Bell v. Office Depot: An Alarming California Trend Seeking Aggregate Statutory Damages in Disability Access Litigation?


California’s Unruh Civil Rights Act outlaws discrimination based on, among other things, disability. Unlike the analogous federal Americans with Disabilities Act, which affords only injunctive relief, the Unruh Act also provides statutory damages to private litigants (of a minimum of US$4,000 per violation), even without a showing of discriminatory intent. As construed by recent precedent, the Unruh Act’s statutory damages provision may create substantial legal risks to large California retailers, permitting more plaintiffs alleging violations of the Act to survive motions to dismiss. A class action complaint alleging Unruh Act violations filed this month against Office Depot in the Central District of California follows recent settlements by Target and Burger King of Unruh Act class actions for substantial damages and attorneys’ fees. This may indicate an unsettling trend for California retailers, suggesting that the in terrorem effect of potentially expansive litigation may force settlement of claims regardless of merit.

The Unruh Act provides that “all persons” in California “are entitled to the full and equal accommodations, advantages, facilities, privileges or services in all business establishments of every kind whatsoever.” Cal. Civil Code § 51(b). An amendment in 1992 specified that a “violation of the right of any individual under the Americans with Disabilities Act of 1990 [which does not itself permit damages to private litigants] shall also constitute a violation” of the Unruh Act. The California legislature has steadily increased the Unruh Act’s statutory damages provision from its original US$50 in 1905 to its current minimum of US$4,000 per violation, as amended in 2001. Cal. Civil Code § 52(a).

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