Fast Track Litigation? Rebuttable Presumption in Your Favor? Not Interested...

By Associate Dean Michael Waterstone

Waterstone is guest blogging this month at PrawfsBlawg, on which this piece first appeared.

Here in California, for some time there has been a fairly fierce debate raging between one segment of the plaintiff's bar and the business community relating to disability access litigation. Title III of the Americans with Disabilities Act, a federal law, requires privately owned places of public accommodation (restaurants, movie theaters, bowling alleys, etc.) to be accessible to people with disabilities. The reach of the statute is broad, but the remedies are pretty weak - only injunctions are available. Given the Court's decision in Buckhannon combined with the lack of a damage remedy, often times these are not profitable cases for private attorneys to take, even if they are potentially meritorious.

But under California state law (which offers more protection for people with disabilities than federal law), plaintiffs can get damages for inaccessible privately owned places of public accommodation. Enter a segment of the plaintiff's bar, which brings large number of these cases, often times going after small businesses, and in some instances using questionable demand methods. The business community claims they are being extorted for small "ticky tack" violations which drive their cost of business through the roof (and point to unethical behavior by at least some attorneys/clients who have claimed multiple injuries in multiple places at the same time). Some segments of the disability rights community counter that a violation, no matter how small, can and does have exclusionary and harmful effects on people with disabilities; and that these laws are not new and are not optional. A balanced discussion of the issue can be found here.

In California, one legislative reaction to this situation was SB 1608, which, amongst other things, limited damages and created the California Commission on Disability Access to further study the situation. But I'd like to focus on one other aspect of the SB 1608: it created a program encouraging businesses to hire "certified access specialists" to inspect their businesses for compliance before any litigation. If a business is inspected, they receive an automatic 90-day stay of any lawsuit and may go directly to an early evaluation conference run by the court.

I was particularly interested in this provision. Elsewhere, I have offered (somewhat half-baked) "new governance-y" type suggestions for enforcing disability laws, such as offering employers rebuttable presumptions in their favor if their reasonable accommodation policies and procedures are examined to some extent by the EEOC. Title III of the ADA has always authorized the Department of Justice to certify that State laws, local building codes, or similar ordinances meet or exceed the ADA Standards. The benefit is that in any legal challenge that might be brought under the ADA to facilities constructed in compliance with an ADA certified code, compliance with the certified code constitutes rebuttable evidence of compliance with title III of the ADA.

Not too many places have sought ADA certification (you can see the complete list here). I have always reasoned that this was because businesses did not really fear litigation (a rational position, given the infrequency of litigation and lack of a damage remedy) - if they did, there would be pressure on their local/state governments to have codes certified. So I was interested, though not entirely surprised, to read in the Daily Journal last week (sorry, they don't offer a linking option) that the California program also has not really been used. One plaintiff's lawyers estimated his firm is alerted to these pre-litigation surveys in only 3-4% of its filings.

Why is this the case? I can think of several reasons. First, as offered by a defense attorney in the article, the law is not sufficiently clear on what certain standards practically mean, and therefore certifications are not all that helpful. Second, a company could be left with a potentially discoverable document detailing what it needs to do, and the work might be something that the business might not want to or be able to afford to fix. Third, despite their public statements and lobbying, businesses are not really that concerned about this type of litigation, or at least are not moved enough by the carrot of a stay and an early evaluation conference to take action. This is worthy of future study for those (like me; Orly, you paying attention?) who think about presumptions and different types of administrative mechanisms to enforcing civil rights laws.