing provider under the federal Fair Housing Act (FHA), California’s Fair Housing and Employment Act (FEHA), or other state anti-discrimination laws (such as California’s Unruh Civil Rights Act),[1407] you must show that your status as an individual with a disability or drug history was a motivating factor in the owner’s or PHA’s decision to deny your reasonable accommodation request.[1408] You must also provide sufficient evidence that the requested accommodation is reasonable, and that you are a former/ recovering substance user (and not a current substance user), or that you are receiving treatment for your mental illness.[1409]

WHAT IS THE PHA, OWNER, or landlord LIKELY TO ARGUE TO DEFEND its decision to DENy my REASONABLE ACCOMDATION?

The PHA or owner will likely argue that you do not have a protected disability.

They might argue that, you are a “current user” of illegal drugs or substances, and therefore, you are not disabled under the law, OR that you have not sought adequate treatment for your mental illness, and therefore are not disabled under the law.[1410]

If you go to court, you can attempt to disprove these arguments by providing treatment records establishing that you have not used illegal substances for the relevant period of time, or that you receive treatment for your mental illness.[1411] Your argument will be even stronger if you can provide evidence of your participation in or completion of a drug/substance abuse treatment program, or proof that you receive treatment for your mental illness. Go to PG. 364 to learn more about challenging a denial from federal government-assisted housing, or go to PG. 391 to learn more about challenging a denial from private housing.

  1. 1382

    Cal. Civ. Code §§ 54-55.32; 42 U.S.C. § 3604(f)(3)(B); see also Joint Statement of HUD and U.S. DOJ, Reasonable Accommodations Under the Fair Housing Act, 6 (May 17, 2004). ↑

  2. 1383

    42 U.S.C. § 3604(f)(3)(B). ↑

  3. 1384

    See U.S. Airways v. Barnett, 535 U.S. 391, 397 (2002). ↑

  4. 1385

    42 U.S.C. § 3604(f)(3)(B). ↑

  5. 1386

    Cal. Gov’t Code §§ 12925-12928; see also Joint Statement of the Dep’t of Hous. & Urban Dev. and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act, question 7 (May 17, 2004); 24 C.F.R. § 8.33 (2007); See Southeastern Cmty. Coll. v. Davis, 442 U.S. 397, 410, 412 (1979). ↑

  6. 1387

    Cal. Gov’t Code §§ 12925-12928. ↑

  7. 1388

    Cal. Gov’t Code §§ 12925-12928. ↑

  8. 1389

    Cal. Gov’t Code §§ 12925-12928. ↑

  9. 1390

    Cal. Gov’t Code §§ 12925-12928; see also, San Francisco Housing Authority, Housing Choice Voucher Program Administrative Plan, http://www.sfha.org/SFHA_Proposed_Admin_Plan-FINAL_12172014.pdf. ↑

  10. 1391

    42 U.S.C. § 3602(h); 24 C.F.R. § 9.103. Federal HUD regulations define “handicap” to include drug addiction. Similarly, the ADA states that a person with a disability includes “someone who has successfully completed a drug rehabilitation program, is currently in such a program, or is mistakenly regarded as engaging in illegal drug use.” ↑

  11. 1392

    42 U.S.C. § 3602(h); Cal. Gov’t Code §§ 12925-12928. ↑

  12. 1393

    United States v. S. Mgmt. Corp., 955 F.2d 914 (4th Cir. 1992) (holding that one-year period of abstinence could not constitute current use); Herman v. City of Allentown, 985 F. Supp. 569, 578-79 (E.D. Pa. 1997) (holding that nine-month period of abstinence could not constitute current use); Baustian v. Louisiana, 910 F. Supp. 274, 276; McDaniel v. Miss. Baptist Med. Ctr., 877 F. Supp. 321, 327–28 (finding that “seven weeks simply does not satisfy the [ADA’s] requirement of long term abstinence from illegal drug use”). ↑

  13. 1394

    See Zenor v. El Paso Healthcare Sys., 176 F.3d 847, 857 (5th Cir. 1999) (finding five-week period of abstinence insufficient); Shafer v. Preston Memorial Hosp. Corp., 107 F.3d 274, 278 (4th Cir.1997) (finding periodic use of drugs during weeks and months prior to termination from employment as current use); Collings v. Longview Fibre Co., 63 F.3d 828, 833 (9th Cir. 1995) (same); Baustian v. Louisiana, 910 F. Supp. 274, 277 (E.D. La. 1996) (finding seven-week period of abstinence insufficient); McDaniel v. Mississippi Baptist Med. Ctr, 877 F. Supp. 321, 328 (S.D. Miss. 1995) (finding six-week period of abstinence insufficient). ↑

  14. 1395

    29 U.S.C § 705. ↑

  15. 1396

    The Housing Center, Obtaining and Maintaining House: Fair Housing for People with Mental Health Disabilities. For more information about obtaining a reasonable accommodation, visit: http://www.fhrc.org/HRAC_Brochure.pdf. ↑

  16. 1397

    Joint Statement of the Dep’t of Hous. & Urban Dev. and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act, 6 (May 17, 2004). ↑

  17. 1398

    See U.S. Airways v. Barnett, 535 U.S. 391, 397. ↑

  18. 1399

    Joint Statement of the Dep’t of Hous. & Urban Dev. and the Dep'’t of Justice, Reasonable Accommodations Under the Fair Housing Act (May 17, 2004). ↑

  19. 1400

    See National Housing Law Project, Reasonable Accommodation in Federally Assisted Housing, http://nhlp.org/files/Reasonable%20Accommodation%20Outline%20Current%2010-2012.pdf; see also Jennifer L. Dolak, Note, The FHAA’s Reasonable Accommodation & Direct Threat Provisions as Applied to Disabled Individuals Who Become Disruptive, Abusive, or Destructive in Their Housing Environment, 36 Ind. L. Rev. 759, 762–67 (2003). ↑

  20. 1401

    See National Housing Law Project, Reasonable Accommodation in Federally Assisted Housing, http://nhlp.org/files/Reasonable%20Accommodation%20Outline%20Current%2010-2012.pdf. ↑

  21. 1402

    Dep’t of Hous. & Urban Dev., Handbook 4350.3: Occupancy Requirements Of Subsidized Multifamily Housing Programs, REV-1, CHG-3, 2-39; see also National Housing Law Project, Reasonable Accommodation in Federally Assisted Housing, http://nhlp.org/files/Reasonable%20Accommodation%20Outline%20Current%2010-2012.pdf. ↑

  22. 1403

    Dep’t of Hous. & Urban Dev., Handbook 4350.3: Occupancy Requirements Of Subsidized Multifamily Housing Programs, REV-1, CHG-3, 2-39; see also National Housing Law Project, Reasonable Accommodation in Federally Assisted Housing, http://nhlp.org/files/Reasonable%20Accommodation%20Outline%20Current%2010-2012.pdf. ↑

  23. 1404

    Dep’t of Hous. & Urban Dev., Handbook 4350.3: Occupancy Requirements Of Subsidized Multifamily Housing Programs, REV-1, CHG-3, 2-39; see also National Housing Law Project, Reasonable Accommodation in Federally Assisted Housing, http://nhlp.org/files/Reasonable%20Accommodation%20Outline%20Current%2010-2012.pdf. ↑

  24. 1405

    Reasonable Accommodations under the Fair Housing Act, U.S. Dep’t of Just., http://www.justice.gov/crt/about/hce/jointstatement_ra.php. ↑

  25. 1406

    Cal. Gov’t Code § 12981(a); 2 Cal. Code Regs. § 10063. In general, DFEH must file the lawsuit within 100 days after receiving your formal complaint. Before filing the lawsuit, DFEH will first require you and the landlord to attempt mediation. ↑

  26. 1407

    Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq. ↑

  27. 1408

    See Head v. Glacier Northwest Inc., 413 F.3d 1053 (2005) (holding that the ADA outlaws adverse employment decisions motivated, even in part, by animus based on a plaintiff’s disability or request for an accommodation); Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977); see also United States v. S. Mgmt. Corp., 955 F.2d 914, 916 (4th Cir. 1992) (finding a private apartment complex to have violated the FHA by refusing to rent units to a community drug and alcohol rehabilitation board for its participants who had remained drug-free for one year); Campbell v. Minneapolis Pub. Hous. Auth., 168 F.3d 1069 (8th Cir. 1999) (remanding a matter in which the local PHA had rejected a former substance abuser’s application to public housing because of insufficient evidence). Campbell demonstrates the importance of housing applicants providing documentation that he or she is a recovering substance user, not a current substance user. ↑

  28. 1409

    42 U.S.C. § 3602(h)(3). ↑

  29. 1410

    See Campbell v. Minneapolis Pub. Hous. Auth., 168 F.3d 1069 (8th Cir. 1999) (“The MPHA indicated it was denying [Campbell’s] application for the following reasons: . . . you have recently used illicit drugs and have a problem with alcohol.”). ↑

  30. 1411

    See United States v. S. Mgmt. Corp., 955 F.2d 914, 916 (4th Cir. 1992) (finding a private apartment complex to have violated the FHA by refusing to rent units to a community drug and alcohol rehabilitation board for its participants who had remained drug-free for one year). ↑