Mcle Self-study Article: Equal Access - Including Persons of Disabilities Under the Ada

• Publication year: 2021
• Author: Marty J. Nicholson, Esq. and Janis Kent, FAIA CASp

MCLE Self-Study Article: Equal Access - Including Persons of Disabilities Under the ADA

Check the end of this article for information on how to access one MCLE self-study ethics credit.

Marty J. Nicholson, Esq. and Janis Kent, FAIA CASp

Marty J. Nicholson was an associate attorney for Calhoun & Associates representing disabled individuals with visual impairments filing numerous ADA complaints on their behalf. She has been an advocate for the visually impaired having two parents who became blind later in life. Currently, her private practice includes land use entitlements. She can be reached at marty@nicholson-law.com.

Janis Kent, FAIA CASp is a licensed California Architect, has been involved in the world of Accessibility since the mid-1980's. She is the Founding President of the Certified Access Specialist Institute (CASI), is a Certified Access Specialist, and designated as a Subject Matter Expert by the California Division of the State Architect. Additionally she has provided training seminars and authored books on Accessibility, with the latest published by Wiley, which are compilations of architectural details for ADA and California Building Code used by architects, designers, building officials, and facility managers.

I. INTRODUCTION

Jay was standing on the corner outside of his apartment and was checking his phone constantly because he was due in court and had ordered a Lyft ride thirty minutes earlier. The ride should have picked him up fifteen minutes ago. Little did Jay know that the Lyft driver drove up to the curb, saw his guide dog, and immediately left not wanting the dog in the car, leaving Jay without a ride. Trudy's family was going to dinner to celebrate her grandmother's birthday. The restaurant was highly regarded for its food and views, so she was looking forward to the occasion. Years earlier Trudy had been in a car accident that left her partially paralyzed and so she used a motorized wheelchair to get around. When Trudy and her family got to the restaurant, she faced a set of stairs with no ramp or elevator. Long story short, Trudy's family could not enjoy their planned dinner because there were no options for getting Trudy to the reserved table. It was either dine without Trudy or go someplace else. These are but some of the many discrimination experiences of people with disabilities that occur every day.

The heart of discrimination for the disabled population is about accessibility because the lack of accessibility denies and prevents people with disabilities from participation in society and living independently. It has been thirty-one years since former President George W. Bush signed the Americans with Disabilities Act (ADA) into law on July 26, 1990.¹ The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including "employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services."² Interestingly enough, the ADA does not include religious institutions or private clubs. The ADA's purpose is to provide a comprehensive national mandate for eliminating discrimination against people with disabilities; provide consistent enforceable standards; prevent the isolation of disabled persons; provide legal recourse to address ongoing discrimination; and assure equal opportunity, full participation, and independent living for the disabled population.³ In short, the law was designed to eliminate discrimination by requiring full and equal access. While the ADA was adopted to address those issues, years later many government buildings and private businesses are still not accessible.

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California has long been a leader in enacting antidiscrimination laws and ahead of the nation when it comes to protecting the interests of people with disabilities against discrimination. Laws like the Unruh Civil Rights Act and the California Disabled Persons Act were enacted long before the ADA. Like the ADA, California's disability laws require enforcement through private lawsuits by the disabled person. "Extortionist," "vexatious litigant," and "serial litigant" are some of the repeatable names attached to disabled people who attempt to enforce their civil rights under these antidiscrimination laws. While most people may respect and admire attorneys who represent and protect the civil rights of people based upon sex, race, color, religion, and ancestry, the same is not always true for attorneys representing the disabled population.

In this article, Section II will discuss the disabled population; Section III will discuss the ADA and California laws relating to disability discrimination; Section IV will discuss real property and business owners' responsibilities under the laws; and Section V will discuss steps real property and business owners can take to become compliant with existing laws.

II. THE DISABLED POPULATION

Before discussing the civil rights laws enacted to prevent discrimination against disabled persons, it will be helpful to understand who is disabled and how the law defines disability. A disabled litigant or their companion may only bring a lawsuit to enforce his/her civil rights under the ADA if that person has a disability or is with a person with a disability. While this may seem straightforward, this threshold question can be a challenge under Title I of the ADA. Under Title III of the ADA, this element is usually not at issue.

A. How Does the Law Define "Disability"?

An individual has a disability for purposes of the ADA if he or she meets any of the following: 1) a physical or mental impairment that substantially limits one or more major life activities of such individual; 2) a record of such impairment; or 3) is regarded as having such an impairment.⁴ While there has been significant litigation over what constitutes a disability in the area of employment discrimination, under Title III the plaintiff's disability is many times readily apparent and easy to prove and therefore less likely to become an issue.⁵

In the past, some courts have incorrectly ruled that if a physical or mental impairment that substantially limits one or more major life activities can be mitigated through the use of aids, then the individual can no longer be classified as disabled. In 2016, the ADA Amendments Act clarified that "the definition of 'disability' shall be construed broadly."⁶ The ADA Amendment went on to clarify a number of exclusions in the definition of disability, including, but not limited to, temporary disabilities, transvestites, and illegal drug users (if not currently in a supervised rehabilitation program) which are not covered within the definition of disability.⁷ Much more has been said about the third prong of "is regarded as having such impairment" but since most lawsuits dealing with the third prong of the disability definition are mostly under employment cases, Title I of the ADA, this article will not delve into it.⁸

B. America's Disabled Population

The most recent statistics on disability numbers from the Centers for Disease Control and Prevention (CDC) are from an August 2018 report which states that "[o]ne in 4 U.S. adults have a disability that impacts major life activities."⁹This equates to roughly sixty-one million Americans having some form of disability. The CDC classifies disabilities into six types including (1) mobility; (2) cognitive (mental); (3) hearing; (4) vision; (5) independent living; and (6) self-care (i.e., dressing, bathing, etc.).¹⁰ The most common disability is mobility, with cognition running second. The 2020 Annual Disability Statistics Supplement compiled by the American Community Survey states that 13.2% of the total U.S. population had a disability in 2019, of which 12.7% live in the community (non-institutionalized).¹¹ Moreover, it is estimated that 49% of the population 75 years and older have a disability.¹² It should be noted that approximately 71.5 million baby boomers (sometimes referred to as the "silver tsunami") will reach age 65 by the year 2030.¹³

Today we know that people with disabilities are more actively participating in their communities and are determined to live more independently; they (and their families) are actively patronizing businesses. Moreover, older Americans suffer from all types of disabilities, yet they are consumers who will be demanding products and services. Recent studies have found that people with disabilities tend to shop or acquire services when the environment is accessible and friendly.¹⁴ Most of us have lived long enough to see how the hotel industry went from "no pets allowed" to "pet-friendly" to increase their clientele. The disabled population is a consumer population, and those businesses who have made shopping, dining, and recreating accessible for the disabled by complying with disability construction standards and regulations will find new customers and larger profits. The disability market has 1.2 trillion dollars in

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disposable income.¹⁵ Companies that embrace and welcome people with disabilities are "four times more likely to have shareholder returns that outperform their peers."¹⁶

C. Disability Discrimination

"Ableism" is a term for discrimination and social prejudice against people with disabilities or those that are perceived to be disabled. This idea is that able-bodied individuals are somehow superior and people with disabilities are considered inferior. Disability discrimination, at times, is difficult for businesses and even legal personnel to understand because service to people with disabilities has not been considered. Some property and business owners believe the "injury-in-fact" must mean an actual physical injury and their attorneys waste time propounding discovery attempting to identify a physical injury that occurred when the person experienced discrimination. The "injury-in-fact" is when a disabled person is treated...