Levi's Stadium Case Illustrates 'Associational Discrimination'

The Americans with Disabilities Act became law in 1990. It prohibits discrimination against individuals with disabilities in all areas of public life, including all places open to the general public. Levi's Stadium opened as the home of the NFL's San Francisco 49ers in 2014, and today ranks as the fourth most expensive venue in the league at a cost of $1.3 billion.

Kristi Schoepfer-Bochicchio ([email protected]) is chair of the Physical Education, Sport and Human Performance Department at Winthrop University.

Considered state of the art in many ways at the time of its debut, Levi's Stadium has since been accused of significant accessibility shortcomings by one individual with disabilities and his wife in Abdul Nevarez v. Forty Niners Football Company LLC, case number 5:16-cv-07013, filed last December in the U.S. District Court for the Northern District of California.

Abdul Nevarez and his wife Priscilla visited Levi's Stadium for football and other events on four separate occasions from 2014 to 2016. Mr. Nevarez's right leg is amputated above the knee, and he also suffers from significant nerve damage in his left leg and arm. He requires a wheelchair for mobility, and has a parking placard that allows him access to parking reserved for individuals with disabilities. Mrs. Nevarez has no disabilities, but she attends events at the stadium with her husband to assist him.

In December 2016, Nevarez and his wife sued the San Francisco Forty Niners Football Company LLC, the Forty Niners SC Stadium Company LLC, the National Football League, the City of Santa Clara, the Santa Clara Stadium Authority and Ticketmaster LLC. Subsequent to the initial complaint, the plaintiffs dismissed the National Football League (with prejudice) and amended their complaint to include a third plaintiff. The amended complaint also included the Forty Niners Stadium Management Company LLC and Live Nation Entertainment Inc. as defendants.
 

Barriers to access
The Nevarezes allege that on each visit to the stadium they faced multiple barriers that prevented equal access and enjoyment of stadium events. First, they asserted that it was difficult for them to access the stadium from the parking lots. They allege to have encountered extreme difficulty with the stadium shuttle system during each of their four visits, specifically noting that the shuttle system from certain parking lots made it very difficult to access the stadium box office to get tickets.

Regarding tickets, the plaintiffs allege that they encountered significant difficulty purchasing accessible seating in advance of events. According to the complaint, they were told that the stadium box office would not sell tickets over the phone, that tickets needed to be purchased in person or online, and that accessible tickets need to be acquired at the box office on a first-come, first-served basis.

Further, the plaintiffs argue that the security checkpoints at the stadium entry were not wide enough to accommodate Mr. Nevarez's wheelchair, that gate entries marked with the wheelchair symbol were not actually accessible, and that metal detectors were too narrow for a wheelchair. The plaintiffs contend it was difficult to determine how Mr. Nevarez could gain access to the stadium, and that once they found the correct location, he was only admitted after being patted down.

The Nevarezes argue that once inside the stadium, poor signage made locating elevators challenging. Moreover, staff did not know where elevators are located, according to the Nevarezes, who said they found the process of finding an elevator exhausting.

Additionally, the plaintiffs claim to have experienced embarrassment when they were invited by friends to the suite level for an event and the suite itself lacked accessible seating. Mr. Nevarez "was in everyone's way," they claim, and there was no access from the suite for him to actually see the event.

Lastly, the plaintiffs argue that obtaining companion seating for Mrs. Nevarez and other family members was extremely difficult on multiple occasions.
 

Associational discrimination
Plaintiffs allege discrimination under Title II and Title III of the ADA, as well as under the Unruh Act. Title II prohibits public entities from discriminating against any individual with a disability by denying them the benefit of services, programs or activities of a public entity. Title III states that "no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation." Additionally, Title III prohibits participation in an unequal benefit; requires reasonable modifications in policies, practices and procedures; and requires removal of architectural barriers if such is readily achievable.

The Unruh Act (California Civil Code §§51) provides that all persons within California (including those with a disability) are entitled to the "full and equal accommodations, advantages, facilities, privileges or services in all business establishments of every kind whatsoever."

In response to the plaintiffs' claims, the stadium-related defendants filed a partial motion to dismiss. Specifically, the stadium defendants asserted that Mrs. Nevarez could not allege discrimination under either the ADA or the Unruh Act because she does not have standing to do so.

All parties agree that Mrs. Nevarez is not an individual with a disability within the definition of disability provided by the ADA or the Unruh Act. Rather, Mrs. Nevarez's claims for disability discrimination under the ADA are "associational discrimination" claims; she claims to derive her individual right to sue solely through her association with her husband.

Courts have held that for a plaintiff to have standing to bring an associational discrimination claim under the ADA, a plaintiff must allege a "specific, direct and separate" injury as a result of association with the individual with the actual disability. If the plaintiff's allegation of discrimination is entirely "derivative" of the individual with the disability, the able-bodied individual will not have standing to file a lawsuit.

In this case, Mrs. Nevarez alleges that she suffered frustration, emotional distress, physical exhaustion and discrimination resulting from having to help Mr. Nevarez overcome many physical access barriers at the stadium. In contrast, the stadium defendants cite ADA guidance to assert that the associational discrimination claim should be applied narrowly, and that Mrs. Nevarez needs to prove she was directly discriminated against. For example, the stadium defendants argue that if Mrs. Nevarez were denied entry because of Mr. Nevarez's disability, she would have a separate claim. The stadium defendants assert that the associational discrimination claim is limited to access, and that struggling to assist a disabled individual is not the valid basis of an associational discrimination claim.

The court disagreed with the stadium defendants, citing three recent case decisions in which plaintiffs in similar circumstances to those of Mrs. Nevarez were found to have satisfied the requirements of standing for an associational discrimination claim. Specifically, in Daubert v. City of Lindsay (2014), Cortez v. City of Porterville (2014) and Moore v. Equity Residential Management (2017), plaintiffs who filed associational discrimination claims for experiencing circumstances such as physical difficulty, frustration, emotional anguish, anxiety and embarrassment were all found to have standing in their lawsuits. The court could not draw a distinction between Mrs. Nevarez and these plaintiffs.
 

Emerging precedent
It is important to note that the decision on the stadium defendant's motion to dismiss does not address whether any of the alleged violations of the ADA actually violate federal law. This decision cannot be used as guidance regarding the stadium defendants' compliance with the requirements of Title II and Title III of the ADA or the Unruh Act.

However, the continuance of the case and the grant of standing to Mrs. Nevarez using the associational discrimination provision of the ADA is significant in its potential impact to facility owners and operators. The emerging legal precedent regarding associational discrimination is to interpret such discrimination broadly. As the case moves forward, it may be that the stadium defendants are absolved of liability, but the allowance of Mrs. Nevarez as a plaintiff creates more difficulty in that defense and should serve as a reminder to facility owners and operators that the ADA associational discrimination claim is as valid as a claim of discrimination by a patron with disabilities.

While facility owners and operators may believe themselves to be compliant with the mandates of the ADA, they should consider what is required of able-bodied patrons who assist those with disabilities. In addition to considering whether patrons with disabilities have full and equal access and enjoyment of goods and services, must they now consider the potential level of frustration experienced by an able-bodied patron providing assistance?

That may appear to place an unreasonable burden on the facility owner/operator, but considering the experience of able-bodied assistants in cases decided and undecided, it seems a prudent consideration for those who may face liability under the ADA.

This article originally appeared in the November|December 2017 issue of Athletic Business with the title "How the ADA protects those assisting individuals with disabilities." Athletic Business is a free magazine for professionals in the athletic, fitness and recreation industry. Click here to subscribe.