I wrote last week about the difficulty in determining just what the ADA requires in cases concerning physical accessibility. A recent decision from California shows how hard it can be to know what the “reasonable accommodation” provisions of the ADA require. For businesses who want to comply with the ADA and want to avoid litigation this is bad news. I’d like to suggest though that a simple principle will help businesses do the right thing. Just have your employees ask themselves what would they would do if customer were their mother.
Henning v Fry’s Electronics, Inc., 2014 WL 6679514 (N.D. Cal. Nov. 24, 2014) concerned the problems a mobility impaired individual faced when trying to buy a TV on credit. The facts appeared largely undisputed. When it took some time for a sales person to help him he asked if he could sit down and was directed to a massage chair for sale a short distance away. After he decided to buy the TV he went to check out, where the process of applying for credit took some 45 minutes to an hour. He asked for a chair, but it didn’t arrive for some time and he left before completing the purchase because, he claimed, he could not stand up any longer. After dismissing a number of claims or elements of claims the Court finally concluded that it could not dismiss a claim based on the failure to provide a chair at the checkout line. Here is the Court’s reasoning:
So, as discussed, plaintiff’s claim essentially boils down to whether Fry’s provided him with a chair quickly enough. On the record presented, the court concludes that fact issues preclude summary judgment—namely, whether store employees at the checkout counter were indifferent to plaintiff’s requests for a chair and ignored him for nearly an hour (as Henning contends) or whether Fry’s took plaintiff’s request seriously, but under the circumstances, simply could not locate a chair sooner than it did.
Fry’s may well win this case at trial, but in ADA litigation the real expense is rarely ADA compliance. The significant expense is attorney’s fees, and a business that has to go to trial has already lost for all practical purposes.
Fry’s “policy” with respect to chairs was simple: it did not provide chairs for customers. The ADA question was whether it had to modify that policy by providing a chair for disabled individuals engaged in lengthy transactions, and if so how long Fry’s could take to find a chair. I think it is fair to assume that for this particular Fry’s store this problem had never arisen, and it might never arise again. This is a fundamental problem with reasonable accommodation claims in a retail store. Every disability is different, and there is no way to anticipate and then create a policy or procedure to account for every kind of accommodation any particular disabled patron might need.
Before businesses just throw up their hands, I would suggest they adopt a “what would you do for your mother” policy. If the check-out clerk’s mother asked for a chair because she was having trouble standing would it really take him an hour to find one? Perhaps he couldn’t leave his position — would his manager have taken an hour? I’m sure there are exceptions, but I suspect that if businesses simply train their employees to treat every disabled patron as well as they would treat a disabled parent or brother or sister they will almost always provide the kind of reasonable accommodation the ADA requires. They may well provide more than the ADA requires, but going too far isn’t likely to lead to litigation.
There are serious policy reasons why we shouldn’t have laws that just require that a business be nice or courteous. Like it or not though, in many cases that is precisely what the reasonable accommodation provisions of the ADA require. “Reasonable accommodation” is often dressed up with legalese and multi-part tests that create the false impression of precision, but ultimately what is “reasonable” will be different in every case. Until the law is changed — and that is extremely unlikely — the best a business can do is ask its employees to treat any person with a disability as well as they would treat their mother. It’s a rule almost anyone can understand and apply.
