Question: I live in a homeowner association where the manager and board directors insist I am not blind because they can see my eyes. Seven years ago, I was prescribed daily-use eyedrops that caused serious eye damage. I was declared permanently disabled. My life consists of sitting in a chair inside or outside my house. One evening while I sat on my front porch, a board director came to me and said, “There is nothing wrong with your eyes. We see how you look at us!” She said they all agreed I was a fraud, faking disability. I am what’s called “invisibly disabled” and I live in constant pain. The directors have decided they must be able to confirm the disability visually. I am deprived accommodation at meetings and a handicapped parking space for my caretaker. What can I do?
Answer: This board’s actions are reprehensible. Your disability does not need to be visible to others for you to receive protection from discrimination under the law or reasonable accommodations. What this board can see is completely irrelevant as they are not qualified to evaluate your condition. You have been diagnosed by trained professionals and it is their opinion that determines your classification.
An association in a common-interest development is bound both by the Americans With Disabilities Act of 1990 at the federal level and the Fair Employment and Housing Act at the state level. Under both acts, it is illegal to discriminate against anyone on the basis of a disability. There is an ongoing requirement that the board engage in discussions and considerations for reasonable accommodations to minimize impairment to anyone’s major life activities.
It is inappropriate for a board to question your condition or require access to your confidential medical records to prove the need for accommodations. This situation should be brought to the attention of other owners as your association faces serious liability for discrimination. Bring this up at the next meeting. Explain what happened to you, how you are being treated and how the association might take steps to remedy this situation. The California Department of Fair Employment and Housing can provide disability compliance and sensitivity training to your association. All you have to do is ask for it.
If you do not feel comfortable speaking in front of an audience of owners, request an executive session or internal dispute resolution meeting with the board. Depending on your comfort level, you may want to provide a simple physician’s note on letterhead confirming disability, but not before written assurances of confidentiality and disclosure only on a need-to-know basis are obtained.
If the board will not listen to reason, file a complaint against the association with the California Department of Fair Employment and Housing and simultaneously request an investigation. Also, you should obtain legal counsel to put the board on notice of the disparate treatment. It is in the best interest of the titleholders to take swift action to remedy this situation and to discipline, and remove, the offending directors.
Many insurance policies have exemptions for coverage of a lawsuit that involves violation of civil rights. If the association’s policy exempts that coverage, then the owners could be on the hook for any resulting legal fees and judgment. Information about such an exemption may be powerful ammunition in your fight to gain the support of other owners against these directors.
Zachary Levine, a partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian, JD, P.O. Box 10490, Marina del Rey, CA 90295 or firstname.lastname@example.org.