New burden-shifting framework for ADA architectural barrier claims

Last week, in Lopez v. Catalina Channel Express, Inc., 2020 DJDJAR 9838 (Sept. 9, 2020), the 9th U.S. Circuit Court of Appeals adopted a new burden-shifting framework for summary adjudication of architectural barriers claims brought under Title III of the Americans with Disabilities Act.

Under the framework, the plaintiff bears the initial burden to "plausibly show how the cost of removing the architectural barrier at issue does not exceed the benefits under the circumstances." The burden then shifts to the defendant to establish its affirmative defense that removing the architectural barrier is not readily achievable -- in other words, that the costs of the plaintiff's proposal would in fact exceed the benefits.

This is news because neither the ADA statute nor implementing regulations state which party bears the burden of proof at summary judgment that removal of an architectural barrier is readily achievable such that a defendant can be found liable for failure to remove the barrier. Nor had the 9th Circuit previously decided the issue. As the court noted, while every circuit follows a burden-shifting framework for summary adjudication of ADA claims, and all place the initial burden of proof of the plaintiff, the detail required to meet that initial burden varies.

The district court followed the 10th Circuit's approach -- also adopted by the 8th and 11th Circuits -- which requires plaintiffs to provide "precise cost estimates" and "a specific design" regarding their proposed accommodation. The 9th Circuit adopted the 2nd Circuit's framework, after outlining why it was the most "sensible." Among those reasons are that the framework is consistent with application of other burden-shifting frameworks elsewhere in Title III. For example, the plaintiff must first prove they requested a modification to a policy, practice or procedure to accommodate their disability and that the requested modification was reasonable, then the burden shifts to the defendant to prove the modification would fundamentally alter nature of its goods and services. The court also analogized to burden-shifting frameworks for employment discrimination cases under Title I of the ADA.

Under the 9th Circuit's framework, a plaintiff's burden is not a heavy one. To meet their initial burden, the plaintiff is not required to address in detail each of the four factors for determining whether barrier removal is "readily achievable" that are set forth in the ADA Title III statute. However, the 9th Circuit noted that "it is in plaintiffs' best interest to submit as much evidence as possible pertaining to each of the [four] factors in their initial barrier-removal proposal, even if it is not required to satisfy their initial burden of plausibly showing how the costs of removal outweigh the benefits. Otherwise, plaintiffs risk meeting their initial burden but failing to ultimately prevail on summary judgment." Those four factors are:

(A) "the nature and cost of the action needed"

(B) "the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility";

C) "the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities"; and

(D) "the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity."

42 U.S.C. Section 12181(9)(A)-(D).

Interestingly, even though it rejected the framework the district court applied in granting summary judgment to the defendant, the 9th Circuit affirmed summary judgment of the ADA claim on the basis that the plaintiff failed to meet its initial, less onerous, burden under the 9th Circuit's framework.

In Lopez, the plaintiff alleged that the restroom door on defendant Catalina Channel Express' Jet Cat Express passenger ship was too narrow for his wheelchair to enter, in violation of the ADA and California Unruh Civil Rights Act. Lopez and Catalina filed cross-motions for summary judgment. In support of his ADA claim, Lopez submitted a scanty two-page declaration from a "private investigator" stating the doorway to the restroom could be widened to 34-inches if the sliding door was not blocked by a metal pin on top of the door. The district court granted summary judgment in favor of Catalina on the ADA claim and declined to exercise supplemental jurisdiction of the Unruh Civil Rights Act claim.

The 9th Circuit affirmed the district court's holding that Lopez failed to meet his initial burden of establishing that a suggested method of barrier removal was readily achievable, and found that the private investigator's declaration "only identifies the problem," but "does not bear on the question of whether remediating the problem is readily achievable." The plaintiff provided no evidence as to how much the requested barrier removal might cost, much less any evidence showing that the cost of widening the restroom doorway does not exceed the benefits (i.e., that widening the restroom doorway was readily achievable).

However, the 9th Circuit reversed the grant of summary judgment based upon an alternate basis upon which Lopez could possibly prevail on his ADA claim, but that the district court did not evaluate -- whether, even if the alteration was not readily achievable, Catalina could have made the restroom available to Lopez through alternative methods without much difficulty or expense. The court remanded and directed the district court to determine this remaining question, as to whether there is sufficient evidence that "Catalina could have made the restroom available to Lopez through alternative methods without much difficulty or expense." 