Minnesota’s Human Rights Act (Minnesota Statutes 363A) duplicates and often expands rights protected under federal laws. One provision that has garnered attention recently is 363A.11 – public accommodations. This provision parallels federal protections found in the Americans with Disabilities Act, specifically addressing architectural barriers that prevent persons with disabilities equal access to public accommodations.
Under the ADA, a person excluded from a business due to an architectural barrier can bring a lawsuit seeking an injunction – an order that the business remove the barrier. While the plaintiff could recover attorneys’ fees, damages are not available under the federal ADA. Under the Minnesota Human Rights Act, though, a plaintiff may recover damages.
Although these laws have been in place for more than a quarter century, they’ve come under scrutiny recently because a group used the state law as means to leverage monetary settlements from businesses without actually requiring the businesses they sued (or threatened to sue) to remove the architectural barriers. This had the unique effect of uniting business groups and disability advocates.
As Vice President of MetroIBA, I worked with the Minnesota Department of Human Rights, Legal Aid, Minnesota Association of Justice, the State Council on Disability, and other business groups. The goal was to craft a bill that would incentivize businesses to remove architectural barriers while making it less expensive for businesses to defend themselves. The compromise bill passed unanimously in May 2016, and is now found at Minnesota Statutes section 363A.331.
The new law has two important pieces. First, it regulates demand letters. The law does not make a demand letter a prerequisite to starting a lawsuit, but it does regulate the content of the letter. The law provides a statutory short form including mandatory language. Any demand letter must:
• Cite the law allegedly violated;
• Identify the specific architectural barrier in place that violates the law; and
• Provide at least 30 days for the business to respond.
The demand letter cannot make a demand for money or an offer to accept money, but it can offer to engage in settlement negotiations.
The law also changes the substance of a discrimination claim. Specifically, it adds three affirmative defenses:
• The architectural barrier has been removed;
• Compliance with the accessibility requirements is not readily achievable; and
• The alleged architectural barrier does not actually violate the law.
Typically, a business has the burden to prove an affirmative defense. But this new law does something different. If a business has an audit from a certified professional (as defined by the law) concluding that the business complies with the law, the burden shifts to the plaintiff to prove the audit is wrong. This burden shift may be the most powerful piece of the new law, as it allows businesses with an audit to enjoy a presumption of compliance.
The new law serves the interests of Minnesota businesses and of people with disabilities. The law provides an avenue for businesses to get out of a lawsuit quickly when that lawsuit is meritless. In doing so, it should make is more cost effective to litigate these cases instead of paying a nominal settlement to make a baseless lawsuit go away. And it encourages businesses to take the time to make sure they comply with state and federal law so that patrons with disabilities aren’t faced with barriers.