Introduction

California employers are required to “reasonably accommodate” disabled employees under the Americans with Disabilities Act (“ADA”) and the Fair Employment and Housing Act. Entities operating places of public accommodation – including retail establishments, schools, hotels, restaurants, banks, theatres, and stadiums – also must make their facilities and services accessible to disabled members of the public under the ADA and the California Disabled Persons Act (“DPA”). Businesses are obligated to remove physical barriers – including architectural, communications, and transportation impediments – to ensure access.

Recent changes to state and federal law affect employers’ business operations and legal exposure. In 2010, Attorney General Eric Holder signed revisions to the United States Department of Justice’s (“DOJ”) regulations concerning Title III of the ADA. In addition, last year, California Governor Jerry Brown signed into law major revisions to the DPA, which became effective on January 1, 2012. The California Supreme Court recently addressed recovery of attorney’s fees in DPA actions in Jankey v. Lee.

Title III of the ADA and Recently-Implemented Regulations

The ADA’s Title III requires private entities operating various “places of public gathering” to make their services and facilities accessible to the disabled. The DOJ issued revisions to its Title III regulations, which became effective in March 2011. These regulations create various obligations for private business owners, of which managers and employees should be aware when interacting with clients, customers, and visitors.

For example, under the revised regulations, wheelchairs and other devices designed for use by people with mobility impairments must be permitted in all areas open to pedestrian use. Devices that are not designed for individuals with mobility impairments, but are often used by them (e.g., Segway vehicles) must also be permitted, unless the devices cannot be safely operated. The revisions also address issues such as use of “service animals,” use and provision of interpreters, ticket sales, hotel reservations, and construction.

SB 1186 Amends the DPA

The DPA generally requires that individuals with disabilities be given “full and equal access” to public accommodations in accordance with Title III. Last year, the California Legislature passed SB 1186, designed to prevent abuse of disability access laws. SB 1186 amends the DPA in several ways that may be significant to businesses.

Before filing a lawsuit, an attorney often sends a potential defendant a letter demanding corrections to perceived violations of Title III or the DPA as well as compensation. The attorney will typically threaten litigation if the demands are not met.

SB 1186 requires that a demand letter in a construction-related disability access claim state (1) “facts sufficient to allow a reasonable person to identify the access barrier”; (2) the “way in which the barrier interfered with [an] individual’s full and equal use or access, or deterred the individual; and (3) “the date or dates on which the individual encountered the specific barrier…or…was deterred.” An attorney may not “include a request or demand for money or an offer or agreement to accept money” in a demand letter. An attorney who sends a demand letter must also include an advisory notice that contains language specified in SB 1186 outlining the potential defendant’s legal rights.

Under SB 1186, a complaint filed in court for a construction-related accessibility claim must essentially meet the same requirements as a demand letter. A court may strike a complaint that does not include (1) a “plain language explanation” of barriers or deterrents to access; (2) a description of how a barrier denied an individual use of, or deterred an individual from using, a public accommodation; and (3) the date(s) on which a plaintiff encountered a barrier to access or was deterred.

The revised statute reduces a defendant’s minimum liability for statutory damages if the defendant corrects a violation within 30 or 60 days – depending on the type of business – of being served with a complaint. SB 1186 prevents individuals from asserting multiple claims based on the same alleged offense, by requiring a court to consider the reasonableness of a plaintiff’s actions if he or she makes multiple claims based on the same accessibility impediment.

SB 1186 makes it easier for parties to engage in an early evaluation process. Finally, an attorney who does not comply with certain obligations created by SB 1186 may be subject to discipline by the State Bar of California.

Jankey v. Lee

The California Supreme Court has recently addressed attorney’s fees in DPA actions. The DPA’s attorney’s fees provision states that a “prevailing party” in a DPA action “shall be entitled to recover reasonable attorney’s fees.” In Jankey v. Lee, the court held that the DPA’s attorney’s fees provision “grants a prevailing defendant a mandatory right to fees.” The court’s holding contrasts with how some other attorney’s fees statutes have been interpreted. For example, the ADA and FEHA permit the “prevailing party” to recover attorney’s fees. But the courts have construed these laws as permitting a prevailing defendant to recover attorney’s fees only when the plaintiff’s lawsuit was “frivolous, unreasonable, without foundation, or brought in bad faith.”

Conclusion

After years of complaints by businesses overwhelmed by a disability access lawsuits, the Legislature and courts have provided some relief. The potential for costly litigation, fines, and attorney’s fees remain a significant threat. Businesses undergoing new construction and renovations should ensure compliance with the latest building standards. Facilities should be audited by qualified consultants. But the obligation to provide access goes beyond construction and can include alterations to services provided, modifications to policies (such as waiting lines), and more. Therefore, managers must be aware of their obligations to make facilities and services accessible, what is required, and what is an undue burden.