Introduction
Minnesota businesses may soon see differences in disability access claims.
On May 22, 2016, Minnesota’s Governor Mark Dayton signed into law a new amendment to the Minnesota Human Rights Act (“MHRA”). The amendment governs what must occur before attorneys can bring suit under the MHRA challenging architectural barriers that limit accessibility to public spaces. The new law is set forth in Minn. Stat. § 363A.331 (“Section 331”) and is entitled “Actions Involving Architectural Barriers that Limit Accessibility.” Human Rights Act, Ch. 363A, § 28, § 331, 159 H.F.No. 2955 (2016) (amending § 28 and creating new § 331, the latter of which will be the primary discussion of this article).
The new law went into effect on May 23, 2016, the day following final enactment. Minn. Stat. § 363A.331, subdivision 5 (2016). Section 331 sets forth the process and requirements with which private parties must comply before they sue for alleged architectural accessibility violations. Id.
The new law follows a string of lawsuits brought by a lawyer, pain management physician, and wheelchair user who has filed almost 100 lawsuits in Minneapolis and the surrounding metropolitan area for alleged violations of the MHRA. John Reinan, Doctor, lawyer, wheelchair user: It’s the same person. And he’s filing disability lawsuits by the bundle, The Star Tribune, May 31, 2016.
These lawsuits are purportedly being brought to address long-standing accessibility laws believed by the person suing to be widely ignored. This trend is not limited to Minnesota. In recent years, public accessibility lawsuits have significantly risen across the nation. Angus Loten, Disability Lawsuits Against Small Businesses Soar, The Wall Street Journal, Oct. 15, 2014, (citing a nearly 55% rise in disability access lawsuits between 2013 and 2014).
But the new MHRA amendment might slow this trend in Minnesota, by placing pre-suit requirements on certain people seeking to sue over accessibility. HF 2955 & SF 2584, WEEKLY LEGISLATIVE UPDATE (Minn. State Council on Disability), Apr.15, 2016.
If Section 331 proves successful, other states may consider it as a model to revise their own disability access laws.
How it will generally work
Generally, this new Section 331 in the MHRA codifies the process by which attorneys may bring public accessibility lawsuits. It requires specific events to occur before suit is brought, and it also provides specific affirmative defenses for businesses to use when defending these suits:
- subdivision 1 contains various definitions. It defines “[a]ccessibility requirements under law” as requirements applying to the removal of architectural barriers that may limit access to business establishments or public accommodations by persons with disabilities under both the MHRA and the public accommodation provisions of the Americans with Disabilities Act. Stat. § 363A.331, subdivision 1 (2016).
- subdivision 2 states that, before an attorney may file a lawsuit alleging accessibility violations, a notice must be sent that cites the law that is at issue, identifies each alleged architectural barrier with specificity, and provides at least 30-days for the business or place of public accommodation to respond. Id., at subdivision 2.
- subdivision 2 also prohibits the pre-suit notice from including a request or demand for money. However, an offer to engage in pre-litigation settlement negotiation is allowable. Id.
- subdivision 3 provides a statutory short form for the demand letter. Id. at subdivision 3.
- subdivision 4 lists affirmative defenses available to the business, including that: (1) the architectural violation has been brought into compliance, (2) compliance is “not readily achievable or cannot be accomplished by alternative means”, or (3) the alleged architectural barrier at issue is not actually a violation. Id. at subdivision 4.
A plaintiff bringing such a suit will generally allege that a particular architectural barrier makes a place of accommodation inaccessible and that removal of the barrier is readily achievable. The amendments do not change the analysis of what is “readily achievable,” which a Minnesota federal district court examined as recently as this February. Disability Support Alliance v. Heartwood Enters., 2016 U.S. Dist. LEXIS 23072, *16 (D. Minn. Feb. 24, 2016).
The party suing over an alleged inaccessible public space will still be required to present evidence showing that an accommodation is readily achievable, taking into consideration “the cost, nature of needed alteration, available resources, and other analogous factors . . . .” See e.g., id. Should the party suing be able to present evidence showing that the removal of the architectural barrier is readily achievable, then the burden will shift to the business to prove that it is not. Id. In addition to availing itself of other defenses, a business can point to expense, aesthetics, historical significance, and economic and operational impact to demonstrate that the change is “not readily achievable”. Id.
Going forward
The new law has been largely perceived as a business-friendly amendment that will limit and formalize the way represented parties may sue over public accessibility issues. Reinan, supra note 3.
The notice requirements of subdivision 2 obligate a lawyer bringing suit to first notify the business of the substance of the alleged violation. This should give any business receiving such a notice the opportunity to address any problems, including to make corrections, before being sued. It should also help discourage potentially meritless suits, not only because of the pre-suit requirements, but also because the affirmative defenses available to the defendant business are now clear and formalized. That said, the litigation process is expensive. Thus, settlement may remain an attractive alternative.
Despite the intention and perception of Section 331, it is unclear what the actual impact of Section 331 will be for businesses. Time will tell whether this new statutory provision will have a substantial effect on making a more “fully accessible Minnesota” or on reducing “the occurrence of [public accessibility access] lawsuits.” HF 2955 & SF 2584, Weekly Legislative Update (Minn. State Council on Disability), Apr. 15, 2016.
In the interim, businesses are wise to heed the “notice letters” received from people claiming accessibility violations and to respond as promptly as possible with real fixes, if appropriate.
We are grateful to the contributions that summer intern Neda Raeker made to this article.
