In 2012, the Office of the Attorney General represented the California Fair Employment and Housing Commission (Commission) in City of Merced v. Fair Employment and Housing Commission. After an administrative hearing, the Commission held that the City of Merced Fire Department wrongfully rejected an applicant for employment as a firefighter due to a perceived disability in violation of the California Fair Employment and Housing Act. The City had argued that it did not need to accommodate the applicant because firefighters were required to be 100% able to do all duties without accommodation. The Commission determined that the City’s defense that the applicant could not perform his firefighter duties without endangering himself or others was without merit because the applicant could safely perform the job with minor accommodation. In fact, the applicant had been a firefighter with another agency for several years before applying with the City. The City challenged the Commission’s decision in the Superior Court, and after losing there, filed an appeal. The City eventually settled the case while the appeal was pending.
In 2008, the Legislature created the California Commission on Disability Access (Commission) to promote disability access in California through dialogue and collaboration with stakeholders including, but not limited to, the disability and business communities as well as all levels of government. The California Commission on Disability Access is a 17-member independent commission consisting of 11 public members and six ex officio nonvoting members. Under Government Code section 8299.01, the Attorney General, or her designee, is an ex officio nonvoting member of the Commission. Since its inception, a member of the Civil Rights Enforcement Section has served and continues to serve on the Commission. In this capacity, our office regularly attends Commission meetings and actively participants in robust discussions on the many ways that access for Californians with disabilities can be improved in both the public and private sectors.
Between 2006 and 2009, the Office of the Attorney General entered into significant settlements with nine different companies that constructed apartment complexes that failed to comply with state and federal accessibility laws. These apartment complexes were located in the cities of Napa, Stockton, Bakersfield, Ventura, Vacaville, Woodland, and Redding. Common allegations in the complaints filed against these companies included failure to design and construct the subject properties so that the public and common use portions of the properties were readily accessible to and usable by individuals with disabilities as required by the Americans with Disabilities Act and failure to design and construct the ground-floor units of the subject properties in accordance with the standards for accessibility provided by California regulations. The settlements in each of these cases required that the companies comply with state and federal design and construction requirements in the construction of any future buildings, correct deficiencies found by the California Attorney General’s Office, and pay civil penalties and attorneys’ fees and costs.
In 2007, the Office of the Attorney General entered into settlements with Kern and Santa Cruz counties regarding accessibility to polling places, in the actions entitled People v. County of Santa Cruz, et. al. and People v. County of Kern, et. al. Each settlement required the counties to improve the accessibility of its polling sites over a multi-year period by taking measures to locate and select more polling sites that comply with state and federal disability access laws or using temporary accessibility measures such as temporary ramps. The settlements also required the counties to employ a disability access consultant to oversee the obligations of the settlement agreement, and provide additional training on selection and setup of polling sites on election days. The settlements resolved complaints filed by the Attorney General’s office after it discovered that polling sites in Kern and Santa Cruz counties had barriers that could make access to the polling site difficult, hazardous or impossible for voters with disabilities. The settlements, remained in effect until March 31, 2011.
In 2007, the Attorney General filed a friend-of-the-court brief in Californians for Disability Rights v. Mervyn’s Department Stores, Inc., a case on appeal in the California First Appellate District. The Attorney General’s brief was filed in support of Californians for Disability Rights, who sued Mervyn’s for maintaining some of its merchandise on movable racks that were placed so closely together that persons who use wheelchairs could not access the merchandise. Asserting that it was a self-service store, Mervyn’s also reportedly did not provide store clerk assistance to help access the inaccessible merchandise. After a trial, the court held in favor of Mervyn’s finding that the store’s placement of the merchandise did not violate the federal American’s with Disabilities Act (ADA) or California’s Unruh Civil Rights Act or Disabled Persons Act. The Attorney General’s friend-of-the-court brief argued that the trial court erred in applying federal law standards i.e. the ADA, to the two California statutes mentioned above. The Court of Appeal reversed the trial court order, and, addressing only the claims predicated on the ADA, held that under federal law, the retailer must remove architectural barriers to access where such removal is “readily achievable” and, if not readily achievable because of great difficulty or expense, must adopt alternative methods for making its merchandise available to disabled individuals by the provision of customer assistance or other means. The Court of Appeal did not decide the issue regarding the purely state law claims that the Attorney General’s Office raised in its brief, but remanded those and other issues to the trial court for further proceedings.