United States: Employment Law Commentary - A Revised Roadmap For Disability Access in California

Title III of the Americans with Disabilities Act of 1990 imposes substantial obligations for those who own or lease facilities open to the public. Not only must newly constructed and altered facilities meet exacting standards for disability access, but so, too, must existing facilities be free of barriers to access to the extent that is "readily achievable." To mitigate the impact of these obligations, Title III remedies are limited to injunctive relief and attorney’s fees. Damages are not available. Predating the ADA by over two decades, California law has imposed similar disability access requirements, with two important differences: remedies include damages and, until recently, there was no obligation to remove barriers from existing facilities. Thus, with barrier removal obligations, the ADA had greater reach, while with damages the state law created greater financial exposure¹

More recently, an amendment to the state legislation as interpreted by a federal court has effectively merged the two laws. As interpreted by the court, California law now incorporates the ADA’s barrier removal obligations and, unlike the federal law, provides for damages if those obligations are not met. The implications are sobering. Those who own, lease, purchase, or operate places of public accommodation face substantial exposure to liability if they do not take steps to ensure that their facilities not only complied with applicable law when built or altered, but also are presently free of "readily" removable barriers to access.

Title III prohibits "discrimination" against the disabled with respect to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a). In general, "public accommodations" are facilities which are open to the public such as hotels, restaurants, theaters, and professional offices. Title III applies only to private, as opposed to public (i.e., governmental), entities. If you own, operate, or lease to a business that serves the public, and you are not a governmental entity, then you are covered by Title III of the ADA.

As relevant to facility design and construction, Title III imposes three types of obligations:² (1) new facilities must be designed and constructed so that they are readily accessible to and usable by people with disabilities (42 U.S.C. section 12183 (a) (1)); (2) altered areas of existing facilities must be readily accessible to and usable by people with disabilities ("alterations obligation") (42 U.S.C. section 12183(a)(2)); and (3) architectural barriers in existing facilities, whether altered or not, must be removed if readily achievable ("barrier removal obligation") (42 U.S.C. § 12182(b)(2)(A)(iv), (v)).

Title III requires that public accommodations and commercial facilities designed and constructed for first occupancy after January 26, 1993, be "readily accessible to and usable by individuals with disabilities." 42 U.S.C. § 12183(a). Accessibility guidelines ("ADAAG") exist which set forth the technical standards for accessible design. See "Standards for Accessible Design," located at Appendix A to 28 C.F.R. Part 36.

Likewise, the ADA provides that, where alterations are undertaken on or after January 26, 1992, the altered portions of the facility must be readily accessible to and usable by individuals with disabilities.

In addition, when alterations affect or could affect the usability of or access to an area of the facility containing a so-called "primary function," the entity must also make the alterations in such a manner that the path of travel to the altered area and the bathrooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by individuals with disabilities. The entity may be relieved of this requirement, however, where the alterations to the path of travel or the bathrooms, telephones, and drinking fountains serving the altered area are disproportionate to the overall alterations in terms of cost and scope (as determined under criteria established by the Attorney General). 42 U.S.C. § 12183(a)(2).

The regulations to the ADA define an alteration broadly as "a change to a place of public accommodation or a commercial facility that affects or could affect the usability of the building or facility or any part thereof."³ According to the Federal Register preamble to Title III, "the Act requires the concept of ‘usability’ to be read broadly to include any change that affects the usability of the facility, not simply changes that relate directly to access by individuals with disabilities."⁴ The Department of Justice ("DOJ") provides the following examples of alterations: installing a new display counter, moving walls in a sales area, replacing fixtures, carpet or flooring, and replacing an entry door. Simple maintenance, such as repainting a wall, is not considered an alteration. See ADA Guide for Small Businesses, DOJ, www.ada.gov.

A lesser standard of compliance — the so-called "barrier removal" standard — applies to all buildings, including those constructed prior to the effective date of the ADA. In such facilities, the ADA requires the removal of architectural barriers and communication barriers that are structural in nature,⁵ where such removal is "readily achievable."⁶

"Readily achievable" is nominally defined as "easily accomplishable and able to be carried out without much difficulty or expense." 42 U.S.C. § 12181(9). Whether barrier removal is readily achievable depends on a balancing of the difficulty and expense of the proposed project and the overall financial and other resources of the entity. As this plays out in practice, it can include substantial expense where there are substantial available resources.⁷

The obligation to engage in readily achievable barrier removal is an ongoing duty. The DOJ recommends that public accommodations establish procedures for ongoing assessments. Various architects, engineers, and disability consultants, among others, have the necessary expertise to conduct these surveys.

Where an entity can demonstrate that the removal of a barrier is not readily achievable, Title III still requires making goods, services, facilities, privileges, advantages, or accommodations available through alternative methods if such methods are readily achievable. See 42 U.S.C. §§ 12182(b)(2)(A)(iv), and (v).

Remedies under Title III are limited to reasonable attorney’s fees and injunctive relief, including orders to alter facilities to make them accessible, orders to provide auxiliary aids and services, and orders to modify policies.⁸ Although damages are not available under Title III, injunctive relief can also impose drastic costs. For example, in successfully defending itself in California for Disability Rights vs. Mervyn’s, Mervyn’s presented evidence that the alterations sought by plaintiffs — widening of spaces between fixtures — would reduce selling space to such an extent that it would cost the company $30 million in lost profits annually.⁹

In sum, the level of access required under the ADA depends on when a building was constructed and when significant alterations were undertaken. Buildings constructed after passage of Title III are, on the whole, required to be fully compliant with ADAAG’s technical access standards. Buildings altered after that date must comply with the same standards within the altered areas and in regard to the path of travel leading to the altered area. Buildings which were constructed prior to Title III are not held to such a standard. In such buildings, the lesser "barrier removal" standard applies. (As discussed below, however, such buildings may be subject to California access laws, which preceded the ADA by more than 20 years.) The ADA thus strikes a balance between requiring full access with respect to new buildings and building upgrades, while not requiring extensive retrofitting of existing buildings.

State disability access law historically was similar to the ADA, with two important exceptions. First, until recently California did not impose a barrier removal obligation for existing buildings. Second, damages were (and still are) available under state law.

In 1968, the California Legislature enacted Civil Code § 54, et seq., entitled the "Blind and Other Physically Disabled Persons Act" ("Disabled Persons Act"). The Disabled Persons Act confers on disabled persons a right of full and equal access to places of public accommodation. Cal. Civ. Code § 54.1(a). In order to give content to the Disabled Persons Act, the Legislature enacted two additional laws in 1968 and 1969. First, in 1968, the Legislature enacted Government Code § 4450, to ensure that all buildings constructed with public funds be "accessible to and usable by the physically handicapped." The law directed the State Architect to develop standards for making buildings accessible to persons with disabilities (see Cal. Gov’t Code § 4450) and adopted as an interim standard the American Standards Association Specifications A117.1/1961 ("ASAS"). See Cal. Gov’t Code § 4451(d). In 1969, the Legislature also enacted Health and Safety Code § 19955, to ensure that public accommodations constructed with private funds "adhere to the provisions of [Gov’t Code § 4450, et seq.]." Cal. Health & Safety Code § 19955. This law became operative on July 1, 1970. In 1971, the Legislature enacted Health & Safety Code 19959, which clarified that section 19955 did not impose an obligation to retrofit existing buildings: "Every existing public accommodation constructed prior to July 1, 1970 … shall be subject to the requirements of this chapter when any alterations, structural repairs or additions are made to such public accommodation. This requirement shall only apply to the area of specific alteration, structural repair, or addition and shall not be construed to mean the entire building or facility is subject to this chapter."

In 1981, the California Office of the State Architect adopted the first set of state standards for access to replace the ASAS. These regulations took effect in 1982 and were codified at Title 24 of the California Code of Regulations. Under Title 24, buildings were required to comply with access standards only when newly constructed, or when certain triggering alterations were undertaken. See "Accessibility for Existing Buildings," Cal. Code Regs. Title 24 § 1134B.1, 2 (provisions apply only to "existing buildings and facilities, when alterations, structural repairs or additions are made to such buildings or facilities…"). Title 24’s treatment of triggering alterations is similar to their treatment under the ADA, with requirements to make accessible the path of travel, as well as the facilities, serving an altered area. See Cal. Code Regs. Title 24 § 1134B.2.1.

For years, it was well established that no barrier removal obligation existed under California’s public accommodations laws (including Cal. Civ. Code § 54, et seq., Cal. Gov’t Code § 4450, et seq., and Cal. Health & Safety Code § 19955, et seq.).Marsh v. Edwards Theatres Circuit, Inc., 64 Cal. App. 3d 881, 888 (1976) (affirmative conduct to modify facilities "is only required when directed by those sections dealing with construction of new facilities or with the repair and alteration of existing facilities.") (emphasis added); Deukmejian v. CHE, Inc., 150 Cal. App. 3d 123, 133 (1983) (reaffirming Marsh).

Effective January, 1997, this well-settled approach was called into question when the Disabled Persons Act was amended to add the following provision: "A violation of the right of an individual under the Americans with Disabilities Act of 1990 (Public Law 101-336) also constitutes a violation of this section, and nothing in this section shall be construed to limit the access of any person in violation of that act." Cal. Civ. Code § 54.1(d), added by Chapter 498, S.B. 1687. While no California court has interpreted this amendment in regard to barrier removal, a federal district court has concluded that the amendment permits a plaintiff to seek damages under the state Disabled Persons Act for failure to remove barriers to access as required by the ADA. Pickern v. Best Western Timber Cove Lodge Marina Resort, 2002 U.S. Dist. Lexis 1709. *21-*22 (E.D. Cal., Jan. 17, 2002) (Lodge was exempt from Title 24, because no alterations, structural repairs, or additions had been made since it was constructed in 1973; the 1997 amendment to the Disabled Persons Act, however, permitted plaintiff nonetheless to seek damages for alleged failure to remove barriers). Although there are good arguments as to why the 1997 amendment should not be construed to create state barrier-removal obligations,¹⁰ the question would have to be viewed as unsettled. Accordingly, public accommodations in California face potential exposure to damages under state law with regard to barrier removal.

One who violates the Disabled Persons Act is liable "for each offense for the actual damages and any amount as may be determined by a jury, or the court sitting without a jury, up to a maximum of three times the amount of actual damages but in no case less than one thousand dollars ($1,000) .…" Cal. Civ. Code § 54.3. In addition to damages, remedies for violations of the Disabled Persons Act include injunctive relief (Cal. Civ. Code § 55) and attorney’s fees (Cal. Civ. Code § 54.3).

Faced with the well-established barrier removal obligations under the ADA and the potential exposure to damages under state law for failure to comply with these obligations, owners, lessees, and operators of public accommodations should consider taking steps to reduce this exposure.¹¹

Existing facilities should be assessed on a continuing basis to determine whether there are access barriers, and such barriers should be removed where it is readily achievable to do so. In most cases, professional guidance is advisable. In addition, the DOJ publishes a useful "Checklist for Readily Achievable Barrier Removal" which is designed to help people identify accessibility problems and solutions in existing facilities in order to comply with the ADA. The checklist counsels the following priorities for planning readily achievable barrier removal projects: (1) accessible approach and entrance; (2) access to goods and services; (3) access to restrooms; and (4) any other measures necessary. Checklist for Readily Achievable Barrier Removal, p. 3, located on the DOJ website at http://www.ada.gov.

Leases and contracts should be reviewed to specify who has responsibility for ensuring compliance with access standards, for defending disability actions, and for indemnifying other parties for any liability. While such contractual allocation of responsibilities does not provide a defense against state or federal disability access claims, it can allocate the burdens of defense and/or liability as among the potential defendants to such an action.

Those who contemplate purchasing or leasing public accommodations in California (including through mergers and acquisitions where real assets are involved) should consider including ADA/Title 24 access issues in their due diligence. This might include both assessing "readily achievable" barrier removal and determining whether new construction and alterations complied with applicable standards. This generally requires a construction history of the facility containing dates of construction and alterations, and an analysis, in consultation with an access expert, or whether their building complied with state and federal requirements in existence at the time the projects were undertaken.

State and federal disability access laws entail substantial obligations for existing facilities as well as for new construction and alterations. Recent judicial construction of these laws effectively has combined the greater scope of the ADA with the broader remedies under state law. Prudent owners and operators of facilities used as public accommodations, as well as those contemplating acquiring such facilities, may want to take this as an occasion to reassess their compliance with these laws.

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Labor Board Reverses Field on Non-Union Disciplinary Interviews

For the third time in 22 years, the National Labor Relations Board has changed its mind on whether employers must accede to requests from non-union employees to have co-workers present for investigatory interviews that may lead to discipline. In its most recent encounter with the issue, the Board held in IBM Corp., 341 NLRB No. 148 (2004) that non-union employers have no such obligation. Accordingly, if a non-union employee asks to have a co-worker present during an investigatory interview, the employer has no obligation under the National Labor Relations Act to grant the request. Though the employer now has no obligation to accede to the request, the employee still has a right to ask, and so cannot be disciplined for making the request.

The tortured history of this issue begins with the Supreme Court’s decision in NLRB v. Weingarten, 420 U.S. 627 (1975). There, in a union setting, the Court held that an employer violates section 8(1) of the National Labor Relations Act ("NLRA" or the "Act"), 29 U.S.C. § 158(a)(1), if it denies an employee’s request to have a union representative present at an investigatory interview which the employee reasonably believes could lead to discipline. The Court’s analysis began with section 7 of the NLRA, which gives employees the right to engage in concerted activity for mutual aid and protection. Requesting a union representative, the Court held, was a form of concerted activity and thus protected by section 7. Denial of such a request thus interferes with an employee’s section 7 rights, and interference with section 7 rights is an unfair labor practice under section 8(a)(1) of the Act. The employer thus violated section 8(a)(1) when it denied the request for representation. The Court also noted that requiring employers to accede to such requests served important policy goals under the NLRA. The presence of a union representative safeguards not only the particular employee’s interest, but also those of the entire bargaining unit; it eliminates a perceived imbalance of power between labor and management; and it provides knowledgeable assistance which may facilitate the investigation. The Court did not address whether the obligation extended to non-union settings.

The Board first addressed the non-union setting in Materials Research Corp., 262 NLRB 1010 (1982) where it held that Weingarten rights extend to non-union employees. Like employees represented by a union, non-union employees have a right under section 7 to engage in concerted activity for mutual aid and protection, the Board held, and an employer violates that right when it denies the non-union employee’s request for the presence of a co-worker during an investigatory interview.

Three years and several political appointments later, the Board reversed itself in Sears Roebuck & Co., 274 NLRB 230 (1985), holding that Weingarten rights do not apply in a non-union setting. In Sears, the Board concluded that such rights are not grounded in section 7, but in other provisions of the Act dealing with union representation. To award unrepresented employees the right to have a co-worker present, the Board held, would be inconsistent with the right of the employer, in the absence of a union, to deal directly with its employees. Thus, the extension of Weingarten rights to non-union employees was not a permissible reading of the Act. The rationale, but not the result, of Sears was modified by the Board in E. I. DuPont & Co., 289 NLRB 627 (1988), where it determined, contrary to Sears, that extending Weingarten rights to non-union employees would be a permissible reading of the NLRA, but held for policy reasons that this should not be done.

In 2000, the Board reversed field yet again in Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000) and held that Weingarten rights do extend to non-union employees. In reaching this result, the Board noted that such rights are grounded in section 7 of the Act and that section 7 applies to both union and non-union employees. Thus, the Board concluded, there was no statutory basis for having one rule for union employees and a different rule for non-union employees. See Bergstrom and Schloss, "NLRB Rules Non-Union Employees Are Entitled to Have a Co-Worker Present During an Investigative Interview," 12 Emp. Law Comm. (August, 2000).

Now, four years later, in IBM Corp, the Board has reverted to its position in E. I. DuPont & Co., holding once again that Weingarten rights do not extend to the non-union setting. This time the Board acknowledged that the NLRA can be read either to grant such rights or not to grant such rights. Both are permissible readings of the Act. Which to choose, therefore, is primarily a policy decision, and the current Board finds that the better policy arguments lie on the side of not extending Weingarten to the non-union setting. In support of its holding, the Board reviewed the various policy arguments presented in Weingarten itself and concluded that they do not apply in the absence of union representation. For example, co-workers, unlike union representatives, do not represent the interests of the entire workforce, but only those of the employee under investigation. Co-workers cannot redress the imbalance of power between employers and employees. Co-workers do not have the same skills as union representatives in resolving disputes, and the presence of co-workers may compromise the confidentiality of investigations. Further, the Board found, circumstances have changed since its earlier decisions, such that employers must conduct confidential investigations more often than in the past, as with sexual harassment claims and to maintain a drug-free workplace. Important among the changed circumstances, in the Board’s view, is the "aftermath" of September 11, which provides "a new vitality" to these policy considerations. Thus, in the non-union setting, "an employer’s right to conduct prompt, efficient, thorough, and confidential workplace investigations" outweighs the right of a non-union employees to have a co-worker present during an investigatory interview.

Accordingly, at least for the time being, a non-union employer does not violate the NLRA by denying an employee’s request for the presence of a co-worker during an investigatory interview. There is a caveat, however. While holding that the non-union employer has no obligation to accede to such a request, at the same time the Board held that employees do have the right to ask. Thus, employees "cannot be disciplined for asserting … the right to seek such representation." You may ask, but you shall not receive. If you ask, it shall not be held against you.