In 2012, California’s Department of Fair Employment and Housing (“DFEH”) filed a lawsuit against the Law School Admissions Council (“LSAC”) alleging that LSAC was discriminating against, and routinely failing to grant appropriate accommodations for, test takers with disabilities on the Law School Admissions Test (“LSAT”). DFEH alleged that LSAC was violating the ADA and the state’s Unruh Civil Rights Act in several ways, including by considering “mitigating measures” in determining a test taker’s disability status, by routinely denying testing accommodations, and by “flagging” test scores achieved when extended time was provided as a testing accommodation. Three individuals intervened in the action, as did the Department of Justice (“DOJ”).
After two years of costly litigation, on May 20, 2014, the parties announced an agreement to resolve the matter and filed a proposed Consent Decree with the court. The Consent Decree includes a permanent injunction specifying a number of affirmative steps that LSAC must take to ensure the LSAT is accessible to persons with disabilities. In addition, LSAC may no longer “flag” test scores achieved when extended time is provided as an accommodation.
Pursuant to the settlement, LSAC must pay $55,000 in civil penalties to the DOJ, $7,675,000 in damages, and $1,000,000 in attorneys’ fees to the DFEH and the Legal Aid Society, which represented the individual plaintiffs. The damages award included a large settlement fund to be distributed to persons affected by the alleged discrimination during the statutory period, and allocations of damages to the DFEH, DOJ, and to the three individual plaintiffs.
While it may be tempting to relegate this enforcement action to admissions testing, the case serves to remind businesses of their obligation to provide accommodations to individuals with disabilities so as to ensure equal access to goods, services, and facilities. Where necessary to ensure equal access, a public accommodation must make reasonable modifications to its policies, practices, and procedures, and must also provide auxiliary aids and services to individuals with disabilities, subject to only to fairly limited defenses.