California has prohibited discrimination on the basis of disability for over 30 years1 through such laws as the Fair Employment and Housing Act (FEHA),2 the Unruh Civil Rights Act,3 and the Blind and Other Physically Disabled Persons Act.4 As other jurisdictions develop antidiscrimination laws of their own, California continues to aggressively prohibit discrimination, including disability discrimination.
Federal law--including the Rehabilitation Act of 1973,5 the Fair Housing Amendments Act of 1988,6 and the Americans with Disabilities Act of 1990 (ADA)7--embodies principles similar to those found in California law on the issue of disability rights. However, federal law has taken an approach fundamentally different from California's regarding the redress of disability discrimination, specifically in the definition of what constitutes a "disability."
Moreover, while federal law preempts state laws that provide lesser protection from discrimination, state laws that exceed federal requirements remain in force. As a result, the application of disability discrimination laws has varied from state to state. These inconsistencies have led to disparate results in cases alleging disability discrimination, specifically in the context of claims about physical access and academic testing.
The first challenge in applying the laws prohibiting disability discrimination is to determine who is entitled to protection by formulating an appropriate definition of a "disability." Fortunately, a wealth of case law shows that courts have done just that. The cases have centered on whether the protected group should be 1) large, with the court focusing the legal inquiry on whether the plaintiff was treated unfairly, or 2) small, with the court focusing on whether the plaintiff is so significantly limited in his or her abilities that a reasonable accommodation is justified. The U.S. Supreme Court has interpreted the federal Americans with Disabilities Act8 to protect a limited class of people with disabilities: those whose impairments "substantially" limit major life activities.9
In Sutton v. United Airlines, Inc.10 the Supreme Court held that the ADA only protects people whose physical or mental impairments currently (that is, at the time of the alleged discrimination) limit a major life activity substantially. The court reasoned that if a person was using mitigating measures--such as glasses, hearing aids, or medication--to reduce the effects of his or her impairment at the time of the alleged discrimination, the limitation caused by the impairment should be balanced against the mitigating measures. Thus the plaintiffs in Sutton, whose vision impairment was rectified by glasses, were not substantially limited in the major life activity of seeing, and United Airlines was free to exclude them from its employment applicant pool without further consideration.
Federal courts have interpreted the "substantial limitation" requirement narrowly to exclude people whose impairments can be treated to some extent by medications or equipment.11 Courts have applied the Sutton interpretation to exclude from ADA protection people with a variety of mitigated impairments such as diabetes,12 depression,13 and epilepsy.14
Many argue that this limitation is necessary to prevent the granting of unnecessary civil rights protection to people who do not have "real" disabilities--such as people who are slightly near-sighted and wear contact lenses or people who have backaches that are controlled by pain medication. They posit that businesses and employers need to be protected from lawsuits and expensive requests for reasonable accommodation by people with minor impairments. Others disagree, contending that the substantial limitation requirement can go too far. In their view, people with depression who respond well to medication could be refused a job because of their depression, even if it has no relevance to job performance--a refusal with a discriminatory basis. Employers could argue successfully that people with medically treatable depression do not have a disability and are not protected by the ADA because their impairment is not substantially limiting when they take their medication. Disability advocates argue that this type of irrational exclusion is exactly what the disability rights laws should address and forbid.
A few years ago, the California Legislature amended the Fair Employment and Housing Act to make clear that California's definition of "disability" diverges from that in the ADA.15 Under California law, a person is considered to have a disability if his or her impairment limits a major life activity. Proof of substantial limitation is not required.16 Moreover, California does not consider mitigating measures, such as medication or hearing aids, when determining whether a person's impairment is limiting. California thereby avoids the Catch-22 that federal law imposes on people with disabilities--mitigate an impairment and lose protection, or do not mitigate and lose the ability to perform a job. Therefore, employees in California may take their medication, for instance, and still be considered persons with a disability under the law.
Under California law, discrimination on the basis of minor impairments is considered irrational and thus prohibited. On the other hand, the complexity and expense of the accommodations required for the disability must be proportional to the severity of the disability. Thus, California law attempts to focus on the fairness of the treatment to which the person is subjected, not on limiting the size of the protected class. This is the same approach that is used in the context of race and gender civil rights laws. Those laws do not consider how female or male a person is, or how much minority ancestry he or she has. They instead focus on the discrimination and its causation.
Some businesses argue that California's seemingly boundless definition of a disability permits employees and patrons to sue based upon policies that are not intended to harm people with disabilities. And they further argue that the burdens of disability discrimination litigation on businesses and the courts cannot be justified. However, these arguments seek to supplant the balance the California Legislature has struck to prevent discrimination on one hand and stymie frivolous lawsuits on the other.17 While suits containing claims of disability discrimination may pose incidental burdens on businesses and the judicial system, significant obstacles must be overcome before plaintiffs can prevail in these suits. These hurdles principally are causation and available damages and, absent significant discrimination, they often make it impractical to bring suit in the first place.
Damages for Discrimination
Another major difference between the ADA and California law is the availability of damages for victims of discrimination by businesses. Both Title III of the ADA18 and California law require places of public accommodation (which include most private businesses that are open to the public) to remove physical barriers to access--such as steps, heavy doors, and narrow aisles--or to provide alternate means of access. The Unruh Civil Rights Act19 provides for either $4,000 statutory damages or up to three times actual damages.20 Similarly, the Blind and Other Physically Disabled Persons Act21 provides for $1,000 statutory damages or up to three times actual damages.22 In most cases, a plaintiff encountering disability discrimination may pursue damages under either the Unruh Act or the Blind and Other Physically Disabled Persons Act, both of which prohibit the same forms of discrimination covered by the ADA.
The ADA does not provide for damages for discrimination by private businesses.23 However, under federal and California law, a prevailing plaintiff may recover his or her reasonable attorney's fees.24
In California, when access violations are unremedied, damages are available based on statutory liability and the doctrine of continuing violations.25 Under this doctrine, a person who is deterred from seeking access because of a known physical access barrier is deemed to have been denied access. Therefore, a business may be held liable for each time that person is deterred.26 However, this does not mean that the person with a disability is entitled to $4,000 in damages for every day of an architectural barrier's existence.
Some businesses argue that the availability of statutory damages and attorney's fees has led to a rash of claims concerning barriers that businesses would have fixed voluntarily if they had been given notice. These claims often seek only monetary compensation, without demanding that the barrier actually be removed. Neither Title III of the ADA nor California disability rights laws require prefiling notification or the exhaustion of administrative remedies for suits over access to businesses. Thus, a person with a disability who encounters a barrier to access is not statutorily required to inform the business (or any government agency) about the violation before filing suit and recovering damages. However, there is a developing judicial trend under both the ADA and California law to require notification by imposing limitations on recovery.
Some courts have limited the recovery of attorney's fees in situations in which a prefiling notice is not given to the offending business. In Doran v. Del Taco, Inc.,27 although the plaintiff was a prevailing party, and notification is not a prerequisite prior to filing a lawsuit, the federal district court determined as an exercise of its discretion that "no attorneys' fees are recoverable in the absence of a pre-litigation unambiguous warning notice and a reasonable opportunity to cure the ADA violation." Similarly, in Graham v. DaimlerChrysler Corporation,28 the California Supreme Court held that plaintiffs must engage in a reasonable attempt to settle their dispute with the defendant before litigation in order to recover fees as a private attorney general.
Other courts and defendants have sought the protections of the restrictions on vexatious litigants, which traditionally are used to curb pro se plaintiffs who file multiple, frivolous lawsuits against the same defendant. Recently courts have taken the position that a person with a disability who files numerous complaints over access barriers may be considered a vexatious litigant if he or she seeks compensation for similar injuries and resolves or drops many of the cases without litigation. In Molski v. Mandarin Touch Restaurant,29 the plaintiff filed a suit claiming the defendant's inaccessible restroom caused him injury. Because the plaintiff had filed over 300 suits against different defendants for access problems in the several years prior to this suit and had filed 13 suits claiming similar injuries against other defendants for the same four-day period of the claim in this case, the court found that he was a vexatious litigant. The Molski court considered five factors: 1) the plaintiff's history of litigation, 2) his motive in pursuing the lawsuit at issue, 3) whether the plaintiff was represented by counsel, 4) whether the plaintiff had caused unnecessary expense to other parties or posed an unnecessary burden on the courts, and 5) whether other sanctions would sufficiently protect the parties.
In finding that plaintiff Molski was a vexatious litigant, the court relied primarily on the plaintiff's history of filing lawsuits and found that his motive was a bad faith desire to extract cash. The court also found that the plaintiff's lawyer acted in bad faith by advising defendants not to defend themselves. The court sanctioned Molski and his attorney by requiring them to request court approval before filing any future complaints.
Disability rights advocates argue that restrictions for vexatious litigants in the context of disability discrimination litigation unduly restrict the ability of people with disabilities to enforce access laws that businesses have been ignoring since California began enacting its laws in this area 30 years ago and since the ADA went into effect 15 years ago. They also note that the number of people with disabilities who abuse the disability laws are very few. Business advocates respond that repetitive lawsuits are simply extortion attempts that do not further the goals of the disability rights laws but unduly interfere with the legitimate conduct of business activities.
Legislators have attempted to address this perceived problem through legislative proposals that would require claimants to notify businesses in advance of filing suit and provide businesses with an opportunity to fix the identified problems.30 The proposals, however, have been drafted so broadly that they would excuse businesses not just for access barriers but also for intentionally excluding people with disabilities, such as through a blanket "no pets" policy that is used to exclude blind persons with service dogs.
These proposals also have failed to recognize that federal and California law impose affirmative obligations on businesses to make their facilities accessible. Like health and safety laws, OSHA requirements, and other civil rights laws, disability laws do not defer compliance until after a complaint is filed. The statutes also do not require the person with a disability to educate a business about prohibitions against disability discrimination after a violation, thereby acting as an access consultant. Still, many businesses fail to comply with access laws despite the many years that they have been in existence.
A more palatable approach for businesses and people with disabilities may be a legislative response to the Del Taco and DaimlerChrysler decisions. This would involve an increase in statutory damages when notice of a violation is given and a business fails to make its facility accessible. If modifications are made and a plaintiff nevertheless files suit, the business could be permitted to offer evidence of the modifications as mitigation of the alleged violation.
Disability Law and Standardized Testing
The differences between California and federal law have now extended beyond employment and physical barriers. Recently, a California court ruled that California's broad definition of "disability" also applies in the realm of standardized testing.
In July 2005, a number of California students (along with the International Dyslexia Association and the National Disabled Students Union) filed a lawsuit against the Association of American Medical Colleges (AAMC) claiming that they should be afforded additional time to take the Medical College Admission Test (MCAT) as a reasonable accommodation under state law.31 In Turner v. Association of American Medical Colleges, the students claimed that their various disabilities--including attention deficit hyperactivity disorder and dyslexia--affect the conditions, manner, and duration necessary for their completion of the MCAT.32 The plaintiffs are seeking accommodations for their disabilities.
At issue in this lawsuit is the AAMC's eligibility criteria for testing accommodations. Specifically, the plaintiffs challenged the AAMC's use of the ADA "substantial limitation" analysis instead of California's "limitation" disability standard when reviewing accommodation requests made by California examinees. The plaintiffs argued that the AAMC's failure to provide accommodations violates their civil rights guaranteed by California law. This echoes the position of many disability rights advocates. The plaintiffs also maintained that because the MCAT is not designed to measure reading or writing speed but instead assesses reasoning skills, analytical abilities, and knowledge of scientific topics, extra time would not compromise the predictive validity or integrity of the exam. Without the requested accommodations, the plaintiffs claimed that they cannot demonstrate their knowledge and skills by their performance on the MCAT.
The plaintiffs asserted claims under California's Unruh Civil Rights Act33 and the Blind and Other Physically Disabled Persons Act34 but none under the ADA. The Unruh Civil Rights Act and the Blind and Other Physically Disabled Persons Act are public accommodations laws and, unlike FEHA, are not designed to regulate employer-employee relationships. Nevertheless, both statutes expressly invoke FEHA's more expansive definition of "disability."35
In an interim ruling, the court concluded that the AAMC should apply California's disability laws when considering testing accommodations for California examinees who do not qualify as "disabled" under the ADA.36 Testing organizations and other public entities will, no doubt, challenge this ruling on the grounds that it compromises the uniformity and predictive validity of standardized exams. They also will argue, as did the AAMC, that testing conditions will be anything but uniform if public entities are required to apply different state disability discrimination laws to examinees from different states instead of a uniform standard that comports with the ADA.
Arguably, the court's ruling creates an uneven playing field for MCAT examinees with similar mental or physical limitations residing in different states. However, the court acknowledged that the scores of examinees whose disabilities are accommodated pursuant to California law could be "flagged" in some way. But this solution, while seemingly leveling the playing field, may do more harm than good by singling out those who received an accommodation for discriminatory treatment when scores are reviewed for admissions purposes. Thus a victory for examinees seeking accommodations may be transitory and may ultimately result in undercutting the ADA's objectives, which focus on placing persons with disabilities on an equal footing with others rather than doling out special privileges.
Nevertheless, Congress allows states to provide more expansive protections than those contained in the ADA.37 And the court in Turner acknowledged that the task of applying a plethora of state disability laws to examinees located in various states may prove burdensome. However, the court held that the logistical nightmare painted by the AAMC did not outweigh California's interest in protecting its disabled citizens. This result was in part due to the recognition that the application of different state disability laws is no more burdensome on standardized test organizations than the complex task national employers face when adhering to a variety of state labor and employment laws.
Other decisions involving testing accommodations reveal that the disability discrimination statutes in states other than California generally are consistent with the ADA. Thus courts situated outside California typically defer to the ADA's requirements when determining whether a denial of accommodations is lawful or not.
For example, in a case decided by the Second Circuit Court of Appeals, a former medical student claimed that the National Board of Medical Examiners (NBME) discriminated against her when it denied her accommodation request.38 After twice failing the medical licensing examination, the student requested extra time to take the exam because she has dyslexia and attention deficit disorder. Thereafter, she sued the NBME for disability discrimination, alleging both state and federal claims.39 The court held that the denial of the plaintiff's accommodation request was not discriminatory. In reaching its conclusion, the court was persuaded by many of the same arguments advanced by the AAMC in the Turner case in California. Specifically, the court emphasized that the NBME's procedures are designed to ensure that individuals with "bona fide" disabilities receive accommodations and that those without disabilities do not gain an unfair advantage when sitting for the exam.40 It further noted that if the NBME departs from its procedure, including its use of the ADA's substantial limitation test, it would alter the substance of its work or "product" because the resulting scores would not be guaranteed to reflect each examinee's abilities accurately.41
In Massachusetts, a medical student with attention deficit hyperactivity disorder and a learning disability was refused a preliminary injunction requiring the NBME to grant her extra time on a medical licensing examination.42 The district court noted that because the state public accommodation statute provides the same kinds of protections as the ADA, the ADA standard is applicable to the plaintiff's federal and state claims.43 Accordingly, the court applied the ADA's substantial limitation standard, determined that the plaintiff was unlikely to show that she was disabled, and ultimately denied the plaintiff's motion for a preliminary injunction.
A district court in Ohio reached a similar result in a case involving a medical student with a reading disorder and a generalized anxiety disorder.44 Applying the ADA's disability standard, the medical student failed to prove that his reading disorder substantially limited his ability to learn and thus did not warrant extra time for the completion of his written exams.45
In West Virginia, a student who claimed to have a learning disability sued his college for its failure to provide him with reasonable testing accommodations.46 In addressing the plaintiff's claims under the ADA and state law, the district court applied the ADA's disability standard and also relied upon Department of Justice regulations that described disability as "[a]ny mental or physiological disorder such as...specific learning disabilities."47 The court granted the college's summary judgment motion, concluding that the student failed to show that he had a specific learning disability. Also, the court emphasized that the accommodation requests made by the student, including taking exams orally and receiving extra credit for passing scores, would have given him an unfair advantage over nondisabled students or would have lowered the standards for course study at the college.48
In Minnesota, an unsuccessful candidate for teacher certification sued the state board alleging that its refusal to waive the math portion of a standardized licensure test was discriminatory.49 The plaintiff was diagnosed with two learning disabilities, dyslexia and dyscalculia. Applying the ADA's disability standard to the plaintiff's state disability discrimination claims, the district court deemed the candidate's accommodation request unreasonable and granted summary judgment in favor of the state board.
It is fitting that California, which played a leading role in the early stages of the development of disability discrimination law, once again finds itself apart from the rest of the nation in this area. For the sake of people with disabilities and the businesses with which they interact on a daily basis, hopefully it will not take a span of 30 years and substantial litigation for the courts to settle what is and is not a disability and what accommodations are required to prevent discrimination.