ADA and Accessibility Risk Management for Lawyers Part II

This is the second part of an article.  The first part can be found here.  This blog is used with permission from the author.  The original post appeared on the FlashPoint Mediation website.

By: Shirish Gupta

Tax Incentives

In recognizing that society benefits when persons with disabilities are given access, Congress agreed that the public should bear some of the cost of the remediation through tax credits and deductions.  The Disabled Access Credit applies to businesses with 30 or fewer full time employees with total revenues of less than $1M in the past year.  It covers such expenses as removing barriers, providing sign-language interpreters and making written materials accessible (i.e Braille, large print, audio recording).  Section 190 of the IRS Code provides a maximum deduction of $15,000 per year for the cost of removing architectural barriers.  “A taxpayer may elect to treat qualified architectural and transportation barrier removal expenses which are paid or incurred by him during the taxable year as expenses which are not chargeable to capital account. The expenditures so treated shall be allowed as a deduction.”  26 USC §190(a)(1).

Unruh Act

The Unruh Civil Rights Act of 1959, codified in Civil Code § 51 et seq., ensures that all Californians have “ full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”  It applies to more businesses than the ADA, but for our purposes, all we need to know is that both apply to lawyers.

The Act expressly prohibits disability discrimination: “No business establishment of any kind whatsoever shall discriminate against, boycott or blacklist, or refuse to buy from, contract with, sell to, or trade with any person in this state on account of [a disability].”  Civil Code §51.5(a).  The standard penalty for violating the Unruh Act is at least $4,000 and at most treble actual damages plus attorneys’ fees.  Civil Code §52(a).  In 2012, the legislature reduced the penalties in certain circumstances discussed below.

For years, disability plaintiffs have sued under both the ADA and the Unruh Act given the latter’s minimum statutory damages and attorneys’ fees provision.

California Disabled Persons Act

In 1968, California enacted the Disabled Persons Act (codified at Civil Code §54 et seq.).  The Act also prohibits discrimination based on disability in public accommodations, which a lawyer’s office is.  Civil Code §54.1.  The penalty for violating the Disabled Persons Act is less than the Unruh Act, which is one reason that disability plaintiffs prefer to sue under the Unruh Act.  The penalty is at least $1,000 and at most treble actual damages plus attorneys’ fees.  Civil Code §54.3.

The Deck Is Not Stacked Against Defendants

Small businesses often complain that the California disability rights laws are unfairly pro-plaintiff.  In 2012, the California Supreme Court and the state legislature sought to balance the scales a bit.  First, in response to lobbying from the business community, the California legislature enacted SB 1186 in September 2012 imposing heightened requirements on plaintiffs and plaintiffs’ attorneys in disability actions.  Among other things, it prohibits plaintiffs’ attorneys from sending businesses letters identifying construction-related accessibility issues and also asking for payment.  Civil Code §55.31.  In addition, to minimize defense legal fess, the legislature now allows defendants to seek a stay and an early evaluation conference.  Civil Code §55.54(b).  It also reduces the minimum statutory fines where the violation is fixed within 30 or 60 days depending on whether the defendant is a small business or if the construction was approved by the city building department.  Civil Code §55.56(f).

Second, the Supreme Court unanimously held that prevailing defendants in disability actions brought under state law are entitled to their attorneys’ fees under Civil Code §55.  Jankey v. Song Koo Lee, 55 Cal. 4th 1038 (2012).  This encourages defendants to vigorously defend cases where they believe they are complying with the ADA/Unruh Act and where they might be able to collect from the individual plaintiff or public interest group.  In addition to the collectibility issue, judges sometimes avoid awarding fees by finding that neither party is the prevailing party as District Judge Avila recently did in the closed captioning case against Netflix.

Title I of the ADA: Employment Accommodation

Title I of the ADA and the California Fair Employment and Housing Act govern the hiring and retention of workers with disabilities.  Under these Acts, the only disability-related question that an employer can ask at the time of hiring is whether the candidate can do the job with reasonable accommodation.  42 USC §12112(d)(1).  The cannot ask the employee to submit to a medical examination to verify whether the employee can do the work.  42 USC §12112(d)(2).

The ADA applies to employers with 15 employees whereas FEHA applies to employers with 5 employees, so most solo and small law firms will only need to comply with FEHA.  Compare 42 USC §12111(5)(A) with Cal. Govt. Code §12926(d).  The EEOC has a particularly helpful FAQ website for employees with disabilities.

Highlighting the overlapping goals of federal and state law, FEHA’s goal is to:

“ensure discrimination-free access to employment opportunities notwithstanding any individual’s actual or perceived disability or medical condition; to preserve a valuable pool of experienced, skilled employees; and to strengthen our economy by keeping people working who would otherwise require public assistance. These regulations are to be broadly construed to protect applicants and employees from discrimination due to an actual or perceived physical or mental disability or medical condition that is disabling, potentially disabling or perceived to be disabling or potentially disabling. The definition of “disability” in these regulations shall be construed broadly in favor of expansive coverage by the maximum extent permitted by the terms of the Fair Employment and Housing Act (“FEHA”).”  2 CA ADC §7293.5(b).

In essence, employers must reasonably accommodate any potential or current employee with a disability.  “Reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities.”  As with access, this is a balancing test with the burden on the employer: “An employer is required to provide a reasonable accommodation to a qualified applicant or employee with a disability unless the employer can show that the accommodation would be an undue hardship — that is, that it would require significant difficulty or expense.”

I hope that this was helpful in highlighting a lawyer’s obligations under the ADA and the Unruh/FEHA Acts.  We’re working on a separate article focused just on modifying policies and practices and plan to publish that shortly.

——

Shirish Gupta is a California-based mediator with Flashpoint Mediation and a volunteer mediator with the California Department of Fair Employment and Housing.  He mediates ADA and Unruh disputes.  This article is written in conjunction with his presentation at the 2013 California Bar Association’s Solo and Small Firm Summit.  Shirish can be reached at sgupta@flashpointmediation.com.  Feedback is always welcome.

Copyright 2013: Flashpoint Mediation

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