Private entities that have 15 or more employees (and all public employers) are required to comply with Title I of the Americans with Disabilities Act (ADA). Title I prohibits disability discrimination with respect to compensation, job duties, and other aspects of employment, and it requires covered employers to provide reasonable accommodations to those who need them.

Crucially, these are not the only disability-related compliance obligations that employers can have under federal law. The ADA’s other Titles establish compliance obligations that pertain to accessibility and other aspects of businesses’ operations, and ADA violations in these areas can also create substantial liability exposure. Employers must comply with the state’s disability protections as well—and, here too, allegations of unlawful discrimination (among other violations) can have serious financial consequences. Increasingly, we are seeing claims filed under the ADA by California plaintiffs' firms targeting both in-state and out-of-state employers--with out-of-state employers being forced to defend themselves in California courts in many
cases.

“Employers nationwide need to make disability-related compliance a priority. This is a significant area of risk exposure, and employers that fail to do what is required can find themselves subject to both civil complaints and government enforcement actions. Increasingly, this includes civil complaints filed by California plaintiffs firms against both in-state and out-of-state businesses.” – James Bell, Senior Trial Attorney Oberheiden P.C. 

For private-sector employers and state and local governments, defending against ADA claims (and state-law disability-related claims) in the California courts requires an informed, strategic, and proactive approach. Failure to ensure compliance can create exposure to substantial liability; and, in the event of an administrative complaint or a lawsuit filed in state or federal court, an unsuccessful defense could result in an award of damages, attorney fees, and other remedies.

Defending Against Employment-Related Claims Under the Americans with Disabilities Act (ADA) in California

When pursuing disability discrimination claims and claims related to requests for reasonable accommodations under Title I of the ADA, employees must generally begin the process by filing a complaint (or “charge of discrimination”) with the U.S. Equal Employment Opportunity Commission (EEOC). However, EEOC complaints can ultimately lead to litigation in court, and plaintiffs can directly pursue lawsuits under the ADA’s other Titles.

Defending Against an ADA Complaint Filed with the EEOC

Defending against an ADA complaint filed with the EEOC presents unique challenges; and, as a result, it is important for employers targeted under Title I of the ADA to hire legal counsel who has specific experience defending businesses in these cases. The EEOC investigates employee complaints that meet its basic eligibility criteria; and, in addition to issuing “right to sue” letters once it verifies an employee’s allegations, the EEOC also works with the U.S. Department of Justice to pursue enforcement actions when warranted.

Defending Against ADA Lawsuits in California

Along with employment-related claims under Title I, businesses can also face ADA lawsuits in California alleging violations of Title III, Title IV, and Title V (and public entities can face lawsuits under Title II). These lawsuits can involve an extremely wide range of allegations, and lawsuits filed by serial plaintiffs have become increasingly common in recent years. Plaintiffs’ lawyers use these Titles of the ADA to aggressively pursue claims as well, including “drive by” claims in which plaintiffs have not actually visited the business they are suing.

5 Key Considerations for Employers Targeted with Disability-Related Allegations in California

In all cases, employers targeted with disability-related allegations need to work with experienced counsel to build and execute sound defense strategies. Here are five key considerations for employers that find themselves in this scenario:

1. Being Prepared to Affirmatively Demonstrate ADA Compliance Can Be a Highly Effective Defense Strategy

Businesses that are prepared to affirmatively demonstrate ADA compliance will generally be well-positioned to defend against any disability-related allegations they may face. Conversely, those that are not prepared to affirmatively demonstrate compliance can face significant difficulty in fending off substantial liability.

With this in mind, when facing an EEOC complaint or an ADA lawsuit, a key early step in the process is to focus on assessing both (i) ADA compliance; and, (ii) the business’s ability to affirmatively demonstrate compliance. Engaging an experienced law firm is essential, as a team of lawyers who have experience defending clients against ADA claims will be able to accurately assess what documentation a business has available to protect itself.

2. Targeted Employers (Including Small Business Owners) Must Be Prepared for All Potential Allegations

While some cases involve allegations of specific ADA violations, it is becoming increasingly common for plaintiffs’ firms to use the ADA to pursue wide-ranging charges against targeted businesses. As a result, targeted employers must ensure that they are prepared to defend against all potential allegations. This includes (but is not limited to):

Disability Discrimination

Title I of the ADA prohibits disability discrimination in all aspects of employment. This includes discrimination with respect to hiring and job assignments, pay raises and promotions, and termination. Employers covered under Title I of the ADA must incur the expenses necessary to develop and implement effective anti-discrimination compliance programs.

Failure to Provide Reasonable Accommodations

Employers covered under Title I of the ADA must also ensure that they comply with its reasonable accommodation provisions. As a general rule, covered employers must provide disability accommodations to employees who request them, unless doing so would cause undue hardship. Some examples of potential reasonable accommodations include:

● Allowing employees to bring service animals to work
● Providing screen readers and other resources
● Providing accessible workspaces and ensuring accessible common areas
● Making building modifications (i.e., installing a self-opening front door) to facilitate accessibility
● Making technological modifications (i.e., ensuring that employees with disabilities are capable of performing security verification to access their devices)

Crucially, even when an employee’s requested accommodation would cause undue hardship, the employer must still generally work with the employee to find an alternate mutually satisfactory solution. Additionally, when denying a disability accommodation on the basis of undue hardship, employers must ensure that they are prepared to affirmatively demonstrate the undue hardship to the EEOC or in court.

Architectural Barriers and Other Disability-Related Violations

Beyond Title I compliance, businesses must ensure compliance with the ADA’s protections for disabled people pertaining to public access, public accommodation, public services, and security services and systems as well. These protections are significantly broader than many business owners and executives realize. For example, not only do they apply to physical places of employment, but they can apply to a business’s website as well--and website-related lawsuits are becoming increasingly common, especially in California where state laws are particularly favorable to local consumers.

3. Employers that Are Not ADA Compliant Must Make Informed and Strategic Decisions About Their Defense

While employers that are prepared to affirmatively demonstrate ADA compliance should generally be able to avoid unwarranted liability with an effective defense, employers that are not ADA compliant must make informed and strategic decisions about how best to proceed under the circumstances at hand.

Similar to defending against claims related to data breaches involving malicious bots when companies have not devoted sufficient resources to cybersecurity compliance, defending against disability-related claims when companies have not devoted sufficient resources to ADA compliance can pose both significant challenges and significant risks. Depending on the circumstances, it may be in employers’ best interests to consider settlement in some cases—though employers should not target a settlement unless and until they are certain that this is the most prudent approach under the circumstances.

4. Employers in California Can Face (and Must Be Prepared to Face) State Law Claims As Well

Along with facing EEOC complaints and litigation (including DOJ enforcement litigation) under the ADA, employers can face disability-related claims under state law as well. California laws that provide employees and other individuals with disability-related protections include the California Disabled Persons Act (CDPA), Fair Employment and Housing Act (FEHA), and Unruh Civil Rights Act, among others.

Employees and other individuals can sue under these laws in various circumstances, and various state agencies can pursue enforcement cases under these laws as well. As a result, here too, an informed and comprehensive approach is essential when facing potential liability—as failing to assert a successful defense in one action could lead to broader liability exposure.

5. Targeted Employers (Including Private and Public Entities) Need to Make it a Priority to Remain Compliant Going Forward

Finally, in light of the risks involved with facing disability-related claims and litigation, targeted employers need to prioritize ADA compliance and state law compliance going forward. Among other things, this will involve:

● Conducting a comprehensive assessment of the business’s disability-related compliance obligations under the ADA and California law
● Developing custom-tailored disability-related compliance policies and procedures
● Implementing the business’s custom-tailored compliance policies and procedures—including providing training programs for relevant personnel
● Monitoring for disability-related compliance violations on an ongoing basis (i.e., by conducting periodic compliance audits)
● Proactively documenting the business’s compliance and internal enforcement efforts on an ongoing basis

By taking these steps (among others), private and public employers of all sizes can both mitigate their risk of facing disability-related claims and maximize their chances of executing a successful defense when claims arise. While employers may not be able to eliminate their risk of facing ADA and California state law claims entirely, they can (and should) ensure that they are prepared to defend themselves when necessary.