What is a violation?
To establish an ADA violation, a person bringing a claim must prove:
- A covered disability;
- The defendant is a private entity that owns, leases, or operates a place of public accommodation; and
- The plaintiff was denied public accommodations by the defendant because of the disability.
(Molski v. M.J. Cable, Inc. (9th Cir. 2007) 481 F.3d 724, 730.)
Title III of the ADA prohibits discrimination on the basis of disability in the activities of places of public accommodations (generally including businesses that are open to the public) and requires newly constructed or altered places of public accommodation to comply with the ADA standards.
What is a Covered Disability?
The ADA defines a disability as a “physical or mental impairment that substantially limits one or more of the major life activities of such an individual.” (42 U.S.C. § 12101(2).) The U.S. Justice Department defines an “impairment” as a condition affecting one or more of the bodies’ systems, including the musculoskeletal and neurological systems, and defines “major life activities” to include “functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” (28 C.F.R. 36.104).
Title III protects three categories of individuals with disabilities, including:
- Individuals who have a physical or mental impairment that substantially limits one or more major life activities;
- Individuals who have a record of a physical or mental impairment that substantially limited one or more of the individual’s major life activities; and
- Individuals who are regarded as having such an impairment, whether they have the impairment or not.
What is a Public Accommodation?
The ADA identifies 12 categories of facilities that are considered places of public accommodation for purposes of a Title III action.(42 U.S.C. § 12181.)
Generally, every public place that is open to the general public is included, such as “a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment.” (42 U.S.C. § 12181(7)(E).) For the purposes of these categories, the courts construe public accommodations liberally to afford people with disabilities “equal access” to a wide variety of establishments available to the nondisabled. (PGA Tour, Inc. v. Martin (2001) 532 U.S. 661, 676-77.). Although the definition of a public accommodation is quite broad, it is also exclusive, where businesses and business operations that do not fall into one of the above 12 categories are not covered by Title III of the ADA.
Additionally, there are two categories of businesses that are exempt from Title III: “private clubs or establishments exempted from coverage under Title II of the Civil Rights Act of 1964 (42 U.S.C. 2000-a(e).)”; and “religious organizations or entities controlled by religious organizations, including places of worship.” (42 U.S.C. § 12187.)
Was the Plaintiff Denied Public Accommodation Due to a Disability?
The ADA describes a “barrier” as an architectural feature that fails to comply with applicable standards that are related to his or her disability. (42 U.S.C. § 12182(b)(1)(A)(i); Chapman, supra, 631 F.3d at p. 947, fn. 5.) There is no intent requirement. Unlike other civil rights violations, liability does not depend on proof of intentional discrimination. (Jankey v. Lee (2012) 55 Cal.4th 1038, 1044.) In essence, a disabled person who meets a barrier that does not comply with ADA standards suffers unlawful discrimination.
For existing facilities before January 26, 1993: places of public accommodation that are “existing facilities” are required to remove architectural barriers that deny access to persons with disabilities, “where such removal is readily achievable.” (42 U.S.C. § 12182(b)(2)(A)(iv).)
For buildings and facilities “constructed” or “altered” after January 26, 1993: “Discrimination” includes the failure to design and construct or to make alterations to the facility that render it “readily accessible to and usable by individuals with disabilities.” (42 U.S.C. § 12183(a)(1).) Whether an architectural element at a facility denies full and equal access to persons with disabilities is determined based on the ADA Accessibility Guidelines. (Chapman v. Pier I Imports (U.S.), Inc., 631 F.3d 939, 945 (9th Cir.2011).)
Statute of Limitations
Because Title III is silent on the statute of limitations period for private rights of action, federal courts in an ADA suit will apply the most analogous state statute of limitations. (Wilson v. Garcia (1985) 471 U.S. 261, 266.)
Remedies Under Federal Law
Remedies available in a private suit may include a permanent or temporary injunction, restraining order, or other order, but not compensatory or punitive money damages or civil penalties. In the case of violations of the requirements for readily achievable barrier removal or for accessible new construction and alterations, remedies to correct a violation may, as appropriate, include an order to alter the facilities that do not meet the requirements of the Act to make them readily accessible to and usable by individuals with disabilities. Also, the remedies may include requiring the provision of an auxiliary aid or service, modification of a policy, or provision of alternative methods of barrier removal.
Thus, although the Attorney General of the United States may seek damages on the aggrieved person’s behalf, in a private action for violation of title III of the ADA, no damages—only injunctive relief—are available. (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 670.)
Remedies Under California Law
A disabled person may be entitled to $4,000 for every visit he or she makes to a place of public accommodation where he or she encounters a barrier to access or is “deterred from accessing” an accommodation because of an access barrier. (Cal. Civ. Code, §§ 52(a), 55.56(b).)
The prevailing party is entitled to recover reasonable attorney’s fees. (42 U.S.C. § 12205.) In some cases, the courts have held that a prevailing defendant will only be allowed attorney’s fees if the defendant proves that the plaintiff’s suit was “frivolous, unreasonable, or without foundation.” (Summers v. A. Teichert & Son (1997) 127 F.3d 1150 (9th Cir.).
Generally, a plaintiff with disabilities will have no special problems in establishing the first two elements of standing for a Title III claim. It is the third element—plausible intent or desire to return to the place where they previously encountered an ADA violation, or failure to show that there is a likelihood of discrimination should they return to that place—which some courts have applied to bar plaintiffs from seeking injunctive relief for past violations of Title III of the ADA. (See Aikens v. St. Helena Hospital (1994) 843 F. Supp. 1329 (N.D. Cal.) [holding plaintiff did not have standing to pursue her Title III claim against a hospital where her husband had died and there was no likelihood of the harm being repeated.].)
Accommodation poses an undue hardship: “Significant difficulty or expense…in light of the nature and net cost of the accommodation; the overall financial resources of the covered entity; the impact … upon the operation of the facility; the ability of other employees to perform their duties; and the impact on the facility’s ability to conduct business.” Includes accommodations that are: “unduly extensive, substantial, or disruptive, or… that would fundamentally alter the nature or operation of the business…” (42 U.S.C. § § 12111; 29 C.F.R. §1630.2(p) Appendix; EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship.)
In determining whether an individual would pose a direct threat, the factors to be considered include: (1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm. (29 C.F.R. §1630.2(r); see also School Board of Nassau County v. Arline (1987) 480 U.S. 273.)
Defenses of “Existing” Facility
Includes defenses where removal of the alleged barriers would fundamentally alter the nature of defendant’s public accommodation (42 U.S.C. § 12182(b)(2)(ii); where removal of the alleged barriers is not readily achievable; and where the requested modifications would impose an undue burden on the defendant.
Defenses to a “New” or “Altered” Facility
Includes defenses where compliance would be structurally impracticable (28 CFR §36.401); where a plaintiff’s claim is barred by the statute of limitations; and where the renovations did not constitute alterations.