Department of Fair Employment and Housing v. Law School Admission Council Inc

Filing 34

ORDER RE THIRD PARTY LETTER OF JUNE 25, 2012. Signed by Judge Edward M. Chen on 07/06/2012. (Attachments: # 1 Letter)(emclc2, COURT STAFF) (Filed on 7/6/2012)

~o
The
Legal Aid Society­
Employment Law
Center

180 Montgomery Street, Suite 600 San Francisco, California 94104-4244
TEL [phone] FAX [phone] m/TDD 415 593 0091 www.las-ek.orv

Putting Justice to Work

June 25, 2012

Joan Messing Graff
Denise M, Hulett
J,res~c; Sf

LtgaMn

William C, McNeill III

SENIOR STAFF ATTORNEYS
Claudia Center
Miel1 ••, T. Gaitley
Chri.topl1.r Ho
Jinny Kim
Elizabeth Kristen
Sharon Terman

The Honorable Edward M, Chen
United States District Court
Northern District of California
450 Golden Gate Avenue
San Francisco, CA 94102
RE:

Robert Borton

Department of Fair Employment and Housing v. Law School Admission
Council. Inc., Case No. CV 12-1830-EMC
Amicus Curiae Letter

SOeClfJ: 1

Tami'a Butler

Dear Judge Chen:

Fernando Flores

The Legal Aid Society - Employment Law Center is a public interest legal
organization dedicated to advancing and protecting the civil rights of persons with disabilities.
The LAS-ELC is recognized for its expertise in the interpretation of state and federal disability
rights statutes. The LAS-ELC has expertise with respect to the disability rights portions of the
California's Unruh Civil Rights Act at issue in this motion, and is familiar with the
corresponding legislative history associated with AB 1077 (1992) and AB 2222 (2000). The
LAS-ELC has represented individual in disability discrimination claims brought under the
Unruh Act, including in Goldman v. Standard Insurance Company, 341 F.3d 1023 (2003).
The LAS-ELC was the sponsor of the 2000 legislation. As well, the LAS-ELC participated in
the drafting of the ADA Amendments Act of 2008.

Gin. Gemello

Prof.ssor Joseph R Grodin
Specal
Raeha.1 Langston
Staff A~of'ey

Araceli Martinez-Olguin
Staff Arro'ney

Charlone Nos.
Sraddel'1 r.ellow
Julia Parish
~'40r¥S

Ruth Silv", Taube
Carole Vigne

S:af Attof"1ey
Mary Broughton
Paralegal
Djuna Gray
Pa~alegal

Pamela Mijehell
~'bgabof1 f,sslstan~

Jerome Na'agawa
~lbgatlon Asslsta"1;

Amer:Cor..:s U?j.3

The LAS-ELC has a particular interest in combating disability-based discrimination
against law students, law school applicants, lawyers, and other legal professionals. The
integration of the legal profession to include qualified individuals with disabilities, and the
elimination of disability bias within the profession and at entry pOints to law school and to bar
membership are key equality goals. As well, they are long-term strategies for bringing
disability awareness and competency to all members of our legal system, including decision­
makers, Related, the LAS-ELC served as amicus counsel on behalf of disability organizations
in Turner v. Association of American Medical Colleges, Case No. RG 04166148 (Alameda
Cty. Super.).
As such, the LAS-ELC has represented numerous individuals with disabilities seeking
accommodations and fair treatment on the LSAT, in law school, and from the California State
Bar, and has served in an advisory capacity with respect to the National Association of Law
Students with Disabilities. These and similar efforts are shared by several disability rights

The Honorable Edward M, Chen
June 25,2012
Page 2

organizations and advocates across the county, and have coincided with a slow but steady increase in the
numbers of practicing lawyers with disabilities.
Despite such progress, too few people with disabilities are practicing law. The ABA reports that
approximately seven percent of its members identify themselves as having a disability. See ABA
Commission on Mental and Physical Disability Law, ABA Disability Statistics Report (2011), at
http://www.americanbar.org/contenUdam/aba/uncategorized/2011 /2011 0314_aba_disability_statistics_repo
rt.authcheckdam.pdf. This percentqge is far lower than one would expect given the national statistics on
the percentage of Americans with disabilities. Id. Among other reasons for trlis disparity, "there is a
pipeline problem." Individuals with disabilities are less likely to apply and be admitted to law school. Id.
With respect to the DFEH v. LSAC litigation, we represent two of the claimants, Andrew Quan and
Nicholas Jones. We are preparing a motion for intervention and the relevant papers for filing shortly.
However, our motion to intervene will not be determined prior to the hearing on the LSAC's motion to
dismiss,
We respectfully request that this amicus letter be filed in this matter on behalf of Mr. Quan, Mr.
Jones, and the Legal Aid Society - Employment Law Center.
LEGAL ARGUMENT

I.

The State Law Rights Granted by the California Legislature in Enacting and Amending the
Unruh Civil Rights Act Are Independent of Federal Rights Created Under the Americans with
Disabilities Act, and Are Enforceable by the Department of Fair Employment and Housing.

The State of California has a long and independent history of enacting laws designed to ensure
and promote the integration of persons with disabilities into all institutions of public life, and to provide
effective remedies against disability discrimination. While at times referencing and incorporating the
standards of federal law as a minimum floor of protection for Californians with disabilities, these enactments
create independent state law rights and are statements of California's law and public policy.

A

The Plain Language of the Statutory Scheme Grants the DFEH the Power and Duty to
Enforce Violations of California Civil Code Section 51 Such as Those Alleged Here.

More than fifteen years before the enactment of the federal ADA, the Legislature in 1973 amended
the Fair Employment Practices Act to include physical handicap as a prohibited basis for discrimination, In
1977, the Legislature declared: "It is the policy of this state to encourage and enable disabled persons to
participate fully in the social and economic life of the state." Stats. 1977, ch. 1196, § 2 (adding Cal. Gov't
Code § 19230); see also In Re Marriage of Carney, 24 Cal. 3d 725, 740 (1979) ("Both the state and federal
governments now pursue the commendable goal of total integration of handicapped persons into the
mainstream of society," and quoting California Government Code section 19230).
In 1980, the Legislature moved various civil rights provisions into a section of the California
Government Code titled the Fair Employment and Housing Act, and created the Department of Fair
Employment and Housing (DFEH) as a state law enforcement agency. Stats, 1980, ch. 992, § 4. This
legislation granted the DFEH the "power and duty" to, inter alia, "receive, investigate, and conciliate

The Honorable Edward M. Chen
June 25. 2012
Page 3

complaints alleging a violation of Section 51 ... of the Civil Code," emphasizing that: "The remedies and
procedures of this part shall be independent of any other remedy or procedure that might apply." Stats.
1980, ch. 992, § 4, p. 3145 (adding Cal. Gov't Code § 12930) (emphasis added); see also id. at p. 3154
(adding Cal. Gov't Code § 12948 ["It shall be an unlawful practice under this part for a person to deny or to
aid, incite, or conspire in the denial of the rights created by Section 51 ... of the Civil Code."]).
The legislation further granted the DFEH the authority to enforce - via an accusation or at the
respondent's discretion a civil action - various rights, including "the rights created by Section 51 ... of the
[California] Civil Code." Stats. 1980, ch. 992, § 4, pp. 3154, 3155-3157 (adding Cal. Gov't Code §§ 12948,
12960, 12965). The right of the DFEH to pursue a group or class action in court was specifically
delineated. Id. at pp. 3155-56 (adding Cal. Gov't Code § 12961).
In 1987, the Legislature amended the Unruh Civil Rights Act - first adopted in its modern form in
1959 - to add "blindness or other physical disability" to the list of protected classifications. Stats. 1987, ch.
159, § 1; see also Harris v. Capital Growth Investors XIV, 52 Cal.3d 1142, 1153 (1991) (describing Act's
history); Goldman v. Standard Insurance Company, 341 F.3d at 1029-30 (same).
In 1992, responding to the enactment of the federal ADA, the Legislature amended the Unruh Act
as part of omnibus legislation designed to "strengthen California law where it is weaker than the ADA and
to retain California law when it provides more protection than the ADA." Stats. 1992, ch. 913, § 1 (AB
1077); see also Assembly Judiciary Committee, AB 1077 (Jan. 22,1992), at 2. The 1992 law amends the
Unruh Act to prohibit discrimination on the basis of "disability," and provides that, "A violation of the right of
any individual under the Americans with Disabilities Act of 1990 (Public Law 101-336) shall also constitute
a violation of this section." Stats. 1992, ch. 913, § 3; Cal. Gov't Code § 51 (D; Goldman, 341 F.3d at 1030.
In 2000, in response to a trio of U.S. Supreme Court cases narrowing the federal definition of
"disability" under the ADA, the Legislature adopted clarifying changes to the definitions of mental disability
and physical disability found in California's civil rights statutes, and incorporated these definitions into the
Unruh Act. Stats. 2000, ch. 1049, §§ 2,5, pp. 2-8 (AB 2222) (amending Cal. Civ. Code § 51 and Cal. Gov't
Code § 12926). The Legislature adopted a codified statement of legislative intent reaffirming the
independent nature of California's disability discrimination jurisprudence:
The Legislature finds and declares as follows: ... The law of this state in the area of disabilities
provides protections independent from those in the federal Americans with Disabilities Act of 1990
(P.L. 101-336). Although the federal act provides a floor of protection, this state's law has always,
even prior to passage of the federal act, afforded additional protections.
Stats. 2000, ch. 1049,
Throughout, and over nearly 40 years, the Legislature has acted to create rights and remedies
under state law for Californians with disabilities. While these laws make reference federal law standards as
delineating a minimum floor of protection, the rights themselves are, of course, creatures of state law.
Indeed, the California Code includes literally hundreds of references to various federal laws, including anti­

The Honorable Edward M. Chen
June 25. 2012
Page 4

discrimination laws: 1 these references do not convert claims arising under these state law provisions into
"rights created by federal law."
Thus, when the legislature granted the DFEH the right to pursue "the denial of rights created by
Section 51," see Cal. Gov't Code §§ 12948, 12960, it meant just that. Whether the claim arises under
subsection (b) or subsection (D, it is a "right created by Section 51." The LSAC's argument that aclaim
arising under subsection (D of Civil Code section 51 is somehow "created by" federal law, such that the
designated state law enforcement agency does not have the authority to prosecute the claim, cannot be
considered seriously. Cf. Motion to Dismiss, at 8 (quoting selectively from section 51).

I See. e.g.. Cal. Civ. Code § 54(c) ("A violation of the right of an individual under the Americans with Disabilities Act
... also constitutes a violation of this section."); Cal. Civ. Code § 54.1 (d) ("A violation of the right of an individual
under the Americans with Disabilities Act ... also constitutes a violation of this section"); Cal. Civ. Code § 54.8(k) ("In
no case shall this section be construed to prescribe a lesser standard of accessibility or usability than that provided
by Title II of the Americans with Disabilities Act of 1990 ... and federal regulations adopted pursuant to that act."):
Cal. Gov't Code § 4450(c} ("in no case shall the State Architect's regulations ... prescribe a lesser standard of
accessibility or usability than [federal guidelines adopted] to implement the Americans with Disabilities Act of 1990");
Cal. Gov't Code § 4451 (d) (provisions "shall meet or exceed the requirements of Title III ... of the Americans with
Disabilities Act of 1990"); Cal. Gov't Code § 4500(b) ("[I]f the laws of this state ... prescribe higher standards than the
Americans with Disabilities Act of 1990 ... and federal regulations adopted pursuant thereto, then those public transit
facilitates and operations shall meet the higher standards."); Cal. Gov't Code § 7260.5(5)(c)(4) ("The policies and
procedures of this chapter shall be administered in a manner which is consistent with ... Title VI of the Civil Rights
Act of 1964."); Cal. Gov't Code § 11135(b) (programs "shall meet the protections and prohibitions contained in ... the
Americans with Disabilities Act of 1990 ... and the federal rules and regulations adopted in implementation thereof,
except that if the laws of this state prescribe stronger protections and prohibitions, the programs ... shall be subject
to the stronger protections and prohibitions."); Cal. Gov't Code § 12926(m) ("if the definition of 'disability' used in the
federal Americans with Disabilities Act ... would result in broader protection of the civil rights of individuals ... then
that broader protection or coverage shall be deemed incorporated by reference .. and shall prevail"); Cal. Gov't
Code § 12945.2(s) (''Leave taken by an employee pursuant to this section shall run concurrently with leave taken
pursuant to the FMLA ..."); Cal. Health & Safety Code § 19952(d) ("In no case shall this section be construed to
prescribe a lesser standard of accessibility or usability than provided by the [federal guidelines] to implement the
Americans with Disabilities Act of 1990 ..."); Cal. Ins. Code § 790.03(D(4) ("sex based differentials ... shall not be
required for [insurance] which may be considered tenns, conditions, or privileges of employment as these terms are
used in Title VII of the Civil Rights Act of 1964"); Cal. Pen. Code § 365.5(d) ("guide dog" includes any dog "that meets
the definitional criteria under federal regulations adopted to implement Title III of the Americans with Disabilities Act
of 1990 ...."); Cal. Pen. Code § 1347.5(k)("This section shall not be construed ... [to] prescribe a lesser standard of
accessibility or usability for persons with disabilities than that provided by Title II of the Americans with Disabilities Act
...."); Cal. Rev. & Tax Code § 74.6(D (describing state tax deduction for construction "to meet or exceed the
accessibility standards of the 1990 Americans with Disabilities Act"); Cal. Veh. Code § 11202(a)(9) (school must
provide written compliance with ADA); Cal. Veh. Code § 11216.2(a) (licenses issued to traffic schools "shall be
automatically suspended for 30 days ... [in more than one final detennination has been made that the traffic violator
school has violated a student's rights under the federal Americans with Disabilities Act"); Cal. WeI. & Inst. Code §
19000(c) (state "vocational rehabilitation and independent living programs shall be consistent with the national policy
toward people with disabilities articulated in the Americans with Disabilities Act ..."); Cal. WeI. & Inst. Code §
19151(b) ("The term 'Individual with a severe disability' shall have the same meaning as specified in the federal
Rehabilitation Act ....").

The Honorable Edward M. Chen
June 25, 2012
Page 5

B,

Caselaw Cited by the LSAC Does Not Alter the Analysis,

The LSAC's argument that the California Court of Appeals decision in Turner supports its position
must also be rejected, In Turner, the state appellate court reasoned that, because the "ADA requires
reasonable accommodations on standardized tests for those with qualifying disabilitiesL] '" [a]ny violation
of this ADA requirement would also be a violation of the Unruh Act[.]" Turner v, Association of American
Medical Colleges, 167 Cal.AppAth 1401, 1410 (2008); accord Bass v. County of Butte, 458 F.3d 978, 981
(9th Cir. 2006) ("The state purpose of Bill 1077 was to 'conform state anti-discrimination law with the
provisions of the Americans with Disabilities Act.'''). The DFEH's action is consistent with Turner.
The remaining cases cited by the LSAC are inapposite. Two stand for the long-standing
proposition that discrimination claims brought by employees against employers are not actionable under
California Civil Code section 51. See Rojo v, Kliger, 52 Cal.3d 65, 77 (1990); Bass, 458 F.3d at 982. A
third case found that the Siskiyou County Jail is not a "business establishment" for purposes of the Unruh
act, but is a "public entity" covered by Title II of the ADA. Anderson v. County of Siskiyou, No. C10-01428
SBA, 2010 WL 3619821 (N.D. Cal. Sept. 13.2010), at **5-6,
Collectively, these cases indicate that the ADA violations that are actionable under California Civil
Code section 51 (D, and are thus enforceable by the DFEH (including via a class or group complaint) under
California Government Code sections 12948, 12960, 12961, and 12965, are those claims that arise under
Title III of the ADA. Title III of the ADA is the section of the federal disability legislation that addresses
discrimination by public accommodations, see 42 USC § 12182 ("Prohibition of discrimination by public
accommodations") - the very topic of the Unruh Civil Rights Act. See, e.g., Anderson, supra, at * 6 ("The
Unruh Act 'firmly established the right of all persons to nondiscriminatory treatment by establishments that
engage in business transactions with the public."') (citing and quoting from Warfield v. Peninsula Golf &
Country Club, 10 CalAth 594 (1995)).
Here, this litigation is brought on behalf of disabled Californians seeking to access services
provided by the LSAC in exchange for fees charged. Unlike the employers in Rojo and Bass, or the public
entity in Anderson, the LSAC is a private business entity that is engaging in business transactions with the
public. It is a "public accommodation" covered generally by Title III, see 42 U.S.C. §§ 12181(7)(F) ("public
accommodation" include service providers), and is also an entity offering "examinations or courses related
to applications" covered specifically by Title III, see 42 U.S.C. § 12189. The LSAC also falls squarely within
the category "all business establishments of every kind whatsoever." See Cal. Civ. Code § 51 (b).
The LSAC's motion is without merit. It should be denied in its entirety.
II.

The Parties' Joint Motion for Relief From General Order No. 56 Should Be Granted.

The LAS-ELC is familiar with judicial and legislative efforts to manage physical access litigation
brought under Title III of the ADA and under Section 51, et seq. of the California Civil Code. For example,
the LAS-ELC participated in a working group including disability rights organizations and business
representatives convened by lawmakers in 2005 to draft legislation to address concerns raised regarding
such litigation while ensuring continued compliance. (The legislation was not enacted.) The LAS-ELC is
aware of the requirements of California Civil Code section 55.51, et seq., which was added by the
Legislature in 2008. Stats. 2008, ch. 549 (SB 1608). The LAS-ELC is familiar with General Order No. 56.

The Honorable Edward M, Chen
June 25, 2012
Page 6

The characteristics of physical access litigation that have generated such procedures are not
present in this dispute, As well, the parties have had an ample opportunity for conciliation and settlement
prior to the initiation of litigation, The parties' joint motion for relief from General Order No. 56 should be
granted.
Respectfully submitted,

Claudia Center

PROOF OF SERVICE
2

I, Djuna Gray, declare:

3

I am a citizen of the United States, over 18 years of age, employed in the County of

4

San Francisco, and not a party to or interested in the within entitled action. I am an

5

employee of The LEGAL AID SOCIETY-EMPLOYMENT LAW CENTER, and my
6

7

business address 180 Montgomery Street, Suite 600, San Francisco, California 94104. On

8

June 25, 2012 I served the within:

9

Amicus Curiae Letter

10

X

by serving by mail delivery to:

11

12

13

14

15
16

17

18

19

20
21

22

Nelson Chan

Susan Saylor

Department of Fair Employment and Housing

Oakland Legal Unit

39141 Civic Center Drive, Suite 250

Fremont, CA 94538

Robert E. Darbv

Julie Capell -

Fulbright & Jaworski, LLP

555 South Flower Street, 41 s( Floor

Los Angeles, CA 90071 .

Robert Burgoyne

Caroline Mew

Fulbright & Jaworski, LLP

801 Pennsylvania Avenue, NW

Washington, D.C. 20004

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed on June 25, 2012 at San Francisco, California.

24

25
26

27

28

Djuna Gray