Americans with Disabilities Act (ADA)
Enacted in 1990, the ADA has been a source of...
The ADA undoubtedly aims to achieve a noble goal: To allow all Americans equal access to public accommodations by prohibiting discrimination based on a disability.
Title III of the ADA outlines specific nondiscriminatory service obligations and physical accessibility requirements for foodservice establishments, and may be enforced through civil suits or administrative complaints filed with the Department of Justice.
The ADA is under increased scrutiny from policymakers and interest groups because of the abuses of the system carried out by professional plaintiffs who often target small businesses by filing complaints and then offering to settle, usually for thousands of dollars. Too often, these lawsuits are brought against business owners who sincerely believed their facility was in compliance with ADA, but may none-the-less be liable for even a minor, technical violation.
- The ADA defines a disability as “a physical or mental impairment that substantially limits a major life activity.”
- The ADA is enhanced in California by the Unruh Civil Rights Act, which subjects a person to actual damages incurred by an injured party, plus treble actual damages but not less than $4,000, and any attorney’s fees as the court may determine (Civil Code Section 52).
- Under the Unruh Civil Rights Act (Civil Code Section 51), all people, regardless of sex, race, color, religion, ancestry, national origin, disability or medical condition, are entitled to the full and equal accommodations, advantages, facilities, privileges or services in all manner of business establishments.
- A violation of the ADA also constitutes a violation of state law.
- The unique intersection of the ADA and state law that creates the incentive for “professional plaintiffs.”
In response to the incentives created by the interaction of the ADA and the Unruh Civil Rights Act, the state law was modified with the intent to give business owners some protections from frivolous lawsuits. These modifications in the law were part of Senate Bill 1608 in 2008:
- SB 1608 clarified that a plaintiff must have personally encountered a barrier to accessibility before filing a lawsuit.
- SB 1608 clarified that even if there were multiple barriers to access in a single encounter, the plaintiff can only file one claim.
- SB 1608 encourages property owners to use a Certified Access Specialist (CASp) to inspect and certify their facility. This has the benefit of entitling that business to a 90 day stay and early court evaluation conference meant to determine the merits of the claim.
Unfortunately, these types of lawsuits are still being filed.
In April 2012, Sen. Diane Feinstein reached out to Senate Pro Tem Darrell Steinberg asking that the Legislature explore further avenues for curbing ADA litigation in California. Specifically, she asked that the state consider adopting a “right-to-cure,” which a property owner would be given notice of an ADA violation and then have a set time period to make the necessary modifications without being held liable. Feinstein said that if the California Legislature cannot resolve her concerns at the state level, she would consider introducing federal legislation, creating an opportunity for the restaurant industry, together with other interested stakeholders, to seek agreement on common-sense reforms.
Seek options for common-sense reforms to California law that would provide business owners with an appropriate timeframe in which to make modifications without being held liable for accessibility violations.