The Tenth Circuit makes the ADA 2010 Standards a true safe harbor for business.

jordan-petra-photos-2A door is just a door, no matter how grand. That is what the Tenth Circuit’s held in Colorado Cross Disability Coal. v. Abercrombie & Fitch Co., 2014 WL 4290589 (10th Cir. 2014) when it reaffirmed what businesses have always believed; that is, that the 2010 Standards and their predecessor the ADAAG are a real safe harbor for business.* This is, of course, the Hollister front porch case that I and many others have blogged about in the past. In it the plaintiffs claim that the raised “front porch” at the center entrance for Hollister stores violates the ADA because it is not accessible (it is reached by steps). They claim that although the entrances that flank it on either side are accessible,  the center entrance provides a unique “experience” and so it must be accessible too. The Tenth Circuit has now rejected that claim, holding that the store’s compliance with the 2010 Standards eliminates any claim under the ADA. It’s analysis is worth studying for any business that has been or may be sued under the ADA.

The Tenth Circuit begins by observing that a facility which complies with the 2010 Standards is, by definition, accessible. It rejects any notion that some “overarching” purpose of the ADA can create an ADA violation when a facility meets the Standards. It then notes that the Hollister stores appear on their face to comply with the 2010 Standards because at least 50% of the entrances are accessible.
The Tenth Circuit next rejects the idea that there was a discriminatory policy or practice at issue because the porch was “used” in ways that were not available to those in wheelchairs. It argues that it was the design of the porch that made it inaccessible, not its use, and the matters related to design are comprehensively covered by the 2010 Standards.  Since each Hollister store was in compliance with the Standards, the “use” of the porch was not a violation of the ADA.
Finally, the Tenth Circuit turned to what was really the heart of the plaintiff’s claim, which was that a particular place (the porch) had to be accessible to every patron. Here the Tenth Circuit turns again to the Standards, finding in essence that if a part of the building is specifically covered by the Standards then it cannot be re-defined as a separate “space” in order to impose an additional accessibility requirement. Here is what the Court writes:
Even so, the idea that the porch is a “lobby” or “customer lounge” is a weak one, as the porch is not a destination in itself but a means of passage into the store. The standards provide no safety if an entity complies with the guidelines plainly regulating a contemplated feature (e.g., an “access point to a building or portion of a building or facility used for the purpose of entering,” i.e., an “entrance,” 1991 Standard 3.5) only later to be told that the feature is also a “space” that must be accessible unless fitting into a limited exemption.

The key phrase, of course, is “not a destination in itself.” The Court appears unpersuaded that, despite Hollister’s desire to create a lounge space, anyone actually goes to the porch but doesn’t go on into the store. It is a fancier entrance than those to either side, but just an entrance. Althought the Court doesn’t mention it, but there is clearly a slippery slope argument to be made. If the center entrance is flanked by columns while the accessible entrances on either side are not can a disabled plaintiff claim discrimination because the center entrance makes you feel more important? What if you add statues of lions? What if you add a merchandise display identical to a display in the store? What if you add a display that is not available in the store?  The Court’s holding avoids this problem by simply saying that an entrance is an entrance, and if the building has the required accessible entrances the details don’t matter.

The Hollister case is far from over. It was decided over a lengthy dissent, making en banc consideration likely. In addition, the result is only a remand because the case was decided in the plaintiffs’ favor on summary judgment.  Even if the argument for a customer lounge is “a weak one” it may still be proven true when all the facts are in. Nonetheless, the central point of the decision seems likely to remain valid; that is, the 2010 Standards and ADAAG are intended to provide a safe harbor, and theories of discrimination undermining that safe harbor will be greeted with skepticism at the very least.

*Thanks to my colleague William Goren for pointing this case out to me. His blog at williamgoren.com is well worth reading

ADA and FHA Policies – One size does not fit all.

One size fits all
“Defendants cannot guarantee that an individual employee will not act inappropriately in a particular instance. However, under the ADA, Defendants can and must ensure that they adopt the proper policies and procedures to train their employees on dealing with disabled individuals and make reasonable efforts to ensure that those policies and procedures are properly carried out and enforced.”
Stan v. Wal-Mart Stores, Inc., 111 F. Supp. 2d 119, 127 (N.D.N.Y. 2000).

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“Disability” and “Handicap” are not the same, and it matters

wheelchair-question-markMany lawyers and governmental entities believe that anyone who is “disabled” for purposes of the Americans with Disabilities Act (ADA)  must also be handicapped for purposes of the Fair Housing Act (FHA). This used to be true, but may not be anymore. The difference between a disability and a handicap has important practical implications for multi-family communities and others who are subject to the accessibility provisions of the FHA. Continue reading

Unconventional wisdom concerning pet deposits under the Fair Housing Act.

thomas's-leaf-monkey_0337One common bit of conventional wisdom under the FHA is that apartments and other housing providers cannot require a pet deposit for an assistance animal or service animal. This is certainly the position of HUD and the DOJ. (See, HUD memo dated April 25, 2013 and see http://www.ada.gov/qasrvc.htm). The position is based on the notion that because a disabled person is required to have a service animal it is discriminatory to require anything of such a person that would not be required of a person without a disability who had no pet. See Intermountain Fair Hous. Council v. CVE Falls Park, L.L.C., 2011 WL 2945824 (D. Idaho 2011). The question of whether it indeed violates the FHA to require what would be more rationally called an “animal damage deposit” is really more nuanced than this. Continue reading

ADA accessibility in movie theaters — do the DOJ’s plans make sense?

interiorOn July 23 the Depart of Justice published a notice of proposed rulemaking on accessibility in movie theaters for those with vision and hearing disabilities. (http://www.ada.gov/regs2014/movie_nprm.html). The public comment period begins today. The proposed rules will require most movie theaters to buy equipment so that customers with hearing disabilities and vision disabilities can participate in the movie watching experience.  There are numerous limits and caveats, but what I find most interesting is the analysis of costs and benefits, in which the DOJ admits that it has little or no data to support a claim that the benefits are worth the costs. Consider some of the DOJ’s admissions about its own ignorance: Continue reading

Accessibility Defense

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