Although California has had anti-discrimination laws to protect the disabled for over thirty years, it is only in the past few years that California has begun to see accessibility lawsuits brought by the thousands per year. See the “History” section, below.
More significantly, California’s private enforcement community has argued that the failure of a business to meet certain building standards for accessibility by people with disabilities is a form of discrimination, no different from race, gender or age discrimination. With all possible respect, and without suggesting that the failure of business to make appropriate arrangements for visitors with disabilities is ever appropriate, there are a number of significant differences, which include:
1. A six-year-old can spot race, gender or age discrimination, but a costly expert is required to identify accessibility impediments for people with disabilities; few business owners will be able to properly remove all accessibility impediments just by reading through the applicable guidelines.
2. Removal of accessibility barriers can be very costly, but eliminating race, gender or age discrimination barriers usually comes at virtually no cost. To completely remove all accessibility impediments which could lead to a lawsuit at the average small business could cost $50,000 to $500,000 or more.
3. There is no excuse for failing to eliminate race, gender or age discrimination based on the financial resources of the firm in question; however, the “readily achievable” standard for the removal of accessibility barriers means that the same thing can be right for one business and wrong for another. Thus, the same restroom might be “discriminatory” at a brokerage house and not at a taco stand. Because only a judge can determine this conclusively, the majority of these cases settle, regardless of whether the renovation in question is appropriate or not.
4. Discrimination based on race or, age or gender is almost always knowing and intentional, while failing to make structural modifications to facilitate accessibility by people with disabilities has been described as "benign indifference"-few business owners genuinely wish to exclude people with disabilities, and stories of businesses and customers going "above and beyond" to accommodate disabled visitors abound.
Should we really be using laws designed to remedy hate crimes to change building standards?
While it is true that California has had accessibility laws which protect people with disabilities for over thirty years, very few lawsuits were filed until recently. In 1990, the Americans with Disabilities Act (“ADA) was passed, and became effective in 1992. Because the ADA does not allow plaintiffs to recover monetary damages (all they can get is an order to force a building owner to make changes, and the legal fees necessary to get it), California saw few of these lawsuits until the California legislature passed measures which made any violation of the ADA also a violation of California’s antidiscrimination laws. Noncompliance with the ADA was made a violation of California’s Disabled Persons Act [Cal. Civil code §§ 54-55] by SB 1240 and California’s Unruh Civil Rights Act [Cal. Civil code §§ 51-52] in 1998 by AB 2702.
Another factor which has made the lawsuits so profitable is the “minimum damage” amount which is provided by statute. For years it was only $250.00, but it has been consistently increased by the California legislature. In 1994, SB 1288 increased the minimum damages under the Unruh Act from $250.00 to $1000.00. In 2001 the minimum amount was increased again, from $1,000 to $4,000 by AB 587, sponsored by the California Attorney General’s office. Legislators were told by the bill’s author it would increase the penalty for “hate crimes and discrimination crimes”—nothing was mentioned about using the measure to improve building standards for accessibility for people with disabilities.