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How Amendments to the ADA Currently Pending in Congress Could Affect California Businesses

Legal News GavelAny business that operates a “brick and mortar” location that is open to the public is subject to laws that address accessibility for people with disabilities. The Americans with Disabilities Act (ADA) of 1990 established rules and guidelines for businesses in California and around the country. The statute prohibits any business operating a “public accommodation” from discriminating against individuals on the basis of a disability. Failing to provide reasonable accommodations to people with disabilities can result in administrative penalties and civil liability to aggrieved individuals. A bill currently pending in the U.S. Congress, however, could limit individuals’ ability to bring suit under the ADA. H.R. 620, also known as the ADA Education and Reform Act (AERA) of 2017, would require complainants to provide notice to business owners about “architectural barriers to access,” and it would only allow a California discrimination lawsuit if the business fails to respond adequately.

The ADA defines “public accommodation” broadly, including hotels and other lodging facilities, restaurants and bars, theaters and exhibition spaces, auditoriums and other event spaces, retail establishments, service establishments like laundromats and gas stations, public transportation depots, parks and other recreational areas, schools, shelters and other social service establishments, and exercise or recreational facilities like gyms or bowling alleys. 42 U.S.C. § 12181(7). In short, any business that is open to the general public is likely to meet the ADA’s definition of a public accommodation.

Businesses that operate public accommodations may not discriminate “in the full and equal enjoyment” of whichever goods or services the business provides because of a customer’s disability. Id. at § 12182(a). This means that businesses cannot deny service to a person because of a disability, much as they cannot discriminate on the basis of race or religion. It also means that businesses, whenever practicable, must remove architectural barriers that prevent access by people with disabilities, and they must provide facilities that allow such access. Id. at § 12183; 28 C.F.R. §§ 36.304, 36.401.

The U.S. Attorney General is authorized by the ADA to investigate alleged failures to provide reasonable accommodations for individuals with disabilities, and both the government and aggrieved individuals can commence civil lawsuits. 42 U.S.C. §§ 12188, 2000a-3(a). The statute allows a civil lawsuit when an individual with a disability “has reasonable grounds for believing that [they are] about to be subjected to discrimination.” Id. at § 12188(a)(1). If the individual has “actual notice” that a business subject to the public accommodation rules “does not intend to comply with [their] provisions,” the ADA states that the individual is not required “to engage in a futile gesture.” Id.

The AERA would modify this provision of the ADA. While it retains the part about “futile gestures,” it would add specific requirements for notifying a business about an alleged architectural barrier, and it would provide a period to allow the business to cure any deficiencies. The notice must “specify in detail the circumstances under which an individual was actually denied access to a public accommodation,” identify the specific sections of the ADA that were allegedly violated, and state whether the individual asked for the removal of the alleged barrier. H.R. 620 § 3.

Real estate and construction litigation attorney James G. Schwartz has represented Bay Area business and property owners for over 40 years. Contact us online or at (925) 463-1073 today to schedule a free and confidential consultation to see how we can help you.

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