By Myra Villamor, Minh Vu, and Kristina Launey

Seyfarth Synopsis: The Ninth Circuit Court of Appeals adopts a burden-shifting framework for analyzing claims involving the removal of pre-ADA barriers which requires the plaintiff to “plausibly show how the cost of removing the architectural barrier at issue does not exceed the benefits under the circumstances.”

Under the Americans with Disabilities Act (ADA), public accommodations must remove architectural barriers that pre-date the ADA and have not been altered if the removal is “readily achievable.”  The ADA and its regulations do not state which party bears the burden of showing that barrier removal is or is not readily achievable, so courts have had to devise their own approaches.

On September 9, 2020, in Lopez v. Catalina Channel Express, Inc., the Ninth Circuit ruled that to survive summary judgment, a 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.”  And while a plaintiff  is not required – in meeting its initial burden – to address in detail each of the four factors for determining whether barrier removal is “readily achievable,” the Ninth 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. 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. § 12181(9)(A)–(D).

The Ninth Circuit then stated that “[if]f the plaintiff makes a plausible showing that the requested accommodation is readily achievable, the burden shifts to the defendant to counter the plaintiff’s initial showing, and at that point the district court is required under the statute to weigh each of the § 12181(9) factors to determine whether removal of the architectural barrier is readily achievable or not.”

Even though the district court had applied a more stringent standard in granting summary judgment to the defendant, the Ninth Circuit nonetheless affirmed the district court’s conclusion that the plaintiff failed to meet his initial, less onerous, burden under its newly-articulated burden shifting framework.  Specifically, the plaintiff alleged that the restroom door on defendant Catalina Channel Express’s Jet Cat Express passenger ship was too narrow for his wheelchair to enter, in violation of the ADA and California Unruh Civil Rights Act. On cross-motions for summary judgment, 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 Ninth Circuit concluded 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 Ninth Circuit found 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).

The Ninth Circuit’s decision on this point did not conclude the matter, however. The Ninth Circuit held that the plaintiff could still prevail if he could show that Catalina could have made the restroom available to Lopez through alternative methods without much difficulty or expense. Because the district court did not evaluate this issue, the Ninth Circuit 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.”

There are two key takeaways for businesses from this decision:  In considering whether or not the removal of a pre-ADA barrier is readily achievable, a business must carefully analyze and document the four factors set forth in the regulation and weigh the cost and benefit of the barrier removal. Additionally, it must determine if there are alternative ways to make the goods and/or services in question accessible to the plaintiff without much difficulty or expense. If there are, those alternative methods should be implemented.