ADA Compliance and Defense Blog
When facing a lawsuit under The California Unruh Civil Rights Act or Title III of the Americans with Disabilities Act (ADA), businesses and property owners should be aware of potential legal defenses that may be available to them. The law mandates that public accommodations (i.e., most businesses open to the public) be accessible to individuals with disabilities. Violations can lead to costly lawsuits and legal battles. However, there are many available defenses that defendants can raise to win lawsuits or mitigate liability. Here are a few of the most common legal defenses to consider (although there are others that you should discuss with your attorney):
- No Ownership, Operation or Control (Incorrect Party)
First, businesses and landlords are often incorrectly named in accessibility lawsuits. However, a business or landlord cannot be liable for property or website conditions that it does not own, operate or control. For example, a tenant cannot be held liable for areas of a parking lot that it does not lease and cannot legally alter. This often occurs in large shopping centers. JMBM was responsible for setting precedent in this area at the 9th Circuit Court of Appeal in the case Kohler v. Bed Bath & Beyond of California, LLC (2015) 780 F.3d 1260 (Case No. 12-56520). You must first determine if the correct party was named in the lawsuit.
- Compliance or Equivalent Facilitation
Sometimes plaintiffs file lawsuits alleging that there are “barriers to access” (i.e., violations) that do not exist. For example, businesses open to the public are generally required to provide an accessible entrance. But not every entrance needs to be accessible. A plaintiff might allege that the property lacks an accessible entrance not realizing one exists on the other side of the building. Certain serial Unruh plaintiffs now often file lawsuits alleging that a website is inaccessible to them as blind users. They or their counsel use automated testing tools, such as the WAVE Tool or Axe, to test the website for accessibility compliance. However, these tools are notorious for producing false positives – apparent violations that are not actual barriers and don’t violate the law. Therefore, it is important to assess the merits of the claims. There are many detailed, technical rules regarding the dimensions, slope, position, color, contrast and other aspects of accessible facilities. Thus, it is crucial to be familiar with the ADA standards and relevant rules in this area before making a determination about liability.
Section 103 of the 2010 ADA Standards states, “Nothing in these requirements prevents the use of designs, products, or technologies as alternatives to those prescribed, provided they result in substantially equivalent or greater accessibility and usability.” In other words, the law recognizes alternative ways to make a facility accessible other than the specific regulations provided by the ADA Standards. See https://www.ada.gov/law-and-regs/design-standards/2010-stds/.
CA Senate Bill 269 states that if a small business defendant corrects certain minor technical violations of the ADA within 15 days of the service of the complaint, there is a rebuttable presumption that statutory damages will not apply. See Civil Code Section 55.56(e)(1). Note that this only applies to certain types of alleged barriers, such as parking signage, parking paint and detectable warnings for blind individuals. See https://law.justia.com/codes/california/code-civ/division-1/part-2-53/section-55-56/.
- Technical Infeasibility
If complying with the ADA’s requirements is technically infeasible, meaning that it cannot be accomplished with standard construction methods or would require extraordinary measures, this defense might apply. For example, if there is not enough room to provide a full-sized accessible parking space and access aisle, it might be considered technically infeasible. If the property is built on a natural slope without enough room for a full ramp and level landing, then one might not be required. This defense is closely related to structural impracticality but is typically used in the context of alterations to existing facilities. You should work closely with your attorney and perhaps a certified access specialist (CASp) to determine applicability of this defense.
- Undue Burden & Fundamental Alteration
Another viable defense is the claim that the required changes would result in an “undue burden” or “fundamental alteration” to the nature of the business or service. In many instances, Title III of the ADA does not require businesses to make modifications that would fundamentally change the nature of the services provided. For instance, a barking service dog in a movie theater would prohibit the business from operating effectively and would not be required.
An undue burden is as significant difficulty or expense beyond what is reasonable. The courts will consider several factors, including:
- The nature and cost of the needed changes
- The overall financial resources of the business
- The impact of the changes on the operation of the facility
This defense acknowledges that while accessibility is important, it should not be achieved at the expense of the viability of a business, particularly small businesses, or those with limited resources. See 42 U.S.C. § 12182(b)(2)(A)(iii).
- Lack of Standing by the Plaintiff
In some cases, a lawsuit can be defended based on the fact that the plaintiff lacks standing to sue under Title III of the ADA. To have standing, a plaintiff must show that he/she suffered an actual or imminent injury due to the alleged violation. If the plaintiff cannot demonstrate that they were directly impacted by the accessibility issue, the lawsuit may be dismissed for lack of standing. Gomez v. Tribecca, Inc., Case No. 2:20-cv-06894-DSF-AFM, Doc # 57. For example, someone in a wheelchair cannot sue for accessibility issues that are only relevant to blind individuals. Some courts have held that a plaintiff must demonstrate a genuine intent to return to the property to establish standing under the ADA for injunctive relief. Whitaker v. BPP East Union LLC, Case No. 2:20-cv-06818-MWF-E (US District Court, Central District of CA), Doc # 44.
Conclusion
There are many other possible defenses to an accessibility lawsuit. Understanding and navigating the legal defenses to an Unruh or Title III ADA lawsuit is crucial when responding to a lawsuit. While the ADA’s goal of promoting accessibility is paramount, the law also recognizes that there are limits to what can be reasonably required of businesses.
It is important for businesses to consult with legal professionals who specialize in ADA compliance to evaluate the best defense strategy based on the specific circumstances of their case. I defend these types of lawsuits throughout California and elsewhere. If you have questions or need assistance, please reach out to me by email at skt@jmbm.com or phone at 415-984-9622. I can let you know if our firm is taking on new clients or refer you to other competent counsel if not.