Curtis v. Home Depot USA, Inc., 2015 WL 351437 (E.D. Cal. 2015) is not an unusual case, but that makes it a good reminder that an ADA policy doesn’t do any good if it isn’t implemented. The fact that there are so many cases like Curtis proves that many businesses don’t understand that just because it’s written doesn’t make it true.
In Curtis one of the plaintiff’s many complaints about his local Home Depot was that the accessible route from the accessible parking to the store’s front door was frequently blocked by merchandise displays. Before filing suit he complained to the store manager, but without effect. Home Depot’s defense was that the issue was moot because it had a policy against blocking the access aisle and, after the lawsuit was filed, the manager testified that the access aisles were not being blocked.
It was at this point that Home Depot’s failure to “walk the walk” began to hurt it. The court observed that:
These [plaintiff’s] complaints would have been made at a time when a Home Depot policy against obstruction was in place. . . . In other words, whatever policy was in force did not prevent Curtis from experiencing non-temporary obstructions on numerous occasions, nor did the existence of the policy change results when Curtis complained to store managers.
The situation was not improved by what was apparently a newer policy given to the store manager before his deposition:
Given the nature of the barrier, what appears to be a relatively new policy, and Curtis’s experiences despite a 5–year old policy against obstruction, Home Depot’s voluntary cessation of obstructing the accessible route does not moot the controversy.
The result was that the plaintiff was granted summary judgment against Home Depot on his claims concerning the accessible route. Home Depot was able to avoid summary judgment on other claims, and even persuaded the judge that some claims should be dismissed. Those victories will probably not count for much at the of the day. In most ADA cases the largest expense of the case is attorneys fees, and a defendant who loses on any substantial claim will end up paying the plaintiff’s attorneys. One need only read the opinion to realize those fees are bound to be substantial in this case.
As I said at the beginning, Curtis v. Home Depot is typical of cases in which a business relies on its ADA policy as a defense to an ADA claim but finds that because the policy was not honored, its presence is more a liability than a benefit. The takeaway for business is simple. Having an ADA policy is just a start. To be an effective defense the policy must be included in new employee training, understood by the employees and enforced by management. If it isn’t, the time spent creating it will have been wasted.