ADA Law Defense Lawyer
& Unruh Act Defense
By Douglas Wade, Attorney
Email | Call (800) 484-4610
While the concept of drive-by shootings is widely known, ADA drive-by lawsuits remain relatively obscure within the business community. In these cases, a plaintiff, often referred to as a “tester,” conducts a quick assessment of a company’s property to gather evidence before initiating a lawsuit. This trend has posed significant challenges for various stakeholders, including commercial landlords, property owners, franchisees, tenants, and franchisors. Many are turning to ADA defense attorneys at Nakase Wade for guidance in navigating the complexities of ADA compliance.
Unlike California’s Unruh Act, the Americans with Disabilities Act of 1990 (“ADA”) is a federal law with the stated purpose of providing “clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.” (42 U.S.C. § 12101(b)(2).
To prove a violation occurred, a plaintiff, with the assistance of an ADA defense attorney, must demonstrate the following:
The ADA’s Title III specifically bars discrimination based on disability in public accommodations’ operations. This category includes businesses that are typically open to the public and may be categorized under one of the 12 ADA-designated classifications, such as movie theaters, restaurants, schools, recreation facilities, day care facilities, and doctors’ offices. Additionally, it mandates that new constructions or modified public accommodations, in addition to commercial facilities like nonresidential, privately owned structures (e.g., warehouses, office buildings, or factories), adhere to the ADA requirements.
To bring a civil rights case in federal court, which includes those seeking equitable relief, plaintiffs must meet three criteria:
(Lujan v. Defenders of Wildlife (1992) 504 U.S. 555, 560; 42 U.S.C.A. § 12182.)
In the context of the ADA, a complainant establishes standing and incurs an injury the moment they become aware of a public accommodation’s discriminatory conditions, deterring them from using or visiting that facility. As long as these discriminatory conditions persist, and as long as the plaintiff is conscious of them and is still deterred, the ADA injury persists.
If an employer finds themselves facing an ADA lawsuit, they should not hesitate to contact an ADA defense attorney right away to construct an ADA lawsuit defense. (Reycraft v. Lee (2009) 177 Cal.App.4th 1211.)
According to the ADA, a disability is defined as a mental or physical impairment that significantly restricts at least one of an individual’s primary life activities. (42 U.S.C. § 12101(2).) The U.S. Justice Department further clarifies that an “impairment” is a condition that affects at least one of the body’s systems, encompassing neurological and musculoskeletal systems. Additionally, significant life activities include essential functions like self-care, manual tasks, mobility, vision, hearing, breathing, speech, learning, and employment. (28 C.F.R. 36.104).
Title III of the ADA safeguards three groups of disabled individuals, comprising:
Should a company find itself facing an ADA lawsuit, it should not hesitate to contact an ADA defense attorney right away to construct an ADA lawsuit defense. An ADA compliance defense attorney will understand the ins and outs of Title III and be able to counter any claims.
The ADA specifies 12 types of establishments that qualify as public accommodation places under Title III. (42 U.S.C. § 12181.)
In essence, this encompasses virtually any public space open to the public, including establishments like a grocery store, bakery, hardware store, clothing store, shopping center, or any similar rental or sales establishment. (42 U.S.C. § 12181(7)(E).)
The legislative intent supporting Title III emphasizes a liberal interpretation of the public accommodations categories, aiming to provide disabled individuals equal access to the diverse array of establishments accessible to those without disabilities. (PGA Tour, Inc. v. Martin (2001) 532 U.S. 661, 676-77.) However, while the definition of a public accommodation is expansive, it is also exclusive, meaning that Title III of the ADA does not cover businesses and their operations not falling within one of the aforementioned twelve groups.
Exceptions
There are two exemptions to this rule. First, private establishments or clubs granted exemption under Title II of the Civil Rights Act of 1964 (42 U.S.C. 2000-a(e)) are not subject to Title III. Second, entities controlled by religious organizations or religious organizations, including places of worship, are also exempt. (42 U.S.C. § 12187.)
If an employer is facing an ADA lawsuit, they should not hesitate to contact an ADA defense attorney right away to construct an ADA lawsuit defense. ADA compliance defense attorneys Know how to craft a compelling argument defending employers in the event of a Title III complaint.
A plaintiff’s claim of not being able to access a public accommodation due to their disability hinges on whether there was a breach of relevant standards of accessibility.
Under the ADA, a disabled individual facing a “barrier,” which refers to an architectural element failing to meet pertinent standards related to their disability, experiences unlawful discrimination. Notably, no requirement exists to prove intent. (42 U.S.C. § 12182(b)(1)(A)(i); Chapman, supra, 631 F.3d at p. 947, fn. 5.) Unlike other civil rights violation cases, liability here does not hinge on demonstrating deliberate discrimination. (Jankey v. Lee (2012) 55 Cal.4th 1038, 1044.)
To challenge such a claim, an employer should seek the help of an ADA defense attorney who can craft a strong ADA lawsuit defense. ADA defense lawyers know how to craft convincing arguments that interpret the law in favor of an employer.
Existing Facilities Prior to January 26, 1993
Public accommodations deemed as “existing facilities” are obligated to get rid of architectural barriers that impede access for individuals with disabilities, provided the removal is reasonably achievable. (42 U.S.C. § 12182(b)(2)(A)(iv).)
Facilities and Buildings “Altered” or “Constructed” After January 26, 1993
For structures and facilities built or modified after January 26, 1993, “discrimination” encompasses the failure to construct, design, or alter the facility in a manner that ensures it is usable and easily accessible by disabled individuals. (42 U.S.C. § 12183(a)(1).) The determination of whether an architectural feature hinders equal and full access for disabled individuals is founded on the ADA Accessibility Guidelines. (Chapman v. Pier I Imports (U.S.), Inc., 631 F.3d 939, 945 (9th Cir.2011).)
According to the Civil Rights Act of 1964, a person with a disability who has been wronged by an ADA violation may pursue injunctive relief, and must give notice to any local or state agency in order to legally file a private lawsuit based on these provisions. (Botosan v. Paul McNally Realty (2000) 216 F.3d 827 (9th Cir.).)
The ADA provides two channels for upholding Title III requirements:
However, to ensure that there are no violations of the ADA requirements, an employer should not hesitate to seek the advice of an ADA compliance defense attorney. (28 C.F.R. 36.501-36.508.) Business owners do not need the help of a ADA lawyer by going to the ADA’s website for more information.
As Title III does not specify a statute of limitations for private claims, federal courts handling ADA cases will look for the most similar state statute of limitations. This practice aligns with established legal precedent, which dictates adopting a local time limitation as federal law when Congress has not decided a time frame for a federal cause of action, as long as it does not conflict with federal policy or law. (Wilson v. Garcia (1985) 471 U.S. 261, 266 [“When Congress has not established a time limitation for a federal cause of action, the settled practice has been to adopt a local time limitation as federal law if it is not inconsistent with federal law or policy to do so.”].) Again, if facing a legal action under Title III, an employer should immediately seek representation from an ADA defense lawyer.
According to federal law, the available remedies in a private lawsuit are limited to injunctive relief, which may encompass a restraining order, a temporary or permanent injunction, or other similar orders. However, punitive or compensatory monetary damages, as well as civil penalties, are not an option. In cases involving violations of reasonably achievable removal of barriers or requirements for accessible alterations and new construction, remedies to rectify the violation may involve an order to modify facilities that do not fulfill the Act’s standards to ensure they are readily accessible and usable by disabled individuals. Further, remedies may involve mandating the provision of auxiliary aids or services, policy modifications, or alternative ways of to remove barriers.
Therefore, in a private action for violating Title III of the ADA, while the U.S. Attorney General can seek damages on behalf of the aggrieved person, the available recourse is limited to injunctive relief, not damages. (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 670.)
In California, a disabled individual may be eligible for $4,000 for each visit to a public accommodation where they encounter an access barrier or are discouraged from accessing it due to such a barrier. (Cal. Civ. Code, §§ 52(a), 55.56(b).)
The winning party has the right to recover attorney’s fees of a reasonable amount. In specific cases, courts have ruled that a victorious defendant may only be granted attorney’s fees if they can demonstrate that the plaintiff’s lawsuit was unreasonable, frivolous, or lacking foundation. (Summers v. A. Teichert & Son (1997) 127 F.3d 1150 (9th Cir.).
In most cases, a disabled plaintiff faces no significant hurdles in proving the first two factors of standing for a claim under Title III. It is the third factor, demonstrating a plausible desire or intent to return to the location where they previously ran into an ADA violation, or failing to show a probability of discrimination upon returning, that certain courts have used to prevent plaintiffs from looking for injunctive relief for past Title III ADA violations. (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.].)
This is one of the defenses that an ADA defense lawyer would consider using when crafting an ADA lawsuit defense for an employer.
Undue hardship in accommodation refers to significant expense or difficulty, taking into account the net cost and nature of the accommodation, the complete economic resources of the covered business, the impact on the facility’s operation, the ability of other workers to fulfill their duties, and the effect on the facility’s ability to operate. This factors in accommodations that are excessively substantial, extensive, or disruptive, or that would completely alter the operation or nature of the business.
This counts as another defense that an ADA defense attorney would consider using when crafting an ADA lawsuit defense for an employer. (42 U.S.C. § § 12111; 29 C.F.R. §1630.2(p) Appendix; EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship.)
When evaluating whether a person would create a direct threat, factors to consider include the risk duration, the severity and nature of potential harm, the likelihood of potential harm occurring, and the imminence of potential harm.
This is another defense that an ADA defense attorney would consider using when putting together an ADA lawsuit defense for an employer. (29 C.F.R. §1630.2(r); see also School Board of Nassau County v. Arline (1987) 480 U.S. 273.)
These defenses encompass scenarios where the removal of alleged barriers would completely change the nature of the public accommodation belonging to the defendant; where removal of the alleged barriers is not readily achievable; and where the suggested modifications would create an unreasonable burden on the business owner. (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.
An ADA compliance defense attorney might consider using this defense when crafting an ADA lawsuit defense for an employer.
These defenses cover situations where compliance would be impracticable on a structural level; where the claim of a plaintiff is time-barred by the statute of limitations; and where the renovations were not considered alterations. (28 CFR §36.401) This is one of the defenses that an ADA compliance defense attorney would consider using when crafting an ADA lawsuit defense for an employer.
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