CLIENTS WITH DISABILITIES

PROFESSIONAL RELATIONSHIPCONFIDENTIALITY

LITIGATION

PEOPLE WITH DISABILITIES

• Protected Class• Everyone is—or will be—in the class• Not everyone in the class knows it• Bodies change/minds change

DEFINITION OF DISABILITY

• FAIR HOUSING ACT: – physical or mental impairment that substantially

limits one or more major life activities• 67 OTHER FEDERAL LAWS – Social Security Veterans– Education Employment

• CALIFORNIA – Includes “medical condition”

FEDERAL REGULATIONS

• (a) Physical or mental impairment includes: • (1) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss

affecting one or more of the following body systems: Neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or

• (2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term physical or mental impairment includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, Human Immunodeficiency Virus infection, mental retardation, emotional illness, drug addiction (other than addiction caused by current, illegal use of a controlled substance) and alcoholism.

• (b) Major life activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.

24 CFR 100.21

CLIENT OBJECTIVE

• COMPENSATION– Money– Litigation/Administrative Complaint

• PUBLIC/SOCIAL INTEREST– Stop Discrimination– Change Landlord/Social Attitude

• IMMEDIATE PRACTICAL SOLUTION– Access to Housing Opportunity– Reasonable Accommodation

AGENCY ROLE

• Advisor (Information—Education)• Scrivenor (Documentation)• Advocate• Impartial Investigator• Referrer• Mediator (Conciliator)• Arbitrator• Witness

CONFIDENTIALITY

• COMMUNICATIONS ARE NOT CONFIDENTIAL• Does a privilege or exception apply– Attorney—Client Privilege– Attorney Work Product– Doctor/Therapist—Patient Privilege– Mediation Confidentiality– Privacy Rights– HIPPA

CONFIDENTIAL CLIENT INFORMATION

• What information do you need?– Existence of Physical/Mental Impairment• Specific Nature of Condition—No

– Limitation on Major Life Activities• Specific Nature of Limitation—No

– Nature of Accommodation Sought• Yes—not confidential

DOCTOR VERIFICATION

• To whom it may concern– Patient has a physical or mental condition that

limits one or more major life activities– Patient is requesting the following

accommodation: _____________________– Granting the accommodation will enable Patient

to fully use and enjoy a housing opportunity

REASONABLE ACCOMMODATION

• Accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling unit, including public and common use areas.– 24 CFR §100.204(a)

• Identifiable relationship, or nexus, between the requested accommodation and the individual’s disability.– HUD/DOJ Joint Statement May 17, 2004

REASONABLE ACCOMMODATION PROCESS

• Client must disclose existence of disability, unless obvious

• Client must request accommodation– Agency can assist/make request– Housing Counselor will be witness

• Landlord must– Grant request– Engage in interactive process

AGENCY ROLE IN INTERACTIVE PROCESS

• Accommodation request in writing• Disclose minimal confidential information– Landlord may not keep confidential– Battle worth fighting?

• Landlord concerns– Economic– Administrative cost/inconvenience– Quiet Enjoyment

• PREPARE TO BE A WITNESS

COMPLAINT

• COURT or ADMINISTRATIVE– Public document– Allege impairment without specifics

DISCOVERY

• STIPULATED PROTECTIVE ORDER– Propose early– Allow defense to draft– Specific to medical records/testimony

LITIGATION AS WAIVER

• Defense Position: – Filing emotional distress action waives privilege

• Jaffe v Redmond 518 US 1 (1979)– Psychotherapist privilege is not waived or balanced

against evidentiary relevance• EEOC v. Peters’ Bakery __FRD__ 2014– Adopts narrow approach to waiver

• Garden variety emotional distress is no waiver• Specific mental injury may be waiver

REASONABLE ACCOMMODATIONSIN LITIGATION

• State courts under ADA• Federal courts—Judicial Conference policy• Accommodations– Client attend settlement conference by telephone– Location of deposition– Client can review deposition transcript at home