Over the last few years, small businesses across Minnesota have been targeted by a flurry of lawsuits alleging violations of federal and state disability laws, namely the Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA). The lawsuits allege that the targeted businesses have discriminated against individuals with disabilities because they have failed to make their facilities accessible as required by the ADA and MHRA.
Businesses need to be aware of their rights and responsibilities under federal and state disability laws. These laws impose a vast number of requirements on businesses.
Businesses covered by the ADA are required to modify their business policies and procedures to serve customers with disabilities (referred to as the general nondiscrimination requirements). The ADA requires businesses to remove architectural barriers in existing facilities and ensure that newly constructed or altered facilities are accessible to individuals with disabilities (referred to as building accessibility laws). At the state level, the Minnesota Human Rights Act (MHRA) provides an additional layer of protection for individuals with disabilities.
Most of the litigation in Minnesota centers around claims that the targeted businesses have failed to make their buildings accessible—the focus of this article. This article is intended to provide an overview of federal and state laws governing building accessibility, as well as discuss recent litigation targeting small businesses for alleged violations of the ADA and MHRA.
Federal and State Accessibility Requirements for Businesses
1. Americans with Disabilities Act of 1990 (ADA)
On July 26, 1990, President George H.W. Bush signed into law the ADA. The ADA provides a complex legal framework that prohibits discrimination on the basis of disability. Title III of the ADA prohibits discrimination in public accommodations and commercial facilities. If a business meets the definition of a “public accommodation” or “commercial facility,” it must comply with the ADA.
Public Accommodations. Businesses that provide goods or services to the public and fall within any one of 12 defined categories, including but not limited to stores, restaurants, bars, service establishments, theaters, hotels, recreational facilities, private museums and schools, doctors' and dentists' offices, and shopping malls, are considered a "public accommodation" for purposes of the ADA. Private clubs and religious organizations are exempt from the ADA's title III requirements.
Commercial Facilities. Businesses whose operations affect commerce and that are intended for nonresidential use by a private entity but which are not aircrafts, railroad locomotives, railroad freight cars, railroad cabooses, commuter or intercity passenger rail cars, or facilities expressly exempted from coverage under the Fair Housing Act of 1968 are considered a “commercial facility.”
In 1991, the Department of Justice(DOJ) promulgated federal regulations to implement the requirements of title III of the ADA, including Standards for Accessible Design based on ADA Accessibility Guidelines (1991 Standards). These rules set the standard for what makes a building or facility accessible. After a lengthy rulemaking process, the DOJ updated these rules, now referred to as the 2010 ADA Standards for Accessible Design (2010 Standards). The 2010 Standards set minimum requirements for newly designed and constructed or altered public accommodations and commercial facilities to be readily accessible to and usable by individuals with disabilities.
a. New Construction and Alterations
Facilities constructed or altered on or after March 15, 2012 must comply with the 2010 Standards. The 2010 Standards codify accessibility design requirements for newly constructed and altered public accommodations and commercial facilities, including scoping and technical requirements for accessibility to sites, facilities, buildings, and elements by individuals with disabilities.
The 2010 Standards require that all newly constructed business facilities must be accessible and usable by people with disabilities.
When a business undertakes an alteration of its facilities, to the maximum extent feasible, it must make the alteration accessible. Alterations include, but are not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. Normal building is not considered an alteration unless it affects the usability of the facility.
b. Existing Facilities
i. Obligation to Remove Readily Achievable Barriers
The ADA imposes an ongoing obligation on businesses to remove architectural barriers, including communication barriers that are structural in nature, in existing facilities where such removal is readily achievable, i.e. easily accomplishable and able to be carried out without much difficulty or expense. When removing barriers, businesses are required to comply with the 2010 Standards.
The ADA regulations recommend the following priorities for barrier removal: (1) providing access to your business from public sidewalks, parking areas, and public transportation; (2) providing access to the goods and services your business offers; (3) providing access to public restrooms; and (4) removing barriers to other amenities offered to the public, such as drinking fountains.
Where a business can demonstrate that barrier removal is not readily achievable, the business must make its goods, services, facilities, privileges, advantages, or accommodations available through alternative methods, if those methods are readily achievable.
A business that fails to meet its obligation to remove readily achievable barriers may open the door to potential litigation, as we have recently observed throughout Minnesota.
ii. Safe Harbor Provision
If a business facility was built or altered in the past 20 years in compliance with the 1991 Standards, or it removed barriers to specific elements in compliance with those standards, it does not have to make further modifications to the facility. This provision is applied on an element-by-element basis and is referred to as the "safe harbor." If a business chooses to alter elements that were in compliance with the 1991 Standards, the safe harbor no longer applies to those elements. For example, if a business restripes its parking lot, which is considered an alteration, it would need to meet the ratio of van accessible spaces in the 2010 Standards.
2. Minnesota Human Rights Act (MHRA)
At the state level, the Minnesota Human Rights Act (MHRA) provides an additional layer of protection for individuals with disabilities.
The MHRA applies to businesses that meet the definition of a “place of public accommodation,” which is defined as a “business, accommodation, refreshment, entertainment, recreation, or transportation facility of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public.”
Under the MHRA, it is an unfair discriminatory practice (1) to deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of a disability; or (2) for a place of public accommodation not to make reasonable accommodation to the known physical, sensory, or mental disability of a disabled person.
If a business violates the MHRA, a court of law has authority to issue an order directing the business to cease and desist from the unfair discriminatory practice and to take such affirmative action as reasonably necessary to effectuate the intent of the MHRA. The court also has authority to require the business to pay a civil penalty to the state and may award a plaintiff who has suffered discrimination, damages for mental anguish and punitive damages.
Both the ADA and the MHRA allow the prevailing party in any civil action or administrative proceeding to recover reasonable attorney fees.
Lawsuits Targeting Small Businesses in Minnesota
Recently, there have been a large number of lawsuits brought against businesses in Minnesota for alleged violations of the ADA and MHRA. In most cases, the plaintiff in these cases is a non-profit organization called the Disability Support Alliance (DSA). DSA, by and through its attorney, Paul Hansmeier, is currently engaged in roughly 50 lawsuits against businesses across the state, including a federal lawsuit against a bowling alley in Mankato and a tavern in Minneapolis. There has been some media coverage about these cases, including articles by the Star Tribune, Mankato Free Press, and KTOE News.
DSA claims that its purpose is to “eliminate discrimination on the basis of disability and to promote the betterment of the lives of persons living with disabilities.” However, according to disability advocates, as noted in a recent Star Tribune article, “are more about winning cash settlements than making changes that would add ramps, widen aisles and allow wheelchair access.”
The lawsuits filed by DSA tend to assert similar claims (i.e. alleged violations of building access laws and bias offenses) against small businesses and generally always seek a court order (1) determining that the defendant business’ facilities and conduct violate federal and state disability laws; (2) requiring the defendant business to modify its facility so that it complies with disability laws; (3) requiring the defendant business to pay a civil penalty to the state; and (3) awarding damages to plaintiff, including punitive damages and attorney fees.
Responding to a Disability-Related Claim or Lawsuit
If you are faced with a claim that your business has violated the ADA, MHRA, or some other law, or perhaps even confronted with a lawsuit (i.e. served a summons and complaint), you should immediately:
1. Seek Legal Counsel: Contact an attorney that has familiarity with disability laws to discuss how best to respond to the allegations; and
2. Notify Your Insurance Carrier: Promptly review your insurance policies to determine whether you may have coverage applicable to the claims brought against you. Businesses should notify their insurance agent and carrier as to the pending claims. Your insurance policy may provide coverage for hiring an attorney to represent you against these types of claims, as well as any liability that may follow. Businesses may want to consult with an attorney that has a background in insurance coverage law to determine whether insurance coverage exists.
Tax Credits and Deductions
To encourage businesses to comply with the ADA, the Internal Revenue Code provides a tax credit (the Disabled Access Credit) to businesses with 30 or fewer full-time employees or with total revenues of $1 million or less to undertake certain activities that will ensure compliance. Eligible expenses may include the cost of undertaking barrier removal and alterations to improve accessibility, providing sign-language interpreters, or making material available in accessible formats such as Braille, audiotape, or large print.
The Internal Revenue Code also provides a tax deduction for businesses (with no size or revenue restrictions) for costs incurred in removing architectural barriers in existing facilities or alterations. The maximum deduction is $15,000 per year.
More information on these tax incentives can be found here.
Information and Assistance
For more information and assistance, business should utilize the following helpful resources:
- Understanding Your Rights and Responsibilities Guide;
- Americans with Disabilities Act Technical Assistance Manual;
- Americans with Disabilities Act Guide;
- Department of Justice Handbook for Small Businesses; and
- Minnesota State Council on Disability's Blue Book: Building Access Survey.
If you need additional assistance, contact the Minnesota State Council on Disability. The State Council on Disability’s Building Code Accessibility Specialist is Margot Imdieke-Cross. Ms. Imdieke-Cross can be reached at (651) 361-7800 or firstname.lastname@example.org. Find more resources at www.disability.state.mn.us.
Businesses need to be aware of their rights and responsibilities under federal and state disability laws. Doing so will not only provide individuals with disabilities greater access to the goods and services provided by these businesses but will also protect against the threat of potential litigation.
This article was written by Michael J. Belaen. Michael serves as the director of public affairs and legal counsel to the Saint Paul Area Chamber of Commerce. Michael is a cum laude graduate of the University of Hamline School of Law.
Disclaimer: This article is intended to provide general information only and shall not be construed as rendering any legal advice or opinion. An attorney-client relationship is not created by reading this article.