Policy FolderOn March 5, 2015 the Ninth Circuit issued an opinion in one of the longest running ADA lawsuits around. Chapman v. Pier 1 Imports (U.S.) Inc.,  2015 WL 925586 (9th Cir. Mar. 5, 2015). Like the Home Depot case I wrote about a few weeks ago the issue in Chapman v. Pier 1 concerned obstructions that blocked access and a policy that was supposed to prevent such obstructions. Unlike Home Depot, Chapman v. Pier 1 includes some clear guidelines for businesses that want to make sure they are “walking the walk.”

First, the Ninth Circuit confirmed the distinction between “temporary” and “transitory” obstacles. Pier 1 argued that items blocking its store aisles were “temporary,” but seemed to mean this only as the opposite of “permanent.” Thus, a merchandise display that was only going to be in place for a few days or a season would be “temporary.” Parsing the regulations and Technical Assistance Manual the Ninth Circuit agreed with the District Court that the exception for temporary barriers to access applied only to items that were “transitory;” that is, items that were intended to be moved immediately or in a very short time. The example it gave, taken from the regulatory materials, was items being moved from a door to a storage area that temporary blocked an access aisle. A merchandise display would not be “transitory” because it is placed in its intended final location, even if it will be there only for a limited period of time.

Second, the Ninth Circuit made it clear that repeated obstructions would, at some point, justify a conclusion as a matter of law that the ADA had been violated. Chapman alleged that he had encountered blocked merchandise aisles on 11 separate visits to the store. Agreeing with the District Court, the Ninth Circuit concluded that this evidence justified a finding as a matter of law that Pier 1 was violating the ADA even though when Pier 1’s expert visited the aisles were clear. However, the Ninth Circuit found that the District Court was wrong when it concluded as a matter of law that Pier 1 had violated the ADA with respect to its service counters. Chapman alleged that the counters were cluttered and therefore not usable by him on two or three of his eleven visits. The Ninth Circuit disagreed about the extent of the clutter, but noted as well that on most visits the service counters were clear. It found based on this that Chapman had not established a violation of the ADA as a matter of law.

Finally, the Ninth Circuit confirmed the well established principle that an ADA violation cannot be avoided by providing staff to move “temporary” obstructions upon request. While there are circumstances in which a willingness to help will ameliorate an ADA violation, in general a disabled person must be able to use the facility without assistance.

For business the takeaway is straightforward. Your policies must forbid “temporary” obstructions unless they are genuinely transitory. Temporary or seasonal displays of merchandise and movable merchandise like furniture cannot block access without creating an ADA violation. As for the effectiveness of your policies, although the Ninth Circuit didn’t state it as a rule, you may be able to avoid ADA liability if your policy is effective 70% of the time. That is the percentage of the time that Chapman found the sales counters clear of obstructions. It won’t be helpful if it is only effective 15% of the time, which is about how often the aisles at Pier 1 were clear during all the various inspections. You’ve got to walk the walk at least 70% of the time.