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Protection Against Frivolous Disability Lawsuits

Columnist: Eric G. Young Esq.
March, 2007 Issue
Columnist

Eric G. Young Esq.
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If you’ve been operating a business since the 1990 passing of the Americans With Disabilities Act (ADA), then you know how difficult it can be to keep abreast of the ADA’s requirements. This is particularly true if you’re a small business owner who deals with a high volume of general public customers, such as a small restaurant or a mom-and-pop grocery. Regardless of the size of the business, all “places of public accommodation” in California are expected to comply with the ADA’s requirements—as well as the state of California’s legal requirements—when providing goods and services to disabled customers.

Virtually every type of business is covered by the ADA to some degree. The agency requires businesses to comply with its mandates if they fall into any of these 12 categories:

  • places of lodging (a few exceptions apply);
  • restaurants, bars and food-serving establishments;
  • places of exhibition or entertainment (movie theaters, concert halls, stadiums and the like);
  • sales or rental establishments (stores and malls);
  • service establishments (for example, laundromats, banks and professional offices);
  • places of public gathering (convention centers, auditoriums);
  • public transportation terminals, depots or stations;
  • places of public display or collection (libraries, museums);
  • places of recreation (parks, zoos, amusement parks);
  • places of education (including private schools and colleges);
  • social service center establishments (day care centers, senior centers, homeless shelters); and
  • places of exercise or recreation (gyms and spas, golf courses, bowling alleys).

The ADA prohibits discrimination on the basis of disability by “places of public accommodations” and requires them to be designed, constructed and altered to achieve accessibility for disabled persons.

In addition, California imposes its own legal requirements on businesses. These requirements are generally found in the Unruh Civil Rights Act (Unruh Act), the Disabled Persons Act, the Health & Safety Code and the California Building Code. In some instances, these requirements are more stringent than the ADA; in other instances, less so.

Disability litigation in California
Even if you are a conscientious business owner, the burden of meeting two different sets of legal obligations can be a confusing minefield. Litigation in this arena is commonplace. Since 2002, at least 6,000 ADA lawsuits have been filed in California’s federal court system. An additional, unknown number of ADA lawsuits have been filed in California’s state courts. In one (admittedly extreme) example, a plaintiff had filed more than 400 ADA lawsuits.

The good news is, two cases decided by California’s courts in 2007 signal some relief on the horizon for businesses. These cases reflect a growing, judicial mistrust of ADA litigation that’s based on minor, unintentional violations alleged by plaintiffs who either have a history of filing ADA lawsuits or who have tenuous connections to the business being sued.

The Harris Case: Plaintiffs must be likely to patronize the establishment in the future. The first case, Harris v. Stonecrest Care Auto Center, decided by the federal court in San Diego, illustrates the concern about frivolous ADA lawsuits. In it, a disabled patron sued a gasoline station, alleging the station had discriminated against him. In dismissing Harris’ lawsuit, the court wrote the “plaintiff has filed many [ADA] lawsuits…more than he can remember.”

The court held that, for a plaintiff to file a viable ADA lawsuit, plaintiffs must demonstrate they’re likely to return to the establishment in the future. To determine whether a plaintiff has met this burden of proof, courts should examine four factors: the proximity of the business to the plaintiff’s home; any history of past patronage; the definiteness of the plaintiff’s plans to return to the business; and the plaintiff’s frequency of travel near the accommodation in question.

Ultimately, the court concluded Harris had not met this burden of proof because he lived approximately 600 miles from the station, had not patronized the station previously, and had no definite plans to return in the future.

The Gunther Case: California’s Unruh Act applies only to intentional discrimination. The second case, Gunther v. Lin, involved an alleged violation of California’s Unruh Act. Because the Unruh Act is a common state law basis for bringing disability lawsuits, the decision is significant.

In it, a disabled patron sued a restaurant under the Unruh Act, seeking monetary penalties for violations allegedly existing in the restaurant’s bathroom. No evidence was presented that the restaurant intentionally discriminated against the patron, and the patron conceded that the restaurant harbored no discriminatory intent. In fact, evidence suggested the patron entered the restaurant’s bathroom while it was being remodeled, and then alleged it didn’t comply with the Unruh Act.

The patron argued that the Unruh Act imposes a monetary penalty even when a business unintentionally fails to provide access for its disabled customers. The trial court entered judgment in favor of the restaurant, and the patron appealed. The Court of Appeal upheld judgment in the restaurant’s favor, concluding that, for a disabled individual to seek the statutory remedies provided by the Unruh Act (including monetary penalties), the disabled individual must demonstrate the business intentionally discriminated against him or her.

What do the Harris and Gunther rulings mean for business owners? Neither Harris nor Gunther absolves businesses of their legal obligations when dealing with disabled customers. Any business that discriminates against a disabled customer will still be subject to liability under either the ADA or California’s laws.

However, these two recent decisions provide businesses with some protection against litigants who abuse disability rights legislation by filing multiple lawsuits against businesses with whom they have no real relationship (Harris), and plaintiffs who seek out unintentional, temporary violations of disability laws and attempt to profit from them (Gunther). These types of lawsuits aren’t only harmful for businesses in particular, they’re also dangerous to the rights of disabled persons in general, because they cast doubt on the merits of any lawsuit brought on behalf of disabled persons, including legitimate ones. Harris and Gunther will, hopefully, provide some guidance for businesses, disabled persons and the attorneys who represent both groups in deciding whether to pursue a disability lawsuit.

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